Alfred Gray v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Alfred Gray, Petitioner Below, Petitioner vs) No. 11-1327 (Raleigh County 09-C-169-H) November 16, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA David Ballard, Warden Mount Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Alfred Gray, by counsel Stephen P. New, appeals from the Circuit Court of Raleigh County s Order Denying Relief Requested by the Petitioner, Alfred Gray, in his Petition for Writ of Habeas Corpus Ad Subjiciendum entered on August 19, 2011. The State of West Virginia, by counsel, Thomas W. Rodd, filed a summary response on behalf of Respondent David Ballard, Warden.1 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, we find that a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. On October 31, 2002, petitioner shot his girlfriend, Stephanie Adkins, in the back of the head at close range. Petitioner claimed the shooting was accidental. Petitioner was indicted on two counts: (1) first degree murder, (2) with the use of a firearm. On October 29, 2003, petitioner was convicted by a jury of first degree murder, with a recommendation of mercy, with the use of a firearm. On December 5, 2003, petitioner was sentenced to life in prison with parole eligibility. Petitioner s trial counsel appealed his conviction. On July 6, 2005, the Court issued its opinion affirming petitioner s conviction. See State v. Gray, 217 W.Va. 591, 619 S.E.2d 104 (2005). On February 9, 2009, petitioner filed a pro se petition for a writ of habeas corpus. The circuit court appointed petitioner habeas counsel, who filed an amended petition and a supplement to the amended petition. The circuit court held petitioner s omnibus hearing on February 16, 2010, and entered its order denying relief on August 19, 2011. That order is the subject of the present appeal. 1 Pursuant to Rule 41(c) of the West Virginia Revised Rules of Appellate Procedure, we have replaced the respondent s name with David Ballard, Warden. The initial respondent on appeal, Thomas McBride, is no longer the warden at the Mount Olive Correctional Complex. Petitioner asserts four assignments of error, including the trial court s failure to exclude testimonial evidence that violated his Sixth Amendment right to confront a witness against him; its failure to exclude untimely disclosed evidence; ineffective assistance of counsel; and prosecutorial misconduct. All of these issues were addressed by the circuit court in its August 19, 2011, order. The Court has previously stated that [i]n 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 finding under a clearly erroneous standard; and questions of law are subject to de novo review. Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). The Court has considered the merits of the arguments set forth in petitioner s amended brief and in respondent s summary response, and has reviewed the appendix record. Having reviewed the circuit court s Order Denying Relief Requested by the Petitioner, Alfred Gray, in his Petition for Writ of Habeas Corpus Ad Subjiciendum entered on August 19, 2011, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to the assignments of error raised in the 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. ISSUED: November 16, 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
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