Donell D. Lee v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Donell D. Lee, Petitioner Below, Petitioner September 19, 2014 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 13-1314 (Marion County 11-C-140) David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondents MEMORANDUM DECISION Petitioner Donell D. Lee, by counsel Sherman L. Lambert, Sr., appeals the circuit court s November 22, 2013, order denying his petition for writ of habeas corpus. Respondent, David Ballard, Warden, Mount Olive Correctional Complex, by counsel Julie A. Warren, filed a response. Petitioner filed a reply. 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. Following a jury trial in August of 2008, petitioner was convicted of first degree murder and conspiracy to commit first degree murder in relation to the fatal shooting of Derrick Osborne. Petitioner was sentenced to life in prison with the possibility of parole for the murder conviction and one to five years in prison for the conspiracy conviction, with the sentences to run concurrently. Petitioner was one of four co-defendants charged in relation to the murder of Mr. Osborne.1 Petitioner filed his direct appeal with this Court on January 19, 2010, raising five assignments of error: (1) insufficiency of the evidence; (2) withholding of exculpatory evidence 1 The other co-defendants were Steven Podolsky, Lafayette Jenkins, and Lincoln Taylor. According to petitioner, Mr. Podolsky pled guilty to conspiracy to commit murder and accessory after the fact, and the charge of first degree murder was dismissed pursuant to a plea agreement. Also pursuant to a plea agreement, Mr. Jenkins pled guilty to voluntary manslaughter and conspiracy to commit murder. Mr. Taylor s charges proceeded to jury trial, where he was acquitted of conspiracy to commit murder; however, the jury was unable to reach a verdict on the first degree murder charge. Thereafter, Mr. Taylor pled guilty to second degree murder. 1 and inappropriate comments from the prosecutor during opening statements and closing arguments; (3) false testimony to the grand jury; (4) error in the denial of his motion for directed verdict; and (5) error in the denial of his post-verdict motion for judgment of acquittal and for a new trial. On July 12, 2010, this Court refused petitioner s direct appeal by order and without argument.2 Thereafter, petitioner filed a motion for reconsideration and an amended petition for direct appeal. On October 13, 2010, this Court entered an order refusing petitioner s motion to reconsider its prior refusal order of July 12, 2010. On May 26, 2011, petitioner filed a petition for a writ of habeas corpus in circuit court in which he raised eight arguments in support of habeas relief: (1) insufficiency of the evidence; (2) withholding of exculpatory evidence; (3) improper comments by the prosecutor regarding the evidence during opening statement and closing argument; (4) false testimony to the grand jury; (5) error in the denial of his motion for a directed verdict; (6) error in the denial of his post-trial motion for acquittal and for a new trial; (7) unfair pre-trial publicity; and (8) the cumulative effect of all errors resulted in a denial of due process. On September 9, 2011, the circuit court entered an order denying the habeas petition without holding an evidentiary hearing. The circuit court found that six of the eight issues petitioner raised in his habeas petition had been previously and finally adjudicated by this Court s July 12, 2010, refusal order. As to the other two arguments, the circuit court denied them as lacking merit or factual support. Petitioner appealed to this Court and the matter was docketed as No. 11-1781. By order entered on January 9, 2013, this Court summarily reversed, in part, and affirmed, in part, the circuit court s September 9, 2011, order. Specifically, this Court found that the circuit court properly denied habeas relief on the ground of unfair pre-trial publicity, but the circuit court erred in its determination that grounds raised in the petition for appeal that was denied under this Court s prior practice need not be addressed in an omnibus habeas corpus proceeding. As a result, this Court remanded the matter to the circuit court for further proceedings. Consistent with this Court s January 9, 2013, order, the circuit court conducted an omnibus hearing on September 19, 2013. Petitioner appeared in person and with counsel. The prosecuting attorney appeared on behalf of respondent. During the hearing, the circuit court heard the arguments of counsel, but no evidence was admitted3 and no witnesses testified. By 2 The circuit court mistakenly refers to this Court s refusal order as a memorandum opinion. 3 During the omnibus hearing, petitioner s counsel submitted a three-ring binder of documents, asserting that the documents contained portions of falsified grand jury testimony. However, as the circuit court noted, petitioner s counsel made no motion to have the documents admitted as evidence; he failed to authenticate the documents; and no witnesses were called to corroborate counsel s assertion that the witnesses lied to the grand jury. The documents, consisting of approximately 980 pages, are included in the appendix for petitioner s present appeal, as Volumes II through V. 2 order entered November 22, 2013, the circuit court addressed the eight arguments presented by petitioner and denied the habeas petition. Petitioner now appeals to this Court. We review an order denying a petition for habeas corpus 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. Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). On appeal, petitioner raises the following general assignment of error: The circuit court erroneously dismissed petitioner s petition for writ of habeas corpus and violated petitioner s constitutional rights guaranteed by the due process clause of the fourteenth amendment of the United States Constitution and under Article III, § 10 and § 14 of the West Virginia Constitution. In support of his appeal, petitioner raises the same arguments raised before the circuit court, except that he does not allege error related to the circuit court s ruling on pre-trial publicity. Our review of the record reflects no error or abuse of discretion by the circuit court. Having reviewed the circuit court s Final Order Denying Petition for Writ of Habeas Corpus, entered on November 22, 2013, we hereby adopt and incorporate the circuit court s wellreasoned findings and conclusions as to the arguments 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. ISSUED: September 19, 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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