SER Andre King v. Jim Ielapi, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED State ex rel. Andre King, Petitioner Below, Petitioner March 9, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 11-0237 (Mercer County 09-C-375) Jim Ielapi, Warden, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Andre King, by counsel, Natalie N. Hager, appeals from the circuit court s order denying his petition for post-conviction habeas corpus relief. The State of West Virginia, by counsel, Robert D. Goldberg, has filed its response on behalf of respondent, Jim Ielapi, Warden. Petitioner seeks a reversal of the circuit court s decision and other relief as the Court deems fair and just. This Court has considered the parties briefs and the record on appeal. The facts and legal arguments are adequately presented in the parties written briefs and the record on appeal, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. Petitioner was convicted by a jury of two counts of delivery of a Schedule II controlled substance on May 30, 2007. Petitioner s appeal from his criminal conviction was denied by the Court on February 13, 2008. A petition and an amended petition for a writ of habeas corpus were filed, and, due to a change in habeas counsel, a second amended petition was filed on May 18, 2010. Following an omnibus hearing, the circuit court entered its January 31, 2011, Order Denying the Petitioner s Petition for Writ of Habeas Corpus. Petitioner now appeals the denial of his habeas corpus petition below and raises multiple issues, including ineffective assistance of pretrial counsel and trial counsel. In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review. Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). 1 The Court has carefully considered the merits of each of petitioner s arguments as set forth in his petition for appeal and has reviewed the record designated on appeal. Finding no error in the denial of habeas corpus relief, the Court affirms the decision of the circuit court and fully incorporates and adopts, herein, the lower court s detailed and well reasoned Order Denying the Petitioner s Petition for Writ of Habeas Corpus entered on January 31, 2011. The Clerk of Court is directed to attach a copy of the same hereto. For the foregoing reasons, we affirm. Affirmed. ISSUED: March 9, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 2 NOTED CIVIL DOGKET JAN 3 1 2(l11 IN THE CIRCUIT COURT OF MERCER COUNTY, WEST GINIA JULIE BALL CLERK CIRCUIT COURT MERCER COUNTY STATE OF WEST VIRGINIA EX REL. ANDRE KING, Petitioner, v. CIVIL CASE NO. 09-C-375 JIMIELAPI, Warden, PRUNTYTOWN CORRECTIONAL CENTER, Respondent. ORDER DENYING THE PETITIONER'S PETITION FOR WRIT OF HABEAS' CORPUS On August 2, 2010, this matter came b~fore the Court, the Honorable Judge DerekC. Swope presiding, for a hearing on the Petitioner's Petition for Post C.onviction Habeas Corpl:1:S Relief, brought pursuant t.o the provisions of Chapter 53, Article 4A, of the West Virginia Code, . , as; amended, which was filed on his behalfJiY and through his c.ourt-appointed counsel, Titn~r,;{; ·;iHajpyyy, Esq., (styled as Second Amended Petition for Writ of Habeas Corpus, Ad SubjicienduinY· 'a.11tton the Petitioner's Petition for Writ ot-Habeas Corpus Ad Subjiciendu';' and Memorandum ·/i!ilStctpport. The Petitioner and his counsel appeared. Scott Ash, Esq., Assistant Prosecuting Attotney for Mercer County, appeared on behalf ofthe State of West Virginia. The Petitioner is seeking post-conviction habeas corpus relief from his indeterminate sentence of one (1) to fifteen (15) years for each of the two counts of unlawful and felonious delivery ofHydromorphone to a cooperating individual. These sentences were imposed to run . . conSecutively by the Honorable David Knight, Senior Status Judge. The sentences were enhanced pursuant to W.Va. Code § 60A-4-408~ so Judge Knight sentenced the PetitioneFto an indeterminate from four (4) to sixty (60) years of incarceration, i.e., two consecutive sentences· of 1.;15 years each, enhanced to 2-30 years each. / I Whereupon, the Court, having retired and 'considered the Petitions, the State's response, the Court files, the transcripts, the arguments of counsel, and the pertinent legal authorities; does hereby deny the Petitioner's Petition for Habeas Corpus relief. In support of the aforementioned denial, the Court makes the following General Findings of Fact and Conclusions of Law: I. FACTUALIPROCEDlJRAL mSTORY Case No. 07-F-62: The Indictment/Counts Specific to Each Offense A. The Indictment By a True Bill returned in the February 2007 Term by the Mercer County Grand Jury,the Petitioner, Andre Lamar King, was indicted on a four count Indictment for three offenses of Delivery of a Schedule II Controlled Substance, To-Wit: Hydrqmorphone, and one cOUl7,l'tof Conspiracy. Deborah Booker alleged that she had purchas:J:'~dJor received~ilf~gal prescription .. on September 15,2005. Linda· ' medication from the Petitioner on September Mooney alleged that she purchased and/or received illegal prescription medication drugs on October 10, 2005. B. Counts Specific to Each Offense Out of the four (4) count indictment, Counts 1,2, ana 3 were for Delivery of a Schedule IT Controlled Substance, and Count 4 was for Conspiracy. All counts in the indictment arise from events which allegedly occurred in September and October 2005. C. Pre-Trial Pro,ceedings On October 11, 2005, a criminal complaint was filed by Sgt. Charlie Smothers pursuant 2 I ¢ .' i ;;;. to W.Va. Code § 60A-4-40l(a)(I). Ajail commitment order was entered by Magistrate Rick· Fowler on October iI, 2005 until a $SO,OOObond was posted. The Petitioner was released on or about October 11, 2005. A preliminary hearirigwas set for October 17, 2005. The Petitioner failed to appear on October 17, 2005. T,hereafter, Magistrate Fowler issued a capias and recommended a surety bond for $50,000. On December 12, 2005, a Motion to Dismiss Bench.. Warrant was granted and the hearing was re-scheduled for February 22,2006. The Petitioner. also waived his time limit of20 days to hold rus preliminary hearing on December 12,2005. On February 22, 2006, the Petitioner waived his right to a preliminary examination. Upon the return of the above-referenced indictment, the Circuit Clerk of Mercer County . sent a written notice for the Petitioner to appear for arrailWment on February 26, 2007 at 9::30 a.m. The Petitioner appeared, and Jason Grubb, Esq., was appointed as his cOllI\sel. The matter ... 'Was set for trial on April 25, 2007, and the Petitioner was released on a Fifty Thousand DoHar bond. rJr. Grubb filed a nine (9) page Omnibus Discovery Motion on March 5, 2007. He ... thereafter filed ~ Motion to Suppress Evidence on March 9,2007 arguing that the audio and video recordings of the alleged transactions were obtained without prior authority. A suppression· hearing was set for April 20, 2007 and the Petitioner waived his right to appear at such hearing; (See, Pre-Trial Conference Order, April 13, 2007). A suppression hearing was scheduled on April 20, 2007, but Mr. Grubb moved to be relieved as counsel due to a conflict upon disclosure,· ofthe identity of the cooperating individual. The Court relieved Mr. Grubb and appointed· .. Michael Cooke, Esq., as counsel for the Petitioner and also permitted him to remain on bond. On Apri125,'2007, the Court granted the Petitioner's Motion to Continue and rescheduled th¢'trial: .. 3 ' for May 30, 2007 1 ¢ An Order for Issuance ofBench Warrant was issued by the Court when the .. Petitioner failed to appear at his trial D. at 9:30 a.m? Plea Agreement Negotiations Upon review of the record in its entirety, it appears that the Petitioner decided not to accept any plea offer made by the Prosecuting Attorney (See, Letter from Mr. Cooke to the Petitioner, dated October 30, 2007 in crimiruilcourt file.) The Pre-Trial Conference Order also ... noted that plea negotiations were ongoing.. E. The Trial: Verdict/Sentencing -Guilty; 4-60 years of Imprisonment The Petitioner's trial in the underlying criminal matter was held on May 30, 2007. The jury returned the following verdicts: "Guilty" of Count 1 of the Indictment; "Delivery of Schedule n Controlled Substances, To Wit: Hydromorphone.'" "Guilty" of Count 2 of the Indictment; "Delivery of Schedule II Controlled Substances, To Wit: Hydromorphone." ''Not Guilty" of Count 3 of the Indictment; "Delivery of Schedule II Controlled . Substances, To Wit: Hydromorphone." "Not Guilty" of Count 4 of the Indictment; "Conspiracy." Sentencing Pursuant to the penalties prescribed by the West Virginia Code for the above offerises~ on·· IThe trial was originally scheduled for April 25,2007. 2The Petitioner did appear for histrialbufwas late. (See, Trial Transcript, pp. 73-76'an~· . the Order for Issuance of Bench Warrant:) 4 ... ".:., ",:,.." ,":'; June 28, 2007, Judge Knight sentenced the Petiti()ner as follows: It is the ORDER and DECREE of this Court that the said Andre Lamar King be and~is , hereby adjudged guilty of the offense of"Delivery of Schedule IT Controlled Substance; , To-Wit: Hydromorphone," as the State in Counts 1 and 2 of the Indictment hereinhaili alleged and by ajury hath been found gUilty; that he be taken from the bar of this Courito the Southern Regional Jail and therein confined until such time as the warden of the, penitentiary can conveniently can send'a guard for him and that he be taken from?the Southern Regional Jail to the penitentiary of this State and therein confined for the indeterminate term of not less than one'OJ nor more than fifteen (15) years each as ' provided by law for each offenseof"Delivery of a Bchedule IT Controlled Substance;To.. Wit: Hydromorphone," as the State in' Counts 1 and 2 of its Indictment herein hath' ' alleged and by ajury hath been found gUilty; that these sentences run consecutively with ,,' one another; that the defendant be given credit for 33 days, this being the time he has ",', been confined on said charge; and he,bedea1twith in accordance with the rules and "," regulations ofthat institution and thejaws of the State of West Virginia. Upon motion of the State, and after que consideration of the evidence presented by the ¢ State, it is the further ORDER and'DEeREE ofthis Court that the defendant's penalty} be enhanced and that the sentences herein: imposed be doubled pursuant to W.Va. C9:<1e' , § 60A-4-40S. It is further ORDER and DECREE of Court that the defendant be aSsessedallcoljrt, ' costs which shall be paid within (1) year dfhis release from the penitentiary, or his driver's license will be subject to suspension. a this (See Disposition Order, June 28,2007.) The trial court placed its sentencing rationale 00: the record at the sentencing hearfug~' ,", follows: I've read the presentence report a number of times. I've read all the letters and ' everything that was submitted; including the one from Mr. King himself, a number of times. The trial itselfwas unique in some features. Like, I said, I spent 20 years as ,;" prosecutor. And it was the first time I've ever heard the defendant actuaHyconfess, on the witness stand. Maybe he confessed under the theory he had to transfer money to one another to have adeIivery. In West Virginia law doesn~t have ,. money involved in it. So as a result; we know that one. We know the videos that we watched. We'know how cautious he was. Andmdst of them, as a matter of fact, in theeh, one ofthe videos as I recall in this triarh~' searched the cr. 5 Now that's an indication of a man with some experience. He's checking to 'see who he's dealing with and whether or not they're wired at the time. Unfortutlately , for him, he wasn't up to tech ...up to snuff, I guess on modem technology. So as ,a result of, it didn't do much good. But, eh, with the evidence he submitted in the case and with the pasthistory that Mr. King has and I know weneed.~.In the Court (sic) system we judge people on , past history because it shows uirin writing what they've done in the past. ' He's a very personable youngman. I don't know him. But he's been very ," , personable during' all of this case. He has a pleasant personality. he did a great Job, .' of testitying on the witness stand; except for confessing. But at the same time I look back on it. And he's involved in at least one violent '" crime, for which he was sentenced up to 25 years at the penitentiary. A.ctually" served 15 years. Eb, trafficking (sic) in drugs which is what the records shows as part of the sentence that run concurrent with that. And not just abuse of drugs, I don't know' how many crimes we have ca11eclabuse ofdrugs. Though I'm sure we have' some things we do with pe6plethat abuse drugs. But... then the other part ont. The,eb, stuff that went on at the motel. And,eh;" while the police were searching, isn't that where Palmer showed up. ' Mr. Arnold: No, sir. Palmer carrie back to the residence. The Court: Ob, at the residence. Mr. Arnold: Yes, sir. The Court: Yeah. Was it the one on Vine Street? Mr. Arnold: No, this was on Hamson Street. The Court: The one that was on Hamson Street. Okay. And then had ,a thoJ.,lsand.' what, how many? Mr. Arnold: He has a hundred~ 100. The Court; One hundred pills and a lotof money on him. ,And umm...he was a known associate (sic) believe? : 6 Mr. Arnold: That's what the' State would contend, yes, sir. The Court: What ...what the State'believes. I just believe that Mr. King is part of the problem here. He doesn't live here, he' .', . comes out of Ohio. He comes doWn here, with, en, with...known as, eh, Columbus' B. I believe. Something ofthat nature. Umm ...just openly dealing. :' And ... and the evidence or part ofthe report there shows that he kind of moved' into this house. And, eh, just none of it makes sense, except if you lookatit from ' somebody thai seems to be, skilled at what they're doing. And so as a result of it, I don't believe that the Court can give much considel1ltion to him at all. And it is the judgment ofthe Court. he is guilty by the jury verdicts ' in this case, which was on Count' one and Count two of delivery of, eh, controlled substance. And I hereby, each one of them, sentence him in the WestVirgini'a' terms of one to fifteen years in the penitentiary on each charge. I direct that they be run consecutively. Umm ... I use 408 ... 60A4408 for an enhancement to double the penalties. And direct that that be applied to the sentence. Now, your just not a fit and proper subject under West Virginia law and under,:the': facts and circumstances, as we find you at this time for probation. So, it is my ," judgment that you go the penitentiary ,of the State of West Virginia to servethi,s sentences (sic). ~" Now you're getting older every day. Someday you gotta straighten outthetbiilgs you've been doing. I have sympathy for you. But not enough sympathy that I ' don't have for the community:'that we live in, either, and what you've done toit, " So, just have a seat over there and-they'll transport you in a few minutes. (See, Disposition Transcript, Jurie"28, 2007~ at pp.19-23.) F. Post Trial Matters On June 28, 2007, Petitioner's counse1filed a Motion for New Trial. The key elements: in " , the motion were the assertions that the evidence, proffered by the State was insufficient to sustain a proper conviction because it did not meet the reasonable doubt standard required forcriminaf, proceedings, and that the Southern West Virginia'Regional Drug and Violent Crime Task Force 7 ? "./:-~. failed to have a female officer conduct a search of the Confidential Informant before and after the Confidential Informant had unaccounted for-monies during the first videotaped drug transaction which occurred on September 13,2005. On June 28,2007, the trial court denied the Motion for New Trial. The Court fotindthat -' . the defendant received a fair trial and that the defendant admitted that he committed a crime:Oij. . ¢......., the witness stand. The Court further found thatthe Petitioner's arguments for a new trial were' based more on the weight of the evidence, rather than its admissibility. On November 13, 2007. the Court entered an Order denying the Petitioner's Moti()n for . ¢ : ...... Reconsideration of Sentence. On February 26,2008, the Petitionet'scounsel filed a Motion for Reconsideration of . Sentence. On March 18,2008, the Court deniedthe Petitioner's Motion, stating that the sentence , was justified by the records in this case. ti. AppeJ!1 to the West Virgini;t Supreme' Court of Appeals-Refused On November 15,2007, the Petitioner, by counsel, Michael P. Cooke, Esq., filed a Petition with the West Virginia Supreme Court ofAppeals praying for an appeal from the judgment and sentence rendered upon him on June28, i007, in the Circuit Court ofMercer County. The Petitioner's Petition for Appeal was based on the following grounds: 1. The Task Force failed to assure·to (sic) that the female C.L did not have contraband on her person because they failed to thoroughly search the female C.I.; therefore, the evidence obtained by the C.L in the alleged deliveries was tainted. ' The Petition was refused by ~e West Virginia Supreme Court of Appeals on February" 13,2008. 8 "" -'.,. " -'". n. THE PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS AD SUBJICIENDUM UNDER W~VA.' CODE § 53-4A-IIPETITIONER'S AMENDED PETITION FORWRl'rOFHABEAS CORPUSILOSH CHECKLISTIRESPONSE TO AMENDEllPETITION FOR WRIT OFHAB.EAS CORPUS ..... The Petitioner's Petition forWrit"of'iHabeas Corpus under W.Va. Code §53-4A...;tj. for Post ConvictionHabeas Corpus . On August 25,2009, the Petitioner fi1ed'his Petition for Writ of Habeas Corpus in the .' .Circuit Court of Mercer County, by ~d through his counsel, David D. Perry, Esq. The Petitioner .' raised the following grounds in his Petition: GROUND ONE VARIOUS INSTANCES OF PROS:eCUTORIAL MISCONDUCT BY ASSIST4NT' . PROSECUTING ATTORNEY' SCOTT ASH DEPRlVED MR. KING OFAFAIRTRIAV . AND HIS RIGHT TO DUE PROCESS'·CONTAINED IN THE 14TIl AMENDMENT'OF THE UNITED STATES CONSTITUTION AND ARTICLE ill, SECTION 10 OF THE . WEST VIRGINIA CONSTITUTION. GROUND TWO DETECTIVE CHARLIE SMOTHERSIMPROPERLYTESTIFIED REGAJ;U)INGOTHER . . CRIMES, WRONGS, OR ACTS PURSUANT TO RULE 404(b) OF THE WEST VIRGINIA RULES OF EVIDENCE WITHOUT MR. 'KING BEING PROVIDED'PRIOR' NOTICE FROM THE STATE AND WITHOUT A MCGINNIS HEARING,BErNd ' CONDUCTED. GROuND THREE THE REPRESENTATION OF MR. KING BY ATTORNEY JASONR. GRUBBDIJRJNG PRELIMINARY AND PRETRIAL· PROCEEDINGS CONSTITUTED INEFFECTWE' . ASSISTANCE OF COUNSEL. GROUND FOUR THE REPRESENTATION OF MR.KlNG BY ATTOIQffiY MICHAEL P. COOKE' DURING PRETRIAL PROCEEDINGS AND TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. GROUND FIVE THE STATE ELICITED. AND INTRODUCED PERJURED TESTIMONyi'FJ{OM< DEBORAH BOOKER REGARDING lfER EMPLOYMENT. Upon review of this Petition, the, Court requested Mr. Perry to file an AmendedPetitton' to reflect the new warden, Adrian Hoke, as the~Respondent. The Amended Petition On February 2, 2010, the Petitioner, by counsel, filed the Petitioner' s AmendedP~tit!bn" ", f6r Writ of Habeas Corpus. Counsel raisedtlie'same grounds as those raised in the original ' ' Petition for Writ ofHabeas Corpus Ad Subjiciendum. TheSeeoD.sl/,Amelided'Petition On May 18,2010, the Petitioner, by counsel, Natalie N. Hager, Esq., filed the Petitioner's Second Amended Petition for Writ ofHabeas Corpus, Ad Subjiciendum. Ms. Hagerwas substituted as counsel for the PetitionerdueioMr. Perry's retirement.3 Counsel raised the' fallowing grounds: GROl:JND ONE THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL A.T THE: PRELIMINARY AND PRETRIALPRclCEED1NGS AS WELL AS AT TRIAL.,' ,,' , A. Attorney Grubb's advice thatth~':Petitionerwaive his preliminary hearing' without first fully educating hiin:/dfits purpose constituted ineffective ' assistance ofcounsel. B. Attorney Grubb's failure to' conduct the Petitioner's preliminary hearing Withirr 30n March 4, 2010, the Court enteredariOtder permitting Mr. Perry to withdraw as ' , ' counsel for the Petitioner due to his pending'~tirement and set a status hearing for AprilS'".201p' ' to: appoint new counsel. The Court entered' mOrder on AprilS, 2010 appointing the Harvey:8.rid:' : " Janutolo Law Office. "10, ",JO :: .. " \ the required twenty (20) day period under Rule 5 of the West Virginia Rule of Criminal Procedure constituted ineffective assistance of counsel. ' c. The Representation of the Petitioner by Attorney Michael Cooke 'during pretrjal proceedings and trial constituted"ineffective assistance of counsel. 1. Attorney Cooke's failures to schedule and conduct a suppression hearing , constituted ineffective assistance of counsel. 2. Attorney Cooke's fai1ure·todemand and receive a fonnal State's Answer' . To the Petitioner's Omnibus 'Discovery Motion, conduct a discovery, ' ' conference, and relay the'results and nature thereof to the Petitioner constituted ineffective assistance of counsel. 3. Attorney Cooke's failure to advise the Petitioner of the existence and effects of West VirgiriiaCode § 60A·4·408 as it pertained to sentencing' , cOl).Stituted ineffective assistance of counsel. 4. Attorney Cooke's failure:to conduct an adequate and meariingful voh:dlXe. ' ofthe potential Jurors inthis matter constituted ineffective assistance"Df ' counseL 5. Attorney Cooke's failure to attempt to advance a theory of defense durjng" the Petitioner's openmg'statement constituted ineffective assistance of' ' counsel. 6. Attorney Cooke's failureto fully advise the Petitioner ofthe nature ofhis " ' right to testify in hlsown d,efense and the potential cons~quences ofhls"'" testimony constituted ineffective 'assistance of counsel. 7. Attotney Cooke's failureto Object to prosecutorial misconduct and oth,er> inadmissible evidence at trial constituted ineffective assistance of counseL GROUNDTWO THE PETITIONER W AS DENIED DtJE'PROCESS AND A FAIR TRIAL PURSUANT TO THE 14TH AMENDMENT oP"'TFiE'UNITED STATES CONSTITUTION AND:" ARTICLEllI SECTION 1OOF THE'wESTVIRGINIA STATE CONSmUTIONDUETO THE PROSECUTORIAL MISCONDUCT AT TRIAL. A. Assistant Prosecuting Attorney Scott Ash improperly interjected his personal opinion regarding thecredibilityofa State' switness, Sergeant Smothers, invioiation" of the Petitioner's constitutional right toa fair trial and due process. 11 II ...... B. Attorney Ash improperlyinterj,ectedhis personal opinion and argumentjntl1~', ' State's opening 'statement resulting in prejudice and in violation ofthe:,Petitlone:r;,'s" constitutional right to a fair trial and due process. GROUND THREE THE PETITIONER WAS DENIED I)lJE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ' ARTICLE III SECTION 10 OF THE WEST VIRGINIA STATE CONSTITOTIQNDUE ' TO THE JUDICIAL MISCONDUCT. GROUND FOUR THE PETITIONER wAs DENIED DUE PROCESS BY FAlLURE TO INDICT BEFORE THE SECOND TERM OF ,COURT PURSUANT TO W.VA. CODE § 62-2-12. GROUND FIVE THE PETITIONER'S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE; ", GROUND SIX SERGEANT CHARLIESMOTHER.S?INmROPERLYTESTIFIED REGARDINGOTHER. CRIMES, WRONGS OR ACTS PURSUANT TO RULE 404(b) OF THE WEST ' VIRGINIA RULES OF EVIDENCE:WHO'UT PROVIDING THE PETITIONER ; PROPER NOTICE FRQM THE STATE ANUWITHOUT A MCGINNIS HEARING BEING CONDUCTED. A. Detective Smothers' testimc)flyregarding the reasons the Petitionerwante&a "bltmf", and how he would use it constituted 404(b) evidence of other crimes, wrongs or " acts and was inadmissible. ' B. Sergeant Smothers' testimbnyregarding the Petitioner traveling to Columbus t<r ' ' obtain illegal drugs constituted;404(b) evidence ofother crimes, wrongs~ol' acts and was inadmissible. ' ' GROUND SEVEN THE EVIDENCE OBTAINED BYTHECONFIDENTIAL INFORMANT WAS ' , TAINTED BECAUSE THE SOUTHERN WEST VIRGINIA TASK FORCE FAILED TO:", 12 THOROUGHLY SEARCHTHE CONFIDENTIAL INFORMANT AND ENSURE'THAT SHE DID NOT HAVE CONTROLLED SUBSTANCES ON HER PERSON BEFORE " SHE ENTERED INTO THE ALLEGE;UDRUG TRANSACTION. GROUND EIGHT THE STATE ELICITED AND INTRODUCED PERJURED TESTIMONY FROlvf' DEBORAH BOOKER REGARDING' HER EMPLOYMENT AT PRINCETON COMMUNITY HOSPITAL AND OUTBACK STEAKHOUSE. GROUND NINE A SENTENCE OF FOUR TO SIXTY YEARS IN THE PENITENTIARY IS EXCESSIVE', , AND D1SPROPORTIONATETO THE CHARACTER AND DEGREE OF THE OFFENSE ' ' " PURSUANT TO THE EIGHT' ~ENDMENT OF THE UNITED . STATES' . CONSTI11JTION AND WEST VIRGINIA STATE CONSTITUTION ARTICLE. III, ' SECTION 5 . .At the habeas hearing, in addition to the above grounds, the Court detennined the particular grounds raised by the Petitioner according to his Losh checklist~ by going through each . ' and every entry on the checklist on the record. Each ground is further discussed in the appropriate section below. Reguested'Relief The Second Amended Petition requeststhat this Honorable Court granthis;Petition for:·' ," Writ ofHabeas Corpus and all the relief encom.passed therein. , .The LosliChecklist Waived Grounds: In his Losh Checklist, the Petitioner waived the following groUD.:ds.for . relief: Lack of trial court jurisdiction. Unconstitutionality of statute under which conviction obtained. " :: .: ' /3 .. " .' ..,:. '., ..... ~." Indictment showing on its face that no' offense was committed. Prejudicial pretrial publicity. Involuntary guilty plea. Mental Competency at time of crime. Mental Competency at time of triallplea;cognizable even if not .asserted at propertiJ'9.e~ ·or if resolution not adequate. Incapacity to stand trial/enter into plea due to drug use. Language barrier to understanding tlieproceedings. Denial of counsel. Unintelligent waiver of counsel. Failure ofcounsel to take an appeal. Consecutive sentence for same transaction. Coerced confessions. Suppression of helpful evidence by prosecutor. Unfulfilled plea bargains. Infonnation in pre-sentence rePort erroneo\JS. Ineffective assistance of counseL Double jeopardy. Irregularities in arrest. Excessiveness or denial of bail. megal detention prior to arraignment. Irregularities or errors in arraignment. 14 11 Challenges to the composition 0fgra:cidjury, orto its procedures. Defects in indictment. Improper venue. Refusal of continuance. Refusal to subpoena witnesses. Prejudicial joinder of defendants. Lack offull public hearing. Non-disclosure of Grand JurY minutes; Refusal to turn over witness notes after\vi~ess has testified. Claim ofincompetence at time ofoffense,'as opposed to time of trial. Constitutional errors in evidentiary rulings. Instructions to the jury. Acquittal of co-defendant on same charge;' Defendant's absence from part of the proceedings. Improper communications between prosecutor or witness and jury. Question ofactual guilt upon an acceptable guilty plea. Mistaken advice of counsel as to parole or-probation eligibility. Amount oftime served on sentence, to'be served, or for which credit applies. Asserted Grounds: the Petitioner asserted the foHowing Losh grounds: Denial of speedy trial. State's knowing use of perjured testimony. Ineffective assistance of counseL "' 15 t· No preliminary hearing. ,;:: Failure to provide copy of indictmenfto defendant Pre-trial delay. Claims concerning the use ofinfonnersto convict. Claims of prejudicial statementsbytrialjudge. Claims ofprejudicial statements by the prosecutor. Sufficiency of evidence. Severer sentence than expected. .. Excessive sentence. '" The Resp'o:li'dcnt's"Response . . The Response The Respondent, by and througb. the' Prosecuting Attorney, filed a response to the Second: Amended Petition for Writ of Habeas Corpus on/June 22,2010. As to the Petitioner's assertion that the Fetitioner' s conviction was tainted by linproper . conduct on the part of the prosecuting attomey,theState responded that Mr. Ash's comm.ents·do. l1Qt rise to the level of egregious conduct. The State further responds in that Mr. Ash could riot . remember Charlie Smothers' name during voir dire, although he had known Mr. Smothersfor: t . wenty years and made a reference to the iengtll::oftime as a self-deprecating joke. The Stat~i . further argues that this issue waS not raised directly on app~al and is therefore, waived in ~ .. subsequent habeas corpus review. Additionally;~the State cites State v. Sugg, 193 W.Va. 388;.:' . 456S.E.2d 469 (1995) as providing guidance for a claim ofprosecutorial misconduct. The State next answered the assertion concerning the ~etitioner' s denial ofeffective .. 16 -;- , It' -, , ,,' counsel. The State argues that the Petitioner~ scounsel acted reasonably and that the Petitiol).er's ' assertions have no merit. The State further argiles that th~ Petitioner's counsel testified attlre omnibus hearing stating that the Petitioner failedto provide him with any informationabo\lt " alleged witnesses, thus making it impossible for his counsel interview them. Finally,the:Btate. asserts trial counsel hired a private investigatortoassist with the Petitioner's case but thatthe·' lack ofcooperation from the Petitioner handicapped it in locating these people. Concerning the claim of bad acts pursuant to Rule 404(b) ofthe West Virginia Rules of Evidence, the State argues the testimony abouta~'blunt" cigar was unsolicited and an irrelevant, , diversion, and -that the hypothetical uses for a cigar had no material impact on the jury'sver(li,ct. Finally, as to the Petitioner's claim thatIleborah Booker's employment harlan effect on the jury's verdict, the State argues that her employment is irrelevant to the verdicts inttiis~ case;:' , The State further argues that the Petitioner clearly appears in the video recordings ofthe transactions for which he was convicted. m. DISCUSSION Habeas'Corp:usDetined Habeas Corpus is "a suit wherein probable cause therefore being shown, a writ is issued " which challenges the right of one to hold another in custody or restraint." Syl. Pt. 1, State ex reI: , Crupe v. Yardley, 213 W.Va. 335,582 SE2d·782 (2003).4 "The sole issue presented inahabe~ corpus proceeding by a prisoner is whether he is restrained ofhis liberty by the due process, of ' ~. :' -, 4 See also Syl. Pt. 4, Clickv. Click; 9S;'W:Va. 419, 127 SEid 194 (1925). 17 ,:l7,., law." Id. at Syi. Pt. 2. "A habeas corpus 'petitionis not a substitute for a writ of errors inthat ordinary trial error not involving constitutionaFviolations will not be reviewed:" ld. at Syl.Pt.3.·· The Availability ofHabeas. Corpus Relief In State ex rei. McCabe v. Seifert, thecWest Virginia Supreme Court of Appeals delineated the circumstances under which. a: post-conviction habeas corpus hearing is availaljl~, .' '. as follows: [1] Any person convicted of a crime and[2j incarcerated under sentence of imprisonment therefore who'contend's [3] that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution of the United States',ortheConstitution of this State, or both, or [4] that the court was without jurisdiction to impose the sentence, or [5Jthat the sentence exceeds the maximum authorized by law, or [6] that the conviction or sentence is otherwise subj~ctto collateral attack upon any ground of alleged error heretofore available under the cOmrnon~law or any statutory provision,of this State, may, without paying fi:ling'fee', file a petition for a writ ofhabeas corpus ad subjiciendum, ~dprosecUte:the same, seeking release from such illegal imprisonment, correction ofthese11tence, the setting aside of the plea, conviction and sentence, or relief[.] ", ' .. a 220W.Va. 79,640 S.E.2d 142 (2006); WNa.Code § 53-4A-i(a)(1967) Our post-conviction habeas corpUs statute; W.Va. Code §53-4A-l(a) et seq.., ~'(;dearly' contemplates that a person who 'has been convicted of a crime is ordinarily entitled;' as a matt~J.'of " right, to only one post-conviction haheascorpus'proceedingduring which he, must raise all" ' . .grounds for relief which are' known to him or which he could, with reasonable dilIgence" , discover." SyI. Pt. 1, Gibson v. Dale, 173 W.Va: 681, 319 S.E.2d 806 (1984).6 S A writ of error is a writ issued by an~ppeUate court to the court of record whereac~e'.. is' ~ed, requiri~g ~t the record ofthe trial' be:~ent to the appellate court for examinationalleg ¬xi~ '. Wnt oferror. DIctIOnary. com. RandorrtHouse; .... www.htt.p:lldictionary.reference.com!browse/wrifoferror. '. 6See also Losh v. McKenzie, 166 Vi.Va.'762, 277 S.E.2d 606 (1981). . :. ': .~ .'/J "'". ""." r" : .,". ",.' .. ..;. "A prior omnibus habeas .corpus hearing:is res judicata as to all matters raised and~ag:to all matters known or which with reasonabledili:gence could have been known; however,ari, '. applicant may still petition the court on the following grounds: (1) ineffective assistance of counsel at the omnibus habeas corpus hearing;; (2) newly discQvered evidence; (3) or, a change in the law, favorable to the applicant,"which may-be applied retroactively." Syl. Pt. 4, L.oshv. '... McKenzie, 166 W.Va. 762,277 S.E.2d 606 (1981). :,., A habeas corpus proceeding is civiUn nature. "The general standard of proof inciVi.f . cases is preponderance of the evidence." SharonB. W. V. George B. w., 203 WYa. 300; 303, 507 8.E.2d 401,404 (1998). In Gibson v. Dale, 173 W.Va. 681~ . .. 319i S:E.2d 806 (1984), the West VirginiaS'upr~me' Court ofAppeals held that: (a) habeas corpus petitioner is entitled to careful consideration oflus .. grounds for relief, andtl1e:qoilrfbefore which the writ is made returnable~ has a duty to providewha:rever facilities and procedures are necessary' to afford the Petitionenmadequate opportunity to demonstrate his. entitlement to relief. 'SyL:Pt. 5. "Whether denying or granting a petitiorifor relief for writ ofhabeas corpus, the cfrc.u,it . ¢ ¢.. court must make adequate findings offact and conclusions oflaw relating to'each contentioil',' advanced by the petitioner, and to state the grou:rlds:upon which the matter was determined;" Coleman v. Painter, 215 W.Va. 592,600 S.E.2dd04" (2004). FINAL LIST OF GROUNDS ASSERTEIl'FORISSUANCE OF A WRIT OF: , HABEAS CORPUS, ANDTHFieollRT'S R~INGS THEREON ' The Court has carefully reviewed alltheipleadings filed in this action, the transcriptdi~ .the omnibus hearing, the Court file in the underlyihg criminal action, and substantial portions of .' 19 ',,,,, , ., ...: the transcript of the pre-trial hearings and the .trial, and the applicable ca~e law. This Court must further determine whether the trial court made any other error in:its.. '. rulings that unfairly prejudiced the Petitioner. Accordingly, this Court now answers'the;following questions: Claim A: The Petitioner was.deilieueffective assistance of couns~l'at~tlie ¢ preliminary andpretnal'proceedmgs as well as at trial. . The Petitioner's Argument: The Petitioner argues that the Petitioner' s counsel was ineffective based'pn'¥t; . . Grubb's waiver of a preliminary hearing, M;t;'Grubb's faiiure to conduct a preliminary·liemirigi .' . within the required twenty (20) day period under Rule 5 ofthe West VirginiaRulesofCritni~aF> , Procedure, Mr. Cooke's failure to sched\lleandconduct a suppression hearing, Mr~ Cooke's .' .'. '. failt1fe to demand and receive a formal State's answer to the Petitioner's Omnibus Discovery . Motion, conduct a discovery conference andrelayithe nat·ure of the results thereofto the . Petitioner, Mr. Cooke's failure to advise the:P.etilionet ofthe existence and effects ofWest , Virginia Code § 60A-4-408 as it pertained to sentencing, Mr. Cooke's failure to conduct an ' ·iid¢ql,late and meaningful voir dire of the potential:jurors, Mr. Cooke's failure to advance a theory of defense during opening statements~1\i:t1;>Cooke's failure to fully advise'oftheIia~Of . his right to testify and the potential consequences-.of such testimony, and Mr. Cooke' s)firihireiio '. .object to prosecutorial misconduct and otherirl~~ssible evidence at trial. The Respondent's Answer. 8ee;SectionU, above. Claim A: Findings ofFact and'Cf)n~ltxsionsof Law. The CourtmakesthefoHdWirig: . specific findings of fact and conclusions ofl~wregarding Claim A: 20 (1) The West Virginia Supreme Court of Appeals stated the test to be applied in determining whether counsel was effective in State v. Miller: In the West Virginia courts~ claims of ineffective assistance of counsel are to be governed by the two;;pronged test established in Stricklandv. . Washington, 466 U.S. 668, 104:S.Ct. 2052,80 L.Ed.2d 674 (1984): (a) Counsel's performance was deficient under an objective standard of . reasonableness; and (2}ther,e is reasonable probability'that, but for '. counsel's unprofessional e:rrors~ the result of the proceedings would have . been different. Statev.Miller, 194 W.Va. 3, 459 S.E.2d 114'(1995), syI: pt. 5. (b) The West VirginiaSupremeCourt of Appeals has also stated that: .. " .. Where counsel's performance, attacked as ineffective arises from '. occurrenceinvdlvingsmttegy, tactics, and arguable courses of action,'his .. conduct will be deemed'effectively assistive of his client's interests;ut1le$s, no reasonably qualifiecfdefense attorney would have so acted in the defense of the accused. State ex reI Humphries v. McBride, 220 W.Va. 362,645 S.E.2d 798 (2007) syl. pt. 5. In accord, Syllabus point 21, State v. Thomas, 157 W.Va; 640, 203 S.E.2d 445 (1974). (c) Further, the WestVitgima Supreme Court of Appeals haShetdthat:.·. [i]n reviewing counsePfrperformance, courts must apply an objective '.. standard and determine wb:ether, in light of all the circumstances, the.' identified acts or omissions were outside the broad range ofprofessionalJy " competent assistaitce·while at the same time refraining fromengagingin.' . hindsight or second;.guessiIlg oftrial counseP s strategic deciSions. Thus; . . a reviewing court ask whetber·a reasonable lawyer would have acted, .... . under the circumstanCes~ $ defense counsel acted in the case' at issue. State v. Millet, 194 W:Va. 3, 459 S.E.2d 114 (1995) syi. pi: 6. . (2) The West Virginia Supreme Court ofAppeals has consistently recognized thata, ¢.... preliminary hearing is not a cQnstitution8:11ymandated proceeding. That was'recogIDzed" in Syi. Pt. 1, Lycans v. Bordenkircher, 159 W.Va. 137,222 S.E.2d 14 (1975}(ovelT:uJer;/.· 21 on other grounds by Thomas v. Leverette;' 166 W.Va. 185,273 S.E.2d 364 (l980));Tbe . United States Supreme Court heldin. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct., 1999; 2P. L.Ed 2d 387 n970), that a preliminary hearing is not a constitutionally mandated proceeding. See also, GUthrie v. Bo!es,261 F.Supp. 852 (N.D. W.Va. 1967), Gibsorlv. Mckenzie, 163 W.Va. 615, 259 S.E.2d,616~(1979), State ex rei. Rowe~. Ferguson,;165: W.Va. 183,268 S.E.2d 45 (1980); Desperv. State, 173 W.Va. 494,.318 S.E.2d437 (1984), Peyatt v. Kopp, 189 W.Va. 114,428 S.E.2d 535 (1993) and Rule 5.1 ofthe;WestT' Virginia Ru1es of Criminal Procedure. Moreover, a preliminary hearing may:bewruved.,,; . under sy1. pt. 3 of Lycans. (3} The Court finds that the Petitioner is not constitutionally mandated to receive a preliminary hearing. The Court further finds that the Petitioner waived hispreliminary; '., . hearing. Therefore, the Court findsand'concludesthat this claim is withoutmerit. (4) The Court finds that under syl. pt 2; State v. Harr, 156 W.Va 492, 194 S.E.2d652 ¢.... (1976) a suppression hearing entails the following: "A hearing on the admissibility of evidence allegecJ1y obtained'byan' . unlawful searchc6ntempl~tes a meaningful hearing, at which both:th~,," state and the defendarifsh6Uldbe afforded the opportunity to produce; .... evidence and to examine:;md cross-examine witnesses." (5) The Court finds that the Petitioner's;coUl)sel reviewed the audio/video recordlng,Qf the Petitioner and determined that a suppression hearing was not necessary because it;was: . . . ;' properly obtained according the following testimony of Mr. Cooke: Q: And did you obtain.aiiaudio/video recording? A: Yes. ;" 22 " ',:;::: ,'" Q: Did you move to-suppress any of this eVidence?, A: No, based on: my analysis ofthe evidence, it was properly obtain~d; Q: Okay. What-do you remember watching some of the videos? A: Somewhat, yes. Q: Would it be a accriratestatement if I said Mr. King was nof identi&e~r in two of the video tapes? thaeThe::" A: The first one involvirigMs.-Ms. Booker, I would agree with third video whichwruHJ1echarges I believe Mr. King was acquitted'on, that was a very fuzzy vague video, and 1 don't think you could se¢'hi:n:tJon. that one either. Q: But you didn'tnioveto suppress those videos? A: No. They were-theywere based upon my-my opinion and analysis of' case law and the propel1 niles, they WeJ1e collected-thatevidenc.ewas ;. . collected properly. Q: Pid you analyze wheth,erit was reliable evidence? A: It appeared to be an aCcUrate depiction of what occurred. Q: Did you analyze whether the-wheJ1e (inaudible), would.that be-more" . . . prejudicial or probative? A: Well, it seemed to ,me it would be a benefit to him that their-tfiafthe··. . State was presenting,you'-know, 'we,'re charging Mr. King withthis drug transaction andhere's'ourevidence, but he's not on the tape. So'itseemed~ to me it would be beneficiaL ' (See, Omnibus Habeas Corpus: Hearing Transcript, pp. 36-38). (6) The Court finds that the Petitioner~s;cQunsel's trial strategy to not snppress.videOS'thaf weJ1e arguably vague does not rise to the level of ineffective assistance ofcounseL. (7) The Court finds that a discovetycoruetence was not requested or held inthe Petitioner's criminal case. See, WestVfrginia Trial Court Rule 32.03, WesrVirginia> ' 23 '. . . . pG"J' J.J ' ..... :. > ¢ ¢ ¢ ¢ ¢ ¢ . Ru.les of Criminal Procedure Rule 16. (8) The Court fmds that the Petitioner' sCOlUlsel did not request the trial court t6 make,.~ .' , ruling on 1;he Petitioner's Omnibus Discovery motions. (9) The Court finds that thePetitioner:s silence at the trial level constitutes a waiver'of his objections. See, State v. Moran,)6'&'W.Va. 688,285 S.E.2d 450 (1981), State v.' McKinney, 178 W.Va. 200, 358 S:E:2d596 (1987). (10) The Court fmds that the standard for determining prejudice in discoverymatters-;····.·. c' .. involves a two-pronged analysis: "~elY didthe non-disclosure surprise the defendanfon;a:- material fact, and (2) did it hamper the preparation and presentation oithe defenda.nt1~· . case." See, State ex rei. Rusen v. Hill; 193·W.Va. 133,454 S.E.2d 427 (1994)citingState' v. Miller, 178 W.Va. 618, 624, 363 S£.2d 504, 510 (1987). .' , (11) The Court finds that the Petitionef'was not surprised of a material fact. (12) The Court fmds that the Petitioner-was'not hampered in his preparation and presentation of his case. (13) The Court FINDS andCONct~ESthat the.Petitioner was notprejudiced'bY;t.h~'~ failure to disclose any exculpatory evidence or discovery which would haveassisrei;fhis'.· case. (14) The Court FINDS andCONCLmES'that it has not been presented with anyfact" or issue which could have been leamed iri'discovery that was prejudicial to the Petiiioner~ . . (15) The Court FINDS and CONCliuDESthat the Petitioner has failed toprove:by: . ' .' a preponderance of the evidence·that he has: met either prong under Rusenv. Hill . .. (16) The Court FINDS andCONCEUDESthatthe Petitioner's counsel did'notfailt&; 24 '; .:'.... .. ;.:~ . . ;'-~ '. discover any material facts which hampered the preparation and presentation ofhiscase~ ,' (17) The Court FINDS and CONC:tiOOES that the discovery issue'doesnotriset~f-thej level of ineffective assistance of counseL (18) The Court fmds that voir dire was defined in West Virginia Human Rights. " Commission v. Tenpin Lounge, Inc:, 15H';W.Va. 349, 211 S.E.2d 349 (1975): Voir Dire examination is ctesigne(i'to allow litigants to be informed'ofall relevant and material matters that. might bear on possible disqualificati.on· '.. of a juror and is essentiaho afiiir and intelligent exercise of the rightt.o cha:llenge either for cause or peremptorily. Such examination must be ' meaningful 50' that the parties: n,iaybe enabled to select a jury competenttO" ", ,. ' judge and determine the facts ill issuewith.out bias, prejudice orparti81ity:< ' As said in State v. Stonestreet; 112 W.Va. 688. 166 S.B. 378 (1932), qU.oiipgd fr.om State v, Lohm. 97 W:V~~:652:; 125 S.E. 758 (1924), '''Another requisite: ' .of a fair trialis a fair jury." . . . " '. ". ': " T" ,', (19) The Court finds that the voirdire:v.iasvery short and d.oes not appear to have generated much informationwhichconld have assisted the Petitioner-in selecting a", ~ !.' ;" Jury. (20) The Court finds thatthe Petitioner was indicted on three separate countsofDeliy~~ , of a Schedule II Controlled Substance; To';:Wit: Hydromorphone and one count.of Conspiracy to Deliver a Schedule II,contrdUedSubstance, To-Wit: Hydromorphone. (21) The Court finds that not Withstanding;<the inadequacy of the voir dire,the jury " reached a fair verdict based Ott the evidence-available to it. (22) The Court FINDS and CONCLuDES that any inadequacy ofvoirdire4Qes;~9{n:;e; to the level of ineffective assistance ofcounsel. (23) 1The Court:finds that TriaICourflt'uleA2.04 (a) states the folloWingconceming:, opening statements: 25 :;..; ...' : , At the commencement of the trial ina criminal action, the State and the defendant' may make non-argumentative'opening statements as to their theories ofthe case ' and the manner in which they-expect to offer their evidence. If the trialisto!ajury, unless the court directs otherWise the opening statements shall be made immediately after the jury is:jlnpaneled. If the trial is to the court, the o~niri}?t" statements shall be made immediately after the case is called for trial. The court, on request by the defendant; may defer the opening statement for a defendant:.un1il the time for commencing preseIJ.tation of that defendant's direct evidence~ ,',' , ' Opening statements shall besubjectto time limitations imposed by the court.'· If' , the action involves more than one defendant, the court after conferring with the, ' parties to the action, shall detenninethe order and time of the opening stateni~nts;,' ' (24) The Court fmds that Judge Knight instructed the jury as to the purpose ofopenlnK statements as follows: Counsel will presently make their opening statements in which they will tell tloS. ," what they believe the evidehce~will show. The opening statements,are neither" " arguments nor evidence andsnoUldnotbe considered as such. Youshotildgiye ... you should give the lawyers for each side your indiv...indiv... your undivided' " attention because what they have to say will simplify your task ofreiatingtlle; "," testimony of each individual witness to the total of all the evidence offeredduting, the trial. (See, Trial Transcript, pp. 27'-28). (25) The Court FINDS and CONCI.;lJJJES that the opening statement serves as a guide ' for the jury of what a party intends to, prove through their evidence but that it is not evidence in itself. (26) The Court FINDS and CONCLUDES that although the Petitioner's counsetdid ' not conduct a lengthy opening statement, failure to make an adequate opening is not a ' basis for habeas corpus reHef. . " . ' (27) The Court FINDS and CONCEtJDES that any inadequacy of the opening statemen~" does not rise to the level ofineffective:assistance of counsel. (28) The Court finds that a criminal defend~t must be made aware ,of his rightto'testjfy~ 26 , <',' or remain silent as set forth in State v; Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988): (1) A trial court exercising apprQpriate judicial concern for the constitutio;naf .. right to testify should seekto'aSsurethat a defendant's waiver is voluntary~ knowing, and intelligent by advising the defendant outside the presence of 'the jury that he has a righttotestify, that iihe wants to testify then no one can. . prevent him from doing'so, thatifhe testifies the prosecution willbeallowed,~;' .' . to cross-examine him. In connection V1ith the privilege against self.,incrimmatiQp;;,' .' . the defendant should also be adVised that he has a right not to testifyandthatif ., he does not testify then theJtiry can be instructed about that right. syI. .pt. 7.,' (29) The Court finds that duringthetrlal,the trial Court held a bench cQnferencewith;th.e . Petitioner and counsel informing him of his right to testify and his right notto'testify: according to the fo11owing testimony: MR. COOKE: 1'd like to call Mr. King. THE COURT: Okay. Come up to the Bench first. MR. ASH: Certainly sir. THE COURT: Coine upt(ythe bench first. BENCH CONFERENCE: J THE COURT: Mr. King; you don't have to te~~ify unless youwantto.~:: . .~' THE DEFENDANT: I wanHo. I want my part to be... .! want my story:io be h e a r d . ' . THE COURT: rm going'toexplainsome ofyour rights, ifthat'~okay: THE DEFENDANT: Okay. THE COURT: You don't have to testify? THE DEFENDANT: Okay . . THE COURT: Ifyou do testify, you'll be treated likeanyotherwitriess;{ . . 27 . "' . . . ~'" ':. . THE DEFENDANT: All right. THE COURT: Youwon~tbetreated different because you're-on/trial;)' THE DEFENDANT: Right. I understand. THE COURT: You've discussed this with your lawyer? THE DEFENDANT; Yes. THE COURT: Andthat's-want (sic) you want to do. THE DEFENDANT: Y¢s. THE COURT: Okay. (See, Trial Transcript;pp;;113-1 ~4). .~ (30) The Court finds that Michael Cooke testified atthe Petitioner's Omnibus Haoeas" .' . . Corpus hearing regarding the Petitioner'sdesire'tQ testify during the trial as follows: Q: (by Joe Harvey, Esq.YWhat--how did you handle Mr. King to try:to}'" . testify? A: I.....w ell, generally, lwiltd;iscuss- I will tell folks that theyhsNe the ~.,'.'" . option to testi:£y if they so choose. They also have the optionorrightto·;.··. remain to silent. . With Mr. King, it wasriJt a:...I didn't need to have that discussionwith;:lijm..·' . . ," Mr. -Mr. King was probably one ofthe mo~ adamant individuals.aBo:ut.' .' testifying andtellingtheir'Side ofthe case to the jury that-that I'veev~r'~··. experienced. He-he absqtltely wanted his day in court. Hewantedhf~'day" in court. He ,¥;aritedtotestify. He actually, I would describe himas'.Willg eager to testify. We-we did have a plea.d;ffer:OIi the table, which I mentioned to hitri;.,aJ::(4\ he-he had no inteiesL·H6-hewanted, he wanted-he wanted"hisdayiJj~: court, he wanted to testifY; he wanted to tell the Jury his side.ofwhl:l.t...... . happened. . . . Q: So you didn't even exPlain to him he didn~t .have to? 28 .; ;: A: Yes, I told him thathedidn'thave to, but he was adamant about" :, " testifying. Q: Okay. Did you describe to him the consequences ofifhe chose to; " testify? " " A: I told him thathe would be, you know, that "he would be crQss..:.cro~s:-" examined and that, you'consideration by the jury or it could be disregarded. , " Q: How did you prepare him to testify? A: We had a -1 don~t know if-before the trial, we had a rather lengthy"" ,', " telephone conversation:; ItmaY have been more than one, but I do' remember ratherlengt11yphone conversation about testifying and wbaih~; ',', was going to say and'this:and that. Q: Do you recall acmally" rehearsing his testimony or anything'liketli~tT A: Specifically, I don't remember that, no. (See, Omnibus Hearing Transcript,pp. 47-48). (31) The Court finds that the Petitionet!wanted to testify during the trial and wasaw~;;Qfi the Neuman rights presented to hini by:tbe Court. (32) The Court FINDS andCONCElIJ)ESthatthere is no ground for habeas:corplls~' relief available to the Petitioner oIl'the issUe ofhls decision to testify. (33) The Court FINDS andCONCLWESthat the other issues raised by counselasiO: ' ineffective assistance of counsel areaddl:essed hereinafter. " (34) The Court FINDS . andCONCL'ltDiS'th~Jthe Petitioner has failed'todemonst).!ate:;," -- that it was reasonably probable thaftIle'restutsofthe proceeding would have been ,', " different, but for counsel' s performance~ . . . ."', '. . (35) The Court ..,NDS and'CONCLuDESthatthePetitioner's claimsofineffecxive: :. , ' 29,' , ",' " " /' assistance of counsel made in Clab.n:ptarewithout merit. 'Claim B: The Petitioner was deniedd~e!;process and a fair trial pursu~i,lti~tb:e~'4,ffi< Amendment of the Unite(f'~#f~~' Constitution and ArtiCle m' s'ectf6If·'19':~f'" the West Virgiliia StateConstifti:tion due to the proseeutorial"Dlue,QJ:fdu¢f; ~~~ . ' . -',Th.e Petitioner's Argument: The Petitioner's argues that the AssIstantProsecuting Atto~ey improperly interje9ted:lri~+~, ". personal opinion regarding the credibility ofa:State's witness, Sergeant Smothers;because~b:¢j" (. referred to knowing the witness for twe~tyyears'andthathe didn't look like a policeofflcet. The Petitioner further argues that Mi.,; Ash's statements ofhis personal relationship'Wltlf . Sgt. C.J. Smothers bolstered his credibilityarid'thatthese statements are highly impr()per?l+il4~ . State v. Sugg, 193 W.Va. 388,456 S.E.2d 4ti91(1995). The Respondent's Response. See, Section nfabove. ClaimB: Findings of Fact and Concbisionsof.Law. The court makes thefoHbwingspe9i:fic·;." fmdiligs of fact and conclusions oflaw regarding claim B: (1) The Court finds thatthePetltioher's argument is basically that the prosecutbr .. made improper statements· dUring his examination of SergeanfSmothers:rega.i4jijg'·· . . .~' ' "". the length of time that he had known the'witness. (2) The Court fmds that the'Petitlorietfurther argues that the prosecutormacie~ . . . . improper statements duririghis"q-peningstatement. .- !' (3) The Court finds that during.tlii~ opening statement, the Petitioner mainwn~~: that the State improperly conv.~yed:to the jury that thePetitio'ner was a notori~~~: > . drug dealer as opposed to'the>State:saying what theevidencewo-QId show.' " -,~' (4) The Court finds that the Petitioner further maintains that the improper'" ...... , characterization ofthe Petitioner being a drug dealer immediately prejudiced the . jury and denied him a fair trial. (5) The Court FINDS and CONCLUDES that the West Virginia Suprem~ C6¢i has held that a conviction"wilr not be reversed because of improper remarks: . made by a prosecuting attomeyilfhis opening statement to ajury which"do,nof' clearly manifest justice." The'Court has long held that "(f]ailure to make'tirllely and proper objection 'to remarks-of counsel made in the presence ofthe jury, .. during the trial ofthe case,coristitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court." State v. Davis; 205 W.Va. 569,519 S.E.2d 582 (1999). (6) During his openingstatemel1t;the prosecutor stated that following;· ~'He"was' .. ¢.. dealing Hydromorphonewhichis'a1so known as Dilaudid or 'K~41 ..." He further stated: "No one' will confuse this with a Star Wars productionbuty(;)U··.. will be able to clearly see that on;September 13 th the defendant, Andre King,:CtUUe to a vehicle driven by Ms. Bdoker;transacted business in her vehicle..." . ' "You can see Mr. King very cle~ly on the video. And you can tell thatthe temperature is turned up insofar ashe actually attempts to search herfora'Wiieat: . that 'tim~..." "In October he was selling drugs out ofthe house on Harrison Streetright hetyin ' the city ofPrihceton..." See TriarTranscript, pp. 29-31. (7) Defense counsel did not objectto the above statements during opening: . ".31 .... '","' ," statements. The Court further' finds that the jury was instructed by the C()1.litfuaf ' "opening statements are neither arguments nor evidence and should not be' " considered as such," See TrialTtanscript p. 28. This instruction wasgiven'prh>i, . to the opening statements. (8) Based on review oftheopetiing statement, the FINDS and CONC:tuDES' that the Prosecutor did not make; aliy improper statementsconceming the . '. ,., Petitioner which would have prejudiced him from the beginning oithe triat' .... '.' . (9) The Court FINDS and';CONCLUDESthat the 'Petitioner's claim·of . prosecutorial misconductm.ade>in'ClaimB is without merit. Claim C: The Petitioner was denietldu¢-process'pursnant the 14th Amendttie~t'oft4e' United States Constitutionattd'ArticleU Section 10 oftheWestVirginijl2. ,. ,". State Constitution dtIetO'th,f(sie)Judicialmiscondnct. 'TltePetitioner's ArgUment: The Petitioner argues thatthe HonorableJudge Knight was prejudiced againstthe. Petitioner because he was from Columbus and not the Princeton area. The Petitioner cites· the following statements by Judge Knightduririg-sentencing to support his argument: THECOURT~ WhaLwhat the State believes. I just believe that Mr;, King is part ofthe problem down here~ He,doesn~i live here, he comes outo-fObio. He comes down here, with,:eh~ . with...known as, eh, ColUmbus B. I believe. SomethingofthafIifltl)re.' Umm...just openly dealing. . And...and the evidence or:part of the report there shows thatheiki,:u:l"of::> , '" moved intotms house., And~eh, Just none of makes sense, except,tfyo'll'" ..... look at it fro~somebody,thatseems; to be, skilled at whattheyatf'i:eIqing:;";' And so as a result ofit, Idon'tbelieve that the Court can, give'much ...... . consideration to' him .a1t"And itis the judgment ofthis Court, he is. . at 32. guilty by jury verdictsinthis case, which was on Count One arid.CoUnt.-. Two of delivery of> eh;.eOntrolledsubstance. And I hereby, eachon~of .. them, sentence him.inthe West Virginia terms of one -to fifteenyear~: itl'" the penitentiary on each; charge. .. I direct that they be:run consecutively. Umm..1 also use 4aO...60A.;4:40g> for an enhancemenfta, double the penalties. And I direct thathea.ppli&htq-.' the sentence. ,,:"" , . (See, Disposition Tran:script, pp. 22-23). ,~'. The'Respondent's Response. The Respondent did not directly respond to this claim. : ;Claim C: Findings of Fact and Conclusions<of'·Law. The Court makes the followingspecinc. fmdings offact and conclusions of law regarding'claim C: .',..:..-' (l) The Court finds thatthe ~bove-referenced comments from the~CQurt·· were made during the sentencing hearing and not during thematbe-fore:'> . the jury. (2) The Court ftnrlsthatcnowitnesstestified duringtheOrnnibusHeming '. held on August 2, 2010,:to'support the claim ofjudicial misconduct. (3) The CourtF:J:N'DSand';CONCLUDES that the real test for a prejudicial statementis:itsie.tIect on thejury. See, Adams v.Clin(! Ice'; Cream Co., 101W:Va.35;J31 S.E.2d 867 (1926). (4) The Court FINDSailijii;CONCLUDES that the PetitionerhasJai;l~d< . to prove his cl$n ofju.diciat: mise.onduet by Judge Knight duringthe:~trli:i.l ." by a preponderance oftlit:~;.evidence, as there were no witnesses;'evidel:1e,e~; or testimony in supporfthereof at the habeas hearing. (5) The Court findsthatth~e{actors are totally permissible. to~eused'hy: .... . ,::> , 33 ... " . . . ;; Judge Knight in sentencing'the Petitioner. See, State v. Grimes, 226, W.Va. 411, 701 S.E.2d449'(2009), Statev. Goodnight, 169 WNa.2~7; (1982), State v. Rogers~ 167 W.Va; 358,280 S.E.2d 82 (1981). (6) The Court FINDS:~D:a"CONCLUDES that the Petitioner' SQlffim of; , judicial misconduct made in Claim C is without merit., ClaimD: The Petitioner was denied'dueprocess'by failure to indict before the; sec~lidC' term of court pursuantito'W;VA. (siclGode § 62-2-12~ ," ' , The Petitioner's Argument: The Petitioner argues that the Petitioner'was arrested on October 11,2005 but'wasrl.ot " 'indicted by the Grand Jury until February 14;:2Q07. Petitioner further argues thatpursuan.t't(), ',W.Va. Code § 62-2-12~ he should have heenindicted by the end ofthe February 2006terrn~The ",;", , , " Petitioner states that he remained in the State's custody through four tenns of court, beginmngm" OctOber 2005 through October 2006. The Petitioner argues that he should have beenrel~~d;; " before the end of the second tenn of c,ourt for failme to indict Tbe:Respondent's Response. The ResPQridentdid not directly respond to this claim: 'Claim D: Findings of Fact and ConclusfoRsc'of'Eaw. The Court makesthefoUowillgspe~~fi~, fuidings of fact and conCflusions of law regarding claim D: (1) The Court finds thatW. Va."Code §'(j2-2-12, states thefollowmg: ' A person injail, on a:cr.hninal Charge, shall be discharged from', imprisonment ifhebe'notindicted before the end ofthe second ' tenn of court, at which he is: held to answer, unless it appear to the court that materil:il\vitn.esses for he State have been enticed, or kept away, or are preve~tedfrom attendance by sickness QI inevitable accident;andexcepfalsothat, when a person injail,' on a charge of'having'cQfnInitted an indictable offense~ is not indicted by reasonofinsatllo/ at the time of committin,gthe act, " the grand jury shall:certffYthatJact to the court; whereupon the court may order himtQ'besent to a state hospital for. the insane, or to be discharged. . . (2) The Court finds that thePetitipnerwas arrested on October 10, 2005.~ (See,; . . Criminal Court File, Criminal<(X)P1plrutihiated 10-11-05, filed3-15-06)~·.·· :'. " (3) The Court finds that the Petitioner was arraigned on October Criminal Court File, dated 1.O~1'1-05, n, 2005.(Se~, filed 3-15-06). ..... . ': (4) The Court finds thatthePet1ti6ilerwas commi~d to jail on Octoberll~i005;" (See, Criminal Court File, Jaili:.com:IDitment Order dated 10-11-05, filed· 3~15~:O_6)~.:·' (5) The Court finds that aboJjdo£$50,OOOwas posted byprofessi6naFbon.dsr#an,~,:; -' ;', Ratcliffe Bonding on October'J:l~.2005andthe Petitioner-wasreleased'o~'OBtBJ:ier>' 11,2005. (See, Criminal!Ceuft File; Crlniinal Bail Agreement, dated 10..1 h05~-:> " .' filed 3-15 ..06). (6) The Court fmds thattliePet$tiQnerwasnotimprisoned for longer thantwo " terms. (7) The Court finds' that even ifthis: statute applied the r~lief granted fef:vie.JiI,don of the two term rule is release':&0ri1'commitment to jail'and not a barr to'· prosecutien ofthe underIyirig.offeIise. ' " (8) The Court FINDSandiCoNetvDESthat the State has not'violated'W~Va;; Code § 62-2-12. '" ... , ' , to indict before the second-terI11' 0f court made in Claim D iswithoufmerit . , The Petitioner's conviction~~~;b'jsed on-insufficien1- evid~nce~ , "" 3$, . The Petitioner's Argument: The Petitioner argues that the video'did not capture. the alleged September 15, 2005 <iI1lg'. . . '. transaction and that the Prosecutor kept repeafmgthat the video recordings from the wirewQm'" .. by the confidential informant were not "Nol1ywoodquality." The Petitioner furtherargu~s~tfu,tf D,etective Smothers conceded that the camera failed to show that a drug transaction had transpired. The Petitioner furth~r arguesthat'due'to the lack of clarity ofthe video andti1~ Smothers' testimony that reasonable doubt.existsregarrung the Petitioner's guilt. . , :Fhe Respondent's Response. The Respolluerltdid not directly respond to this claim, . Cbiim E: Findings ofFacf andConcItisrons;of;I;aw. The Court makes the following spegifi.c' findings offact and conclusions of law regarding claim E: (1) The Court finds that it isthe;f4nctionofthe jury to weigh the .testin;lony' . at trial and to make crediOilitydetetminations. See, State v. Burton, 163'WNa. 40,254 S.E.2d 129 (1979). (2) The Court FINDS andC.~NC:LUDES' that the jury weighed the proof/evidence that was before itanddetetmined that the Petitioner was guil~;~f;> two counts of Delivery ofaSchedulell Controlled Substance, To-Wit: Hydromophone and not guilty dione count of Delivery of a Schedule II Controlled Substance, To-Wi'4' Hydromophone and not guilty of one count-of: Conspiracy. (3) The Court finds that the Petitioner argues that the folloWing,testimony was" insufficient for a conviction: . Sgt. Smothers: Of course;you don't actually see the transaction:tak.e'p'f@e. 36 ;' ;/ ...... because of the location ofthe camera. It would have been; you know. a·.. , really unnatural actto have captured the actual hand-to-han:dtrans~c:tiOti on the camera. .... (See. Trial Transcript, p. 41). ': ..... ,."., (4) The Court finds that the Petitioner further argues the videotape didnotcapful'e;>" . . . the alleged drug exchange on' SePtember 13, 2005 between the PetitiorieJ;"and'¥s:: '. . Booker. (5) The Court finds that the Petitioner-further argues that ~e alleged drug.· ..,.. transaction on September 15, 20077 (sic) was very unClear and didnoteaptijre't4e" , '......' . alleged drug transaction, resulting in charges filed against the Petitioner. . (6) The Court fInds that the f6Jlowingtestimony of Deborah Bookerdescribesitl'i,e: ..... drug transaction in detail and that was the video tape at issue: State: Ma'am, let me diiectyour attention back to September 13, 20Q5~' Were you ~ctive asacoQperating individual with the policeattliattin'ie(·.··· Ms. Booker: Yes. State: On that date, wer.e you asked to go to Vine Street, near.Prin~tori West Virginia? . Ms. Booker: Yes. State. Tell the jury howitis that you met up with police that day? Ms. Booker: Well,I McJ:itllet up with them like down the stteetfrom,there:. c And, uh, they had give'm~nioney and I called him to buy some1:liiilg~·:&.d: then I went to Vine Streetto"a girl named lulieBell's house and·tl1at:s·· where purchased. State: Okay. You said you called him. Who did you call? 7The Court notes that the alleged drug'transaction the Petitioner refers tooccurred~ri- . September 15, 2 0 0 5 . ' . . ,' .,".: ., " >, '--, Ms. Booker: Hun? State: Who did you call? Ms. Booker: "B." Andre. State: Okay. The defendant? Ms. BooJier:King. Yeah;, State: That's here today. Ms. Booker: Yeah. State: Had you had...di(i:YoU know himpriOfto September13~ 200$1' Ms. Booker:, Yes. State: How is it that yoti·knew him then? Ms. Booker: Uhin;wdl{l'was strung out on drugs and he was dealer':p.atl;:. of the time whenllewaS' in town. I', ,,' State: Did you, ~didSt1iepol1ce ask you to wear a wire? '. Ms. Booker: yeah. State: And how did.thatiwhere did that go on you? Ms. Booker: Uh, on· asIiirt Button on a shirt. State: What did youd6'tli~fday?. . Ms. Booker: What did Jq.o'that day? State: You said that'Y()l:ftook some money. you made a call to happened then? liini:<wb.at: . Ms. J,3ooker: Vb, r went~upitothe residence and I purchased'someF4i1au4id~:·· ... State: Do you remenll5erhow manydilaudid that you bought? . Ms. Booker: I think:itwastwo~ 38' .,~ State: Okay. And, uh,thatJs been what? Nearly two yearsa;go? Ms. Booker: Two years· ago, yes. State: What did you do after you purchased the dilaudid? Ms. Booker: Uh, I drove back to Charlie. And I give him whatlhad" ' " bought. Alld h~dooldherecorder and then I left. '" .., . ' -' ¢ c· -~" : ¢ State: Did you, uh,:did:'y'ourepeatthis again some later date? Ms. Booker: Yeah. State: About Septemoer:15th sound-about right? 200S? A couple ofdays .. ' ' '" later? Ms. Booker: Yeah. State: Could you telhthe'jury what you did that day? Ms. Booker: BasicallyTdidthe same thing. I met them down the,street' ' ' and went to the same residence on Vine Street and I brought... botl~tisQme:< dilaudid and then I tookit back to the Drug Task Force. . ., ,.' State: Okay. Were you: wearing a camera? A wire on thatday also?::" Ms. Booker: Yes. Itwas·oD. a button up shirt. State: And what did YOU(lo,withthat after you made the purchase oft~e . drug? Ms. Booker: I gave itstraighfback to Charlie. .' ,"; State: Ma'am, whois'it-thatcyouon September 13th, 2005 andtw(Hiays ¢. ' later on the 15th, whois·if:thatyoupurchasedthesedilaudid:from?" Ms. Booker: Andre King ¢. . ,I (See, Trial Transcripv.pp~81-84) (7) The Court finds that the folloWing testimony ofAndre Kingonexoss:" . examination also describes the drug.transaction that occurred on SePten:l;her~:5(:.!':' 39 . . ;- .. . ".~ ' 200S: State: Now, I'm tight y<?prtestimony on September'lS, 2005~ thisll;tst'4i~J~::/'" that we just watched~ yati'in:fact gave you some K-4 dilaudidsct(fMs~:". . Booker, is that correct? . Mr. King: No, sir. State: Isn't it your testimdny:that you'said that if you came across some,:; " ....... and so you got her sonie? ' . Mr. King: Yes. If I:carne across some, I got her some. Yea,h,Lgavelier:" some that day' State: Okay. So- Mr. King: -Some I had:Jtwasn't like we was selling them to her:.or< ,,> .' anything. lowed her that,. . . State: So, you delivered'K-4Dilaudids to her on September 15th?." '. < ¢ ~ ¢ ¢ " . - Mr. King: No. I never; lowed her. I owed her. lwas paying back~debf .' that I owed her. . State: Maybe it's asemantie problem. You had some K.4Pilaudjqs'in;'· your hand and yougave.t1lem'to her, is that correct? Mr. King: Yeah. 1 gavejlierri to her. I did not accept anymoI).ey' nonrJiet< or none ofthosethings:;c Sothat's·not. .. .I don't. ..! wouldn'tsaytIfufWO~i(f.· ¢.. be dealing. That's just;l~~ifIhad a Tylenol,in my pocketandyouiHaqrd-:' headache and you siU4giYe.aTylenolso that means I wasdealm,g':thenj' State: So, it is basica11ya'nappenstance that on the 15th she catledup'~urd:;' you had some pillsand',sh&cameovetand you gave them taher?:·, ..' Mr~ King: Yeah, beca~\shehadgave me some oxycotin (sic}before':",: when I wasaroundhere'pefore. And she told me, you knowwhatl~ni'?'-" . saying, that I owed hetfor'lnem. So that was all right. Shedidir~t'wa1:'J,tiid'" money_ State: How many piUs',did'yo:rt ~ve her on the 15th? Mr. King: Itwas'liketwopil1s~ I didn't owed hernothinghut.two'p1l1~i'i.: . Ao' State: So these thing.s are'$25 a: piece, right? Mr. King: I don't knoW. 1 didn't pay her for them like that. State: Now on the tapeji' looks like you give her a big oldh\1gon.the'l 5th; ' is that right;> Mr. King: Yeah. We;waScool. State: Because you were close? Mr. King: Right. State: But immediatelytheteafter you're asking her to lift her shirt JlP;'..'· ... aren't you? Mi. king: Yeah, because~Let me ask you this question. I understa,nd'·wh.at . . you're tryingto getto. The Court: No. Just answer the question. Mr. King: Okay. Oh. Yes. I asked her to lift up her shirt. The State: Andthat's.'because you're looking to see if she's wearinga' . wire, aren't you? Mr. King: Yes. The State: And, in fact,youbasicaUy accuse her of that, aren'tyou?' Mr. King: Yeah. Becau.seshe never acted like that before. (See, Trial Transc~pt~ pp;120~ 123) (8) The Court FINDS 1tndC()~CJ!jUnES 'that in light of the Petitioner~s and Deborah Booker's testimonytnat a jury could reasonably conclude.heYoI{<La'·· . reasonable doubt that a drug transaction had occurred. (9) The Court FINDS and C()NCtUDESthat the videotape was additional: .. evidence for the jury to consider,~brittbere was sufficient evidence to sustlin'the·.· 41 (,' ,.' verdict without it. (10) Therefore, The Court FINDS and CONCLUDES that sufficientevrde¥ce:.', ,,' . existed to convict the Petitioner: oftwo counts ofDeliver ofa Schedule IT Controlled Substance, To-Wit;:F.Iycttomorphone. (11) The Court FIND;S and"CONCLUDES that the Petitioner's clainiof.. instrl-ficient evidence t()'suppOtI;'bis conviction made in Claim E is witiioutIl,l~nt;;; , .' Sergeant Smothers Imp~opiilyi~testified regarding other crim:es;'Wr(l~gs~racts; pursuant to Rule 404(bl-o£itli~"vvesfVirginiaRule8 ofEvidence'witIlQu~;,~,,' . ' '. providing the Petitioner.pro.Iier;~l1oticefr.om the State;and with<iJJ.ta " McGinnis hearing bemgccc:btdl1cted. The Petitioner' s Argument: The Petitioner argues that Rule404(b)eyidence is sensitive in nature and has ahigll, tendency ofresulting in prejudiCe and that th ¬;WesfVirginia Supreme Court ofAppeals:has{ . extensively fashioned safegwU-d~ regarQingitsiiadlriission. See, State v. McGinnis, t93W~:V'~; . 147,455 S.E.2d 516 (1994). The Petitioner argues that Sgt. Smothers 'improperly testified regardingthePetitioIlet!s . .desire for a "blunt" in response to' a question;by:Mr; Cooke.: .. ..-'. ATTORNEY COOKE: Okay;-; Pidn'tshe stop at an Exxon station? . . DETECTIVE SMOTHERS~Now;wait a minute. Yes. She did. Yes. She/did;" I'm sorry. . . . ATTORNEY COOKE: Okay. DETECTIVE SMOTHERS: A.ndtliereason she had done whatwasinari~arliei.·· telephone conversation thatshe'nad'with Mr. King, he had told heft1iatb~'> . wanted her t9 bring her what'tHeycii1I a blunt And a blunt is simply a cigarthat~'tliey use to hoUowout and put miIDjuanaihr( 42 .. . ,:':' . instead of tobacco. Or mix:the'rilarijuanawiththe tobacco. And'to be honest , with you, I've never been ablejoisee how they do it without tearingthe:c;gar'up . but most people seem to be able to do. (Trial Transcript, May 30, 20(')7,p~55, Exhibit I). The Petitioner argues that the above exchange falls within.404(b) evidence of an/ McGinnis hearing held to determine admissibilltY'ofthe testimony regarding the illegat/Qr'Ugmse: .' . not at i~sue at the trial. The Petitioner arguesctliafthe admission ofthis testimonywithOl;1,fpnhl' . ¢. notice from the State, without a pre-trial hearing'~and without a curative jury instruction was . clearly prejudicial to the Petitioner and warrants~areversal of his· conviction. ThePetit;oner" further argues that'Mr. Cooke was 'ineffecti.vein>failing to object to Sgt. Smothers' opinion/theory testimony as unresponsive to theqpestion asked,thus failingto preserv'ethi~:·· ..... . ground for appeal. The Petitioner argues that Sgt.Smothers~testimonyregarding the Petitionertravelip:g:t()/ " Columbus to obtain illegal drugs constiti1ted'~40~) evidence of other ctimes, wrongs, 01' a(!t~F'. . '.. , was inadmissible. The Petitioner argues that aftrial, Detective Smothers offered 'hisopiniorrof . ¢' .. . why no drugs were found when the PetitioneliWas taken into custody. The Petitioneroffers'the: ... ¢ ' . : . . ~ .' .' following testimony from the trial: ATTORNEY COOKE: Okay;rDidyousearch the room where he wasstaymg7;' DETECTIVE SMOTHERS: Myselfand Sergeant Compton did. ATTORNEY COOKE: Did you:fmd anything? DETECTIVE SMOTHERS;' There was' a sum ofmoney that was taken. . .. ATIORNEY COOKE: Okay. DETECTIVE SMOTHERS:Di!ih~tfmd any drugs which would he nO~/y~)ll' know, when drugsrunlow, thenyciu go back to Columbus and you reup. cOr: . restock, resupply. (Trial Transcript, May 30,2007,p.57, Exhibit J.) This Petitioner argues thatthis eviden~was offered by Sgt. Smothers andnotjn'.JeSP()n~e; . . toa question asked by Mr. Cooke On cross~exalnination. The Petitioner argues thattherewAS: . . . . never any notice of 404(b) evidence offered:hy,th~ State and there was no eVidentiaryheafirigr: . . . , ~.". ' " held to determine admissibility of evidencethatdealtwith illegal drugs use not at iss:qeatctrial:"~ . ' .The Petitioner argues that admission ofthis''testimony without prior notice, a McGinnt~:1:l~g~;J: . ahd a curative instruction to the jury, wascle-arlyprejudicial to the Petitioner andwarrants. ',.. reversal ofhis conviction. . , The Respondent's Response. The Kespondentasserts that this testimcmywasan' urisolicited and irrelevant diversioll, and·the:hy.pofuetical uses for a cigar had no,materia1'i:ril~~cr: ollthe'jury's verdict. :CIaifhF: Findings of Fact and , Conclu8ion~!~f>:taw. The Court makes the followingrspecift~'"'::' ' ' . , filldings of fact and conclusions of law regardirigclaim P: (l) The Court finds that Rule404(b}'ofthe'West Virginia Rules· ofEVide:nce states the following: ' Evidence of other crimes;'Wrongs,oracts is not admissible· to prove the cnaracterof'a:personinorder to show that h~ . or she acted in conformity,therewith. It may, however, he admissible for othetp\U':Ppses, such.as proof of motive, opportunity, intent, prepar;ation,plan, knowledge, identity; or absence of mistake o:r~~ident, provided that upon reasonable notice inad.yailc~oftrial, or during trial if the court shall provioopretiia.r·notice·in advance of trial, or ); . 44 during trial ifthe cotirt;excuses pretrial notice on good cause shown. or the generafriature of any such evidence it intents to introduce attrial. (2) The Court finds that priqi:,t6?admitting 404(b) evidence, the Court must . " ,'" conduct an in camera heanngtodetennine whether, by a preponderanc~~..of;tli¢'< , ' evidence, the acts: or conduct,;occilrredandthe defendant committe~ttliose;acts:·:: See, State v. McGinnis, t9J:W';Va. 147,455 S.E.2d 516 (1994). (3) The Court determines thatthe acts' or conduct occurred, the Court mus~#),eri:, f : ..: determine the relevancy ofthe e#dence under Rules 40L& 402 andcoud,ucf~f;' Rule 403 balancing test. See,R¥1¢A03 of the West Virginia Rules of;Evidep~¢~/:··F Taylor v. Cabell Huntington;Bosp;~208W.Va. 128, 538 S ..E.2d719~2QQO);. (4) If the Court detenniri.es that;tb:eR.ule 404(b) evidence is admissible;jrs.~QBtqL·" instruct the jury on the lilriite~fpurPosedforwhich the evldence has'bet;n. admitted. A limiting instrtictU~J.lShouldbe given at the time the evidence.is·, offered and ~epeated ill thegeneriil>jury charge. See, Taylor v. C4bellHtihtingt~n'~" Hosp., 208 W.Va. 128, 538'SJ~~~d 719 (2000). (5) It is not enough to cite, or mention the litany bfpossible'uses listedirithe'/ evidentiary rule governing adm'i'$sibUityofsuch evidence; the specific.an&p!e9i~~:··' purpose for which the eviden~e:iS{9ffered must be clearly exhibitedjnthel"~Qtg~::. ',' . ,'. ,' ...... and that specific purposemust'1?~;.:tdldtothe jury in the Court's inStiuclions?;$f~~~:·'··'· v. Johnson, 210 W.Va. 404~5-5'1S:E:2d811 (2001). (6) Based upon a reviewoftb.e:l'eCQrd, the'Court FINJ)SandCONCLUIi~s;:'; .. ,'" , .....,. ,;. that the Trial Court didnotconiiu~hnincamerahearingto-determil'le'wheth~~·,~ 45 ····,~".·(C-···"·· .. ~<' . . ..J " ,. by a preponderance of the evidence, the Petitioner had used drugs. Sgt:Smothers~' testimony regarding the bJuntoc.curred during cross-examination and waSoff~re(F by the witness and not trom.co.unsel. The Petitioner's counsel did notobjectcUid' ',. ' " .. .f' the Court heard no argumentregClidingthis issue. (See, Trial Transcript; p.SS):' .", (7) The Court finds that duringtliePetitioner's testimony on direct examinatiOll.r he stated the following: Q: Now. And therein:2005, September through October, wben~ese"" events happene&you'wereusingpretty heavily, weren't you? A: Yeah. I was using.C>Xycotin (sic)... Oxycotin (sic) then. Q: Okay. Now. 00. when, un, on the, 00, the 13th of September that was " the first dIug transactioP.' that you'vebeencharged with making, .ub.;:' " when, 00. that, OO,wllenMs:Sooker brought you a blunt what...what. " happened there? . A: Earlier that day she·hadtcalled me and I had talked for ammme; .She . asked me if I was back. thad owed her a couple of dollars or whate:ver;' ' And 00, I told her, you;~ow. grab me a blunt. She all wanted to see;j~{}u.· . what I'm saying. Sotlienshe came up there. Brought me aiblUIit she'iliel& back then. And, you know, I see'a:computer saying like I'm doing a drugbuyand'" when she had beenup'togive me·back my changefrom:the moneyI'd\: .. gave her earlier and the dude-that bring me a blunt shell. Q: Okay. So youdidri~t.sellany. A: Naw. (See, Trial TranscripkpP.J16-117). (8) The Court finds that the Petitioner testified to asking Ms. BookertobciJig:liipl: '>i' a blunt, and that she did so. (9) The Court finds that this evidence was presented by the Petitionerattrial.to? '., ~ explain the events betweertl300kerand him. (10) The Court FINDS and'C0NCLUDES that the Petitioner's claim ,of ' > > ' improper 404(b) evidence ~lrig;admitted at trial without notice anda,McG~1'l1Jil: , hearing made in Claim F is Without merit. Claim G: The evidence obtainedbyt1i~icoii.fidential informant was tainted\ib¢cau~~.!Jh~ " Southern WestVirgiiiiaTask'Force'failed to,thoroughly search ,tlie, ' " " , ' confidential informantmd'eiisurethatshe did not-have;c,ontrolIed": substances on her personbeforEtshe entered into thealleged':drug' transaction. The Petitioner argues thatDeb~r¢.i;Booker, a notorious drug addict;';w~\:I,ti.I~c1> , as a confidential informant but was not properly. searched prior to the purchase of, hydromorphone. The Petitioner arguesthaLbecauseofMs. Booker's drug use that she'coul&l1~ye " " had hydromorphone pills on her person prior to going the residence on Vine Street ana, o:r, allegedly meeting with the Petitioner in her car; The Petitioner argues thatbecause;the confidential informant was not thoroughlysearched'prior to the alleged drug transactiOn, any , 'evidence presented by her to the Task Forcewastrlnted and could not be considered adiriissiple> at trial. The Petitioner further argues thatadinitiing-this evidence at trial violated 1lisdnepro~~sf> tights, and resulted in his conviction of CountS,One and Two of the Indictment. TJleReSpondent's Response. The Resporideritdid not directly respond to this claim. 'Olaim'.G: Findings of Fact and Conclusiobsiof-'Law." The Court makes the fol1c;iwi:ng sp~ci~~'(;;' ",:fiD:dings offact and conclusions of law tegardiiigiclaimG: (1) The Court finds that thesearchofMs: Booker onSeptember 13, 2005~ discUSsec.if"!;;; dUringSgt. Smothers' direct testimony as follciWs; Q: What did you clothen? ¢ ¢ ' 47 ".j A: Well, we, uh, met With MS';:aooker. Her vehicle was searched;!Her person was searched as possible fora,:mait to search a woman. Uh- Q: This was on September 13t1i~ is that correct? A: On September 13t h, this was' around one o'clock in the afternoon. Q: Who else was present with you? A: Uh, that day there was Sergeant Centeno was with me. Andalso,uh, Ibeljev~> . ¢... ¢ . Deputy lafolla, let me cheekand'inake certain. .. Q: Okay. Are those gentlenien~ . , A: Yes, Deputy Wolla thatworKS';withthe Task Force, he's from McDowelf '.." . . County. Sergeant Centeno is'a;State Trooper that is actually the.coord.hl~toriover .~"'. the Task Foree. .. ' . '.. Q: So Ms. Booker was sea.rched~jsthat correct? A: Yes. (See, Trial Transcript, pp. 38..;39). (2) The Court finds that the search ofMs'; Booker on September'15.th wasdiscusse¢ , , .'~ .. during Sgt. Smothers' direct testimortyasfollows: Q: S~rgeant, let me focus youra~entionon'September 15 th ¢ Uh, thedateQll~g~' in Count Two of the indictment/ Did you meet with Ms. Booker that day? . A: Yes, r did. Q: Do you recall ... wasthereanyone else with you? A: That particular day SergeantCentenowaswith me. . Q: Did you in fact hookherwitbh;tcamera again as you had. onth~ 13th? ." < .....'. A: Yes, we did. Q: Did you in fact give hermoney again as you had the 13th of Septemheld '.. '48' '"g'. . . . ,. · ., It . "'" . " . ' .. ' ' .', .' .. A: Yes, we gave her $200~ '''.,',' Q: What did you all do then? A: Okay. We followedthe'exacfsame procedure. She was searched. Th~~eAicl~/;.·' . was searched. Uh, gave hernioney. The recorder was placed with her exacttyJ:fl," .. the same way and proceedto207Vine Street. (See, Trial Transcript, pp':-44,:4S). (3) The Court fmds Sgt. Smother's direcHestimony regarding the search ofMs';'IlQok~r" was cross-examined by Mr. Cook~inthefollowingexcharige: . . Q: Now. Well, let~stalk alittle;·bit'about the September 13thtransaetion;.,:;Uli0t~e~:: uh, the cooperating individual;uh;'when.~.when you and the othero:fficer:hadC:~ fitted her up with a camera andeverything. She didn't go directlytoth.eNine"· . Street residence, did she? A: Uhm.. .I'm not aware of an (sic) stops that she made along he way. Q: Okay. Didn't she stop ahm}ExXon station? A: Now, wait a minute. Ye.s{Shedid. Yes; she did. I'm sorry. Q: Okay. A: And the reason she had donethafwas in anearlier~I'mgladthatyoureminded( .,.... me of that. In an earlier telephdile~onyersation that she had had-with McKiiig;:,;:: . he had told her that he wante~her'fo Dring her what they call a blunt; Q: And a blunt is simply Ii cig~'that:theyuse to· hollow out and put.marijwiti~qn· . instead oftobacco. Or mixthe.matijuanawith the tobacco. And to"he-honest . . ~~: . .. with you, rve never been able:to'see how they do it withouttearing·:the\cigar.uii'· . ... . but most people seem to be abk~to~do~ . .: ";.'. ,,~ . Q: Okay. So now...now,-wl;ieliY9u'had searched her and you indicated irtyd~;' report and through testimony:.thatMr.- through questions Mr. Ash-had as1?eo.''Y?#~i-> you had searched the coopeliitlh:giridividual before thetransactionstarted?~::' " . .- "''' A: Yes. ...... : ':.-"' ,-" . Q: Now did that searchiriclude:iarrinventoryofany cash oranythingtliaisl'i&J#~~Sc::Y . ' ~. ' ' .. '-:~ have? A: Well, we knew she hadenriU$1fmoney to stop and get whatshe needed;tQ~~t;'~;' the Exxon Station. Q: Oh, okay. A: That had actually sIipJ>edmYmind. - . (See Trial Transcriptpp.54,.SS)~-· (3) The Court finds that Ms. Booket'w~:searched in the same manner on bQtligepteii;:b~idi ... ,~ 13 and September 15,2005 wherislleWas"working as an confidential infofuiarif'Witlitfi~·;! . Southern West Virginia Task Force. (4) The Court FINDS and CONCli~ESithaHhe jmy heard evidence ofMs;BQok~~~s,>i searches and weighed the credibility,··of$gt~Smothers' testimony. (5) The Court FINDS and CONCLVDEstthat'thePetitioner has failedtoprov<:rthat/md';; . . ' ,-. ; the search was tainted and not apropers.e,8rch. . . .' (6) The Court FINDS and CONCLlUf)fInS;;thatthe Petitioner's claimoftamtede\dcJ:efi~~"\ admitted at trial due to an improper:s~~h"itiadein ClaimG is without merit elicited'and'iitr,oati~~~tP~rjuredtestim~nyfromDeb{ji:~It'B~ql{~r\;~, The State . ¢ ';.': -. regarding heremployment~fiPrlli~etonCommunityllospitalaiidiiO'U:t~,ck';;' ..... Steakhouse. . . . 50 "."The Petitioner's Argument: The Petitioner argues that the Stateinti:odu~ed perjured testimony at triaFbecause', Deborah Booker testified that she was employed"at Princeton Coimnunity Hospital and;():tit6.aek '. . Steakhouse at the time of the trial, lied on; the witness stand: MR. ASH: Let me ask you, ar~you:working? MS. BOOKER: Yes, sire. MR. ASH: Where are youworK.irigat? MS. BOOKER: I work at Priricefon Community Hospital in the lab. I'm a ' Phlebotomus (sic)., And 1workafthe ,Outback Steakhouse, part time. (See, Trial Transcript, p. 79). " , . .'. The Petitioner alleges that Ms. B66kerwas not working and therefore, her testimol1yi~'. ,.,' < . petjured. The Petitioner's counsel contactoo'RribHarbaugh, the manager of the Outback;,' Steakhouse,.regarding Ms. Booker's employmel}t and Mr. Harbaugh statedthatshehad:never.:c . been employed there. The Petitioner's counselaIso;contacted Janet Home ofthe HU:p1ari ' ,Resources Department of Princeton CommunitiFIospital and Ms. Home stated that Ms; BOoker;' " ' ,had never been employed there. The Petitionerargues thather perjured testimony at triaL ' Vkilated the Petitioner's constitutional- right to:due process and a fair trial. Tlie'Respondent's Response. The Respond¢ntargues that it had no reason to knowwhethe~> '" Ms:Brooks worked at the Outback Stealiliouse,otPrinceton Community Hospital. The ¢ Re~pondent further argues that the issue is imma:t~rlalto the verdicts in this case: The' Respondent cites to State ex reI Warr~n D; FriJnlil.inv. McBride, 2009WL 325536{WN~:)SyI. Pt. 2, :; '. ' ' ' .' ¢ ". "';:.: . r "In order to obtain a newtria1:oIlaclaim.that prosecutor presented'false ¢.. testimony at trial, a defendant'm:ust demonstrate that (1) the prosecutor' presented false testimony, (2)'th~prosecutor knew or should have known the testimony was false,and'p)';thefalse testimony had amateriaFeffect:. .' . . on the jury verdict." (Emphasi~rA.dded). .. ' Clam H: Findings ofFaet and ConclusiQns~of'I:;aw. 'The Court makes the foHowirig~p~ft1:c;:.:.;, findings offact and conclusions of1aw regard1n:g'Claim H: (1 ) The Court finds that the tbreereqwements'under State ex rei Warren D. FrcmkJi~7:V»' McBride are conjunctive and that alkthreerequirements must bernet before aneYVJriaf . may be held under the claim. of aprose~utor presenting false testimony. . . (2) The Court finds that the Petitioner' and;the State agreed that the hQspital'recor<;lsfof' .' Princeton Community Hospitald1d;nofslipwthat. Deborah Booker'was anemployc.e;> during the relevant time period. , (3) The Court finds that it appears that Ms: Booker was not truthful or was'mis~eiviDi+": . '. her testimony regarding her employmertt'with the Princeton Community Hospital; .' ¢. (4).The Court finds that the Petitioner failed to show that the Prosecutorknew·or~h~lJld';:""": ·have known that the testimony was false;: (5) The Court fmds that Rob HarbaugJ:I:diclnot testify regarding Ms. Booker's' employment at the Outback Ste8khouse·dUring the Omnibus Habeas Corpus .. proceeding held on August'2, 201 0. (6) 'The Court finds that no documentaly:eVidence'was presented duringthe,OIl1.l.libu~ Habeas Corpus proceedingregarding:Ms~l;lOoJ<:er's'employmentwith Outback ... Steakhouse. . " ~' (7) The CQurt finds that it cannot consi<tertheallegation that Ms. Booker did' nor'''York> . 52 . /: ~... " at the Outback Steakhouse during thetelevant time frame. (8) The Court finds that undertheW;Va~"Code §'61-5-1, pexjury is defined as: (a) Any person who isrindet (lathor affirmation which has been lawfully ¢.... , ' administered and who willfully testifies falsely regarding amaterialmattet':iif:a(;,: . . trial of any person, corporation other legal entity for a felony, orbefore.'aIlY' .' ... ¢ "". grand jury which is consid6ing'felonyindictment, shall be guilty.ofthefeiQny~<· ,. offense of pexjury. (Emphasls.:added); See also, State v. Crowder, 146"W.Va~&lQ,·;"· 123 S.E.2d 42 (1961). or ..:;, (9) The Court finds that "material" is; defined as: a Of such a nature thatkIiowledg~·.ofthe item would affect person's. d~ciston~" making process; significant;:¢ssential; See, Black's Law Dictionary. .' " " (10) The Court finds that the testimenyregarding Ms. Booker's employment had;no· material effect on the jury verdictashetemployment has no bearing to the drug .' transactions. (11) The Court FINDS andCONCUllll:ESthat the Petitioner has failed,to prove;~t> ,,' . Ms. Booker's alleged perjuredtestimony'was intentionally elicited by the Pf?seCOtor:hi> ,., ' .. this matter under Franklin. , (12) The Court FINDS and CONCLlJDES'that Ms. Booker's false testimonyregarQh1g'·, '~'. ' her employment with Princeton Comnit,tnitY Hospital was immaterial to the·outoo.me;Qf "- ~'.' . . ." the Petitioner's trial; and that the Petitioner's claim of perjured testimony b~ing:aclnlitfed.;/· .' ,. ~ . at trial made in Claim H is withoutmeri( Claim!: A s~ntence of four to sixty;ye,ai$~ijtthe penitentiary is excessjyeari~r" disproportionate to the' chal'~~~r'and:d'egreeof the"offtmse purs:Uilllt' . to th~ Eighth Amendm:enfor;t.h~:'iUnitedStates ConstitUti'On' and weSt;. ". . Virginia State Constitutioni~fficl~LIlJ: ge~tioilS~ . ''JJliePetitioner's Argum~nts: 53' ".' .. ,W ·.. '·. ·53.' · " " , ", .' ,- .... -". The Petitioner argues that his' sentenc~;Ts'tept1gnantto the pnnClple:g; ,::' Amendment of the United StatesCoilstitutidrtr:~(nlle :West Virginia ,'m Section Five. The Petitioner argues'thatJUs1PQUriSel'failedto infonJElhim ofthe:;;e~istc~jil;ge:i'Q~? , 'the sentence enhancement statute for seeorlQ:~,and>s'\lbsequenfdrug offem;es; ,he; dkPti()~ri~iiej)1tlfutf;~; , " " ";lie could be sentenced to four to sixty yeru:.~'4i'j~risOn. , advised ofthe potential sentence prior to i~Wg:toitrial; the Petitioner ""n'l'llrrha" ¬t~~Qn,:sid,;!~re,(fi~} 'possible plea offer,if any. The Petition:e:r~¢t'arguesthat due to " ,', received an excessive and disprQPortion:at~sefitence~ . , , , 'The Respondent's Response. TheState·di,dnotdireetly respond to this claim. " ClainJ:l: Findings of Fact and C()nclusio:lis~dfDaw. The Court makesthefol1Qwhig:s~egiftp, findings of fact and conclusions of law~gaidlligClaim I: (1) The Court finds that thePentlonerwas sentenced to two conseeutivese#t~#~~~,U of one to fifteen years irrthe'pemtennary by the Honorable' DavidKnig1it!~rii~eh~;:' , ... ' " '~<' 28,2007. PursuanttoW.Va. Code§ 60A-4-408, the Petitioner'ssentencewa$:, enhanced for second or subseqU'¢nt,offenses. (2) The Court finds that W~Va~Code §60A-4-408 states the following; (a) Any. person convicteq'of a second or subsequentoffense'uttd¢F~~'t chapter may beimpriSoh~'for a term up to twice termotherWise:~: authorized, or both.'wnbto,:atennofimprisonmentis aou111~ijunqeJt': section 406, sucli't~'9FinlprisOnlnentshal1 notbefui-therilicre~s8d;;;;. for such offense under":ihi~~~ubsection{a), even thoughsueh:!emidf>}:"':' . imprisonment isfora:secOrid~ot.subsequent offense. '" . the (b) For purposes of:thi~;s¢ction, an offense is CO]lSi~iel'1ed·,a;·~c~eol.'icl;qr);:: subsequent offense, if~pt:iOIto ms'conviction has at any timebeeri:2~n\d9te&'uridel"this c~pter ofthe United States' ptof'any·state relating to narcotic' ,l"I-".Llc,O" .. .u.1aJ,~;.Il,;ia~,:"":"" ,,<' :: depressant, stimulantf.6t:.h311uCinogenicdrugs. (3) The Court ffuds thai}\i'c;'V,r]:COde,§60A-4-408 P1"9vides[Qr "aU, irn~s~~lilt,~,~,<,!~ ¬~ for twice the term otherWisd~qth~rtze&.5fherefore, a sentenc~n~j:tldg~~p~tt',;-i;!;:; ¢.':'~~:,.:.'/.:.:,~ ~ .. ';;<~":, ;', >-," -,,/ within his discretion; increas~ihec,seritencetwotimestheautholjzeda:W~t';:?! <, .<·::~,·X_.f: (4) The Court finds that in St~te Y. RUtherford; 223 W.Va. 1, 672' S.E.~d;-b~': <. :>r:"'_,:c:i~'<5 . -:',{-..,<_.- ¢ .....':>:;.'..:.:,:..:..:.:.: <" ::--'~.;':' ¢ ¢ , ¢ ¢ ¢ ¢,., ¢ ¢ " ¢ ¢ ¢ ¢ (2008), the West Virginia Sgpret:neCourt of'Appeals affirmed;WNa.,C94~'f:E.:,;··;};;gi:;:~{li;iig;; ~F;; .., .<-,:;:. .,,:"', '> <,>,;:;t· § 60A-4-408 as beingconstf#iti6na1:iinder;boththeFederalandState" Constitution, specifically SyH~busi:Point4which' states: -:;. ~ .. ) ".. ,.' ";"<:~\;:'-~~:>:' . ," . .,'- _:: ,,;'. . .: :.: ::··:~:~::i~· ' ; < /;;.<_:i. ,,·ii::·;jj:ji:f~:~ -~., " ,,', ',".' .... ,'" '\~;):"";"~.. ::: ·==z~eE;!~t~ ¢ ¢~i[z"i~~i~I~ found in Article IIF§ftG6ftI1e':WestViTginia Constituti9n~": '.' . ¢""',:;.'!'.. ¢ y.. :.}:;.';~;~:~;-;, The Rutherford Court founditrmf'W.va. Code § 60A-4-408·reqUireS0n1y;~;.~~ij'g:;i,~S~·~~;.};;;~iUl'i :.' . .' ,,:,,~., ~. :/-;,:. ';;·;x,:<.~,. of fact of a prior convictiolifuU:itd~J5to"·ehhance adefenclant~s:sent~p¢~~d;~~~~·~:·~<'~<.;xf~l;~ Apprendi v. New Jersey, 53.p<tLSA66;120S. Ct. 2348, ~" ¢ 147;L.E4~2~d;·435'::~79.0~J;y~·?~;~:;;·:~,·j~: ¢ - ,'- - . ' , ./"!'-~"':";"'.:-:' . . it meets its constitutiona1due~'Pia6essstandards. (5) The Court finds thattheUIiii~(j;~8tates~Supreme - ," ,i:,: f?"./·:_?~:';~:' ",\-<, ( ..,- ,'-, _ '-. ¢ N ,. ,'.>,.: :- .,:, :~r-:;;:-> ::.:;) .-'."~: ',-:)': . ~', "<'.::::-::">' '.......,: .;,T'2-\:::~' Couitfo1:llld.th~ta;;~tr;;><>;c/ ..::;;;;:j':;%' ,'" .:';.. :','.,,' '.:', difference existed betweenaC~eptiIig;thevalidity of a priorjud~ntQf . . . '.;'.... ",>', ,.' .:.: ~tii~,:,;;:) /.::,:';,-.';::; "".' .. ;'i'':';:,',.;' , conviction entered 'in aproceedingd.irwhleh·the defendanfhasanghttQ,a:jttry't· , '. ¢ " ,': "',- -:..:\C:.:'" :'->;.','::'>:,', .'. ·;-'~"';;:~~i? . , "".-".-'';'-:.: " ' , /"",:; tria! and the right requiredbytlr#;prB~utor:to proveguiltb¢yondLar.~~~l?f~§f":;~'U . :';.'./J3Sj4\c}) ~',;-"'" ~-~.,>' " '......-:::;~:", ":: '.:::;;:'; doubt, and allowingthejlidg¢~i6~tJhdtilierequirecl fa~tmidet'alesser:$~~dt~~::>"" <";>'+;'\;; proof. The U.S. Supreme.Courl0coD:$iUded':th:at"[oIther ·thantlie:fact?:ttillii1~i.:,:;,.S~;·:,~,,;~g;,t:"J~; conviction, any ~ct that~es'1llepeaaJiyfOF"crimObCyo¢l\lq";~~'i~;;I';Jft;gff~~ " , ... ,'.... '. ",' '. '" ': ';::::', ,-'c" ." ",;."'. ,:' ',:;'~, '...-:"~~.;' , ,', ~-::",.!~.~......:.. . ¢ .',' -. " ',' '.- " " ',. :"",<.. '~.~:·/;;':':·;·~.;;~:::,<6'.'· .:.:." . .:. ':/:. ',;:,:. :;;t'·':~:,':.>:~:·:·':;:e-:: '. ; ',<-/:,,;:~ <> "":':'-'-:"-:-,:: . :,>.~,,: .: ',',', i;: ···~(~~\,fff statutory maximum must.besl.lbinittedtothe jury and provedbeyoud.a. reasonable doubt." . ¢. (6) The Court fmdsthatthe?\\\r:va:~ Code § 60A-4-408 provides agreater~M';l'>/ discretionary, enhancement in aJlY case· involving a repeaNlrUg 6ffen9.er;'~;·):·/ court finds that the judge, notWe'prosecuting attorney, makesthe(mhiin(;ed.;'~> sentencing decision undel' this 'd'rug,; offense' statute.. (7) The Court finds that the Honorable David Knight did in sentencing the PetitioneHu),Q~rW.Va. Code § 60A-4-408and .8.uithelr'tOl'ai' . ¢ (8) The Court FINDS'aild'C6N, ¬ L WES'that the trial court' s senience'w~J;< within statutory limits anclwaS,'tj.ofbased'on unpermissiblefactors. Statev.· Goodnight, 169 W.Va. 366, 2878;E.2<1 504 . (W.Va. 1982}at srI. pt.4.,Sia.te,,$"~> Sugg, 193 W.Va. 388, 45'6'S:E:2<.t;469 (1995). (9) The Court FINDS' 8nd", ¬t)~e)jUJ)ESthat. the trial court did discretion in orderingthese;sent~ces~ The trial court rec,itejdtllet:aetors:jt:l~ed'; in imposing these sentenceS;Qn the'feeord during the sentencing heftringnetd bl1~ June 28, 2007. (See, dispositlqntraiiScnpt; June 28, 2010; pp.19-23.)., . (10) The Court FINDSand~.e(jN<;LlJl)ESthat sentences.whicharewitlfui·;:,:,;·· ,', " the statutory limits are not entitled:;jostattitory review. State ,.'-, ' v. Koo.n; 190';.'", W.Va. 632,440 S.E.2d 442(1993).' (11) The Court alsofindscandconcliidesth~ while COlJlsti1:uti~::malpr'gpc'rtt{)~l1tYJ.;;, standards theoretically;canapply.td'.any criniinalsentence~' theyare-toasidii1~;;f~?::;' r applicable to those sentenceswhe.fe:theI'eis either no fixedmaximum,set'bY:QrUi ; " '56 ". ,.' ~<';,~:' ,",". where there is a liferecidivlst·Sllilute: Wanstreet v. Bm-denlcirciler, 523,276 S.E.2d 205 (1981);at,~Yfipt.4. The sentences in:this@tionca.r¢:ho:r¢t, either type. (12) The Court fmds to the crimes for whlchtheywe.:re;~mposed. (13) The Court FINDS iUi(kC9~eLlJDESthat the l:'etltIIO]ler~SClalm excessive sentence made in Clairo'T is without merit. .. -.~ WHEREFORE, for the reasonsset{ortnin:the'foregoing opinion. thecom.i'(j~~~f/~~,; '3nd ADJUDGES as follows: 1. That the Petition for·WritofH~~MY.COrpUS sought by the Petitionet~'s"heJ~¢b~i:::: . DENIED and this action is orderedREM0Wj>\fromtne docket of fros-Court. 2. The Court appoints Nata1ieN;;lIaig~r, Esq.;,to representthe Petltioller:orr>ap.t~aI:',(~f :this niling. 3. That this is a final order." Th~'CiTcwtClerk is directed to disltribute(a"e~rtjlfieidi). :'. -'-.~()pyofthis Order to Natalie N. Hager,'Esq.,atJ605 Honaker Avenue, Priitlce:tolll,\ltV24(l40 'Soott Ash, Esq., at 120 Scott Street, Strite·20d~i:pijriceton; wy. 247~Oi lUl'rI'''tn,thp:·Ke.~!,pOlri4¢m·; . - ,',;atHuttonsville Correctional Center, Huttons.Yille;'·WV 26273. ;~'l'ER: This the rl ofJanuary;201i; ".' :":;: _ THE FOflEGOING IS A tRUE COPY OF j.;O(P'C""1IU; ',' ' ~'. ,.". E\!I~EREO IS· OFFICE ON THE --,-'~~-M" , ,OF' . .
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