Freddie Lee Bragg v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Freddie Lee Bragg, Petitioner Below, Petitioner August 29, 2014 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 13-0684 (Kanawha County 12-MISC-177) David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Freddie Lee Bragg s appeal, filed by counsel Charles R. Hamilton, arises from the Circuit Court of Kanawha County, which denied petitioner post-conviction habeas corpus relief by order entered on September 17, 2013. Respondent David Ballard, Warden, by counsel Derek A. Knopp, filed a response. Petitioner argues that he received ineffective assistance of trial 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. Petitioner was convicted of various sexual offenses in 2010 and sentenced to fifty-three to eighty years in prison. Petitioner s convictions were affirmed by this Court in 2012. His petition for writ of habeas corpus followed. After an omnibus evidentiary hearing on this petition, the circuit court denied petitioner post-conviction habeas corpus relief. Petitioner now appeals this order. 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). 1 Petitioner asserts that his trial counsel was ineffective for failing to (1) properly engage in voir dire with the jury; (2) visit the crime scene; (3) interview witnesses; (4) subpoena a gynecologist; (5) subpoena character witnesses; (6) obtain school and psychological records; and (7) object to a self-incriminating arraignment video. Petitioner also asserts that his trial counsel ineffectively failed to prepare him for trial and failed to file a motion for reconsideration. The following standard is applied to claims concerning ineffective assistance of counsel: In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Upon our review of the record and the briefs on appeal, we find no error or abuse of discretion by the circuit court. Petitioner does not provide any support for his arguments concerning any motions for reconsideration or his trial counsel s preparation of him for trial. Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived. Syl. Pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981). Further, our review of the record does not indicate that petitioner demonstrated that his trial counsel s performance was deficient under an objective standard of reasonableness and that, but for his counsel s alleged errors to prepare him for trial and to file a motion for reconsideration, there is a reasonable probability that the results of the proceedings would have been different. All of the other issues petitioner raises on appeal were issues addressed and discussed by the circuit court in its order denying petitioner post-conviction habeas corpus relief. Petitioner raises nothing new that supports those arguments. Having reviewed the circuit court s Final Order Denying Petitioner s Amended Petition for Writ of Habeas Corpus, entered on September 17, 2013, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to those assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s opinion letter and order to this memorandum decision.1 For the foregoing reasons, we affirm. Affirmed. 1 Because the underlying criminal matter involves sensitive facts in which the minor victim was related to petitioner, we have redacted the circuit court order to protect the victim s identity. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 2 ISSUED: August 29, 2014 CONCURRED IN BY: Chief Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II 3
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