Tony J. Walton v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Tony J. Walton, Petitioner Below, Petitioner February 9, 2015 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 14-0196 (Fayette County 12-C-330) David Ballard, Warden, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Tony J. Walton, by counsel Thomas Kupec, appeals the Circuit Court of Fayette County’s February 3, 2014, order that denied his petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Julie Warren, filed a response and a supplemental appendix. Petitioner filed a reply and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying his petition for writ of habeas corpus because he received ineffective assistance of counsel. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, 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 affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. In May of 2009, a Fayette County Grand Jury indicted petitioner on one count of first degree robbery and one count of assault during the commission of a felony. The indictment alleged that petitioner robbed a Family Dollar store and assaulted the manager. Following a twoday trial, the jury convicted petitioner of one count of first degree robbery and one count of assault during the commission of a felony. Thereafter, the circuit court sentenced petitioner to a term of incarceration of fifty years for one count of first degree robbery pursuant to West Virginia Code § 61-2-12, and a consecutive term of two to ten years for one count of assault during the commission of a felony pursuant to West Virginia Code § 61-2-10. In June of 2010, petitioner filed a direct appeal arguing that the circuit court erred in failing to instruct the jury on intimidation. This Court refused petitioner’s direct appeal. In June of 2012, petitioner filed an original jurisdiction petition for writ of habeas corpus with this Court arguing ineffective assistance of trial counsel. By order entered September 20, 2012, this Court refused petitioner’s original jurisdiction petition. On October 29, 2012, petitioner filed a petition for writ of habeas corpus in circuit court 1 asserting the following grounds for relief: 1) nine separate grounds of ineffective assistance of counsel; 2) denial of his right to a trial by his peers; 3) improper use of a photo line-up; 4) denial of his right to a fair and impartial jury; 5) improper jury instruction concerning intimidation; 6) ineffective appellate counsel; and 7) six grounds for relief not provided for in the Losh list. After holding an omnibus evidentiary hearing, the circuit court denied petitioner post-conviction habeas relief. Petitioner now appeals to this Court. This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard: “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.” Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). On appeal, petitioner re-asserts the same arguments that the circuit court rejected. First, petitioner re-asserts that his trial counsel was ineffective because: 1) this was trial counsel’s first criminal jury trial; 2) trial counsel failed to file a pre-trial motion challenging the use of a photo line-up; 3) trial counsel failed to object to an “all white jury”; 4) trial counsel failed to object to testimony regarding the identification of petitioner and challenge the photo line-up; 5) trial counsel failed to present evidence concerning blood samples or shoe size from the scene of the crime; 6) trial counsel failed to object to Detective Sizemore’s alleged expert testimony; 7) trial counsel failed to object to the circuit court’s discussion regarding a question from a juror and its instruction concerning jury intimidation; 8) trial counsel failed to question the victim’s husband regarding the inconsistent description of petitioner by the victim; and 9) trial counsel failed to present evidence challenging the victim’s inconsistent descriptions of petitioner. Upon our review and consideration of the circuit court’s order, the parties’ arguments, and record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on the errors he assigns in this appeal, which were also argued below. Having reviewed the circuit court’s “Order Denying and Dismissing Petition,” entered February 3, 2014, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions of law as to those assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. For the foregoing reasons, we affirm. Affirmed. 2 ISSUED: February 9, 2015 CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Allen H. Loughry II 3
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