Jamie Turner v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Jamie Turner, Petitioner Below, Petitioner FILED April 10, 2017 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 15-0987 (Cabell County 10-C-713) David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Jamie Turner, by counsel James R. Mills, appeals the Circuit Court of Cabell County’s September 15, 2015, order denying his amended petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Nic Dalton, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his amended habeas petition on the grounds of ineffective assistance of trial counsel, ineffective assistance of habeas and appellate counsel, and a more severe sentence than expected. Petitioner also contends that the circuit court failed to consider several grounds for relief that were properly raised in the underlying proceeding. 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 October of 2006, the Cabell County grand jury indicted petitioner and his co-defendant on three counts of robbery and one count of fleeing an officer. These charges stemmed from an incident in which petitioner and his co-defendant allegedly robbed three individuals at gunpoint as the individuals walked back to their fraternity house.1 The following year, a jury found petitioner guilty on all four counts. Thereafter, by order entered on October 12, 2007, the circuit court sentenced petitioner to a cumulative term of incarceration of sixty years for all three robbery counts and a consecutive term of incarceration of six months for fleeing an officer. 1 Two of the alleged victims were the sons of then-prosecuting attorney Christopher Chiles. However, by order entered July 11, 2014, Philip W. Morrison was appointed as a special prosecuting attorney to handle the criminal proceedings. 1 In 2010, petitioner filed a direct appeal with this Court, which was consolidated with his co-defendant’s direct appeal. On appeal, petitioner argued that the circuit court “coerced a guilty verdict by pressuring the jury to reach its verdict [and] that one of th[e] robbery convictions was improper because no money or personal property was stolen[.]” After oral argument, this Court affirmed petitioner’s convictions by decision entered on June 3, 2010. See State v. Pannell, 225 W.Va. 743, 696 S.E.2d 45 (2010). Shortly thereafter, petitioner filed a petition for writ of habeas corpus and a motion for appointment of counsel. In 2014, petitioner filed an amended petition for writ of habeas corpus and a Losh List.2 Petitioner asserted twenty-six separate grounds for habeas relief. However, petitioner set forth only three independent grounds for relief in his memorandum of law in support of his amended petition for writ of habeas corpus: (1) ineffective assistance of counsel, (2) irregularities in his arrest, and (3) a more severe sentence than expected. According to petitioner, his trial counsel was ineffective for the following reasons: (1) counsel failed to move for a change of venue or to recuse the sitting judges of Cabell County; (2) counsel failed to file a motion to test any of the physical evidence for DNA; (3) counsel failed to discuss the charges with the lawyer that represented petitioner during the preliminary hearing; (4) counsel failed to file a motion to sever petitioner’s trial; and (5) counsel improperly informed petitioner about his parole eligibility. The circuit court conducted an omnibus evidentiary hearing during which petitioner’s trial counsel testified. After considering the parties arguments, the circuit court denied petitioner habeas relief by order entered on September 15, 2015. This appeal followed. 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 to this Court, petitioner argues that the circuit court failed to consider several grounds for relief that were properly raised in the underlying habeas proceeding and that he received ineffective assistance of trial and appellate counsel.3 The Court, however, does not 2 The checklist of grounds typically used in habeas corpus proceedings, commonly known as “the Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). 3 On appeal to this Court, petitioner also raised, for the first time, that his trial counsel was ineffective for the following reasons: (1) failing to object to statements that the victims were sons of the prosecuting attorney; (2) failing to advise that a finding of a firearm could affect his parole eligibility; (3) failing to object when the prosecutor conflated the reasonable doubt standard; and (continued . . .) 2 agree. Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the 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 these alleged errors, which were also argued below. Indeed, the circuit court’s order includes findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit court’s September 14, 2015, “Order Denying Writ of Habeas Corpus Following Omnibus Hearing” to this memorandum decision. Petitioner also alleges that he received ineffective assistance of habeas counsel because counsel failed to set forth arguments for all of petitioner’s alleged grounds for habeas relief, which include failing to make a motion for post-conviction DNA testing. However, we decline to address these issues on appeal. This Court has held: It is the extremely rare case when this Court will find ineffective assistance of counsel . . . . The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim. Syl. Pt. 10, in part, State v. Triplett, 187 W.Va. 760, 421 S.E. 2d 511 (1992). Petitioner is raising habeas counsel’s alleged ineffective assistance for the first time on appeal. If petitioner continues to believe that prior appellate and habeas counsel were ineffective, the preferred way of raising these ineffective assistance counsel claims is to file a subsequent petition for a writ of habeas corpus raising these issues in the court below. See Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (While a prior habeas corpus hearing is res judicata as to all matters either raised or should have been raised at the habeas corpus hearing, “an applicant may still petition the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing.”).4 (4) improperly advising petitioner that pleading guilty to a pending drug charge in Logan county would not affect his sentence. However, the Court finds that neither petitioner’s amended petition for writ of habeas corpus, nor his memorandum in support of the amended petition addressed this alleged errors. “‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly, the Court declines to address these assignments of error on appeal. 4 We express no opinion as to the merits of any subsequent claim for ineffective assistance of habeas counsel. 3 For the foregoing reasons, we affirm. Affirmed. ISSUED: April 10, 2017 CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Margaret L. Workman Justice Elizabeth D. Walker DISSENTING: Justice Menis E. Ketchum 4
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