Larry Hayes v. Marvin C. Plumley, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Larry Hayes, Petitioner Below, Petitioner FILED September 11, 2015 vs) No. 14-0915 (Kanawha County l4-P-163) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Marvin C. Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Larry Hayes, appearing pro se, appeals the order of the Circuit Court of Kanawha County, entered August 22, 2014, denying his petition for writ of habeas corpus. Respondent Marvin C. Plumley, Warden, Huttonsville Correctional Center, by counsel Laura Young, filed a response, and petitioner filed a reply. The 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. On September 30, 2010, petitioner had sole care of his girlfriend’s daughter, eighteen-month-old B.M., while his girlfriend was at work. As petitioner drove to pick up his girlfriend from work, he called her and said, “Something is wrong with B.M.” When petitioner arrived at his girlfriend’s workplace, the girlfriend pulled B.M. out of her car seat. Blood was coming from B.M.’s nose and mouth, and she was not breathing. Petitioner’s girlfriend began CPR. Firemen arrived and took B.M. to the hospital where she was resuscitated and placed on a ventilator. When it was determined that B.M. had no brain activity, her mother removed B.M. from the ventilator. B.M. died shortly thereafter, on October 3, 2010. Petitioner was indicted in January of 2011 on one count of the death of a child by a parent, guardian, or custodian by abuse in violation of West Virginia Code § 61-8D-2a(a), which provides as follows: If any parent, guardian or custodian shall maliciously and intentionally inflict upon a child under his or her care, custody or control substantial physical pain, illness or any impairment of physical condition by other than accidental means, thereby causing the death of such child, then such parent, guardian or custodian shall be 1 guilty of a felony. The indictment tracked the language of West Virginia Code § 61-8D-2a(a) in that it charged petitioner with “unlawfully, feloniously, maliciously[,] and inflict[ing] upon [B.M.1], substantial physical pain, illness[,] and impairment of physical condition by other than accidental means, and . . . thereby caus[ing] the death of [B.M], in violation [West Virginia Code § 61-8D-2a(a)], against the peace and dignity of the State.” Petitioner’s trial was held in August of 2011. The jury found petitioner guilty of the death of a child by a parent, guardian, or custodian by abuse in violation of West Virginia Code § 61-8D-2a(a). The circuit court sentenced petitioner to a determinate term of forty years in prison, followed by a ten-year term of supervised release. Petitioner appealed his conviction to this Court, resulting in the issuance of a memorandum decision in State v. Hayes, No. 11-1641, 2013 WL 2149870 (W.Va. Supreme Court, May 17, 2013). In his appeal, petitioner made the following assignments of error: (1) the trial court denied petitioner the right to compulsory process when it refused to enforce petitioner’s subpoena of Dr. Allen Mock, West Virginia’s deputy chief medical examiner;2 and (2) the circuit court violated petitioner’s due process right to present a complete defense when it refused to allow his expert, Dr. Thomas Young, to give his opinion regarding Dr. Mock’s testimony and thereby indirectly impeach that testimony. Id. at *3-4. This Court rejected petitioner’s arguments and affirmed his conviction. Id. at *3-5. On April 2, 2014, petitioner filed a petition for writ of habeas corpus raising two grounds of relief. First, petitioner alleged that trial counsel provided ineffective assistance by (a) failing to have a statement petitioner made to the police suppressed; (b) failing to meaningfully cross-examine Dr. Mock; (c) failing to correctly argue a post-trial motion for judgment of acquittal based on insufficiency of evidence. Second, petitioner alleged that appellate counsel failed to raise unspecified issues on direct appeal in Hayes. After requiring a response by respondent warden, the circuit court entered a nineteen page order on August 22, 2014, denying the petition. Petitioner now appeals to this Court. We apply the following standard of review in habeas cases: 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, 418, 633 S.E.2d 771, 772 (2006). 1 Only the initials of the minor victim are used pursuant to Rule 40(e)(1) of the West Virginia Rules of Appellate Procedure. 2 Dr. Mock, who has since become the chief medical examiner, testified as part of the State’s case-in-chief and then was cross-examined by petitioner’s counsel. 2 On appeal, petitioner raises the following issues: (1) the indictment was deficient; (2) trial counsel was ineffective because counsel failed to (a) have a statement petitioner made to the police suppressed; (b) meaningfully cross-examine Dr. Mock due to a lack of an adequate investigation; and (c) correctly argue a post-trial motion for judgment of acquittal based on insufficiency of evidence; (3) appellate counsel was ineffective because of a failure to raise (a) the deficiency of the indictment, and (b) ineffective assistance of trial counsel; and (4) the circuit court erred in denying petitioner’s petition without holding a hearing, appointing counsel, and authorizing an investigator and a medical expert. Respondent warden counters that the circuit court adequately rejected the claims raised by petitioner in his habeas petition in a well-reasoned order, and that the issues petitioner raised only on appeal lack merit. We agree with respondent warden and find that the circuit court’s order adequately rejected those claims raised in the habeas petition; therefore, we address only those errors petitioner first alleged on appeal: (1) the allegedly deficient indictment; (2) appellate counsel’s alleged failure to raise (a) the claim regarding the indictment, and (b) ineffective assistance of trial counsel; and (3) the circuit court’s alleged error in denying petitioner’s petition without holding a hearing, appointing counsel, etc. We reject petitioner’s claim that the indictment was deficient. Based on our review of the indictment, we find that it closely tracks the language of West Virginia Code § 61-8D-2a(a)—the statute under which petitioner was charged—and was, therefore, proper. See Syl. Pt. 3, Pyles v. Boles, 148 W. Va. 465, 135 S.E.2d 692, 694 (1964). Second, regarding the performance of appellate counsel, we note that counsel had no obligation to raise meritless claims. In this case, petitioner’s claim regarding the indictment lacked merit. As explained in the circuit court’s order, petitioner’s claim that trial counsel was ineffective also lacked merit and, therefore, the same would not have been addressed in petitioner’s direct appeal even if it was raised. See Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 762-63, 421 S.E.2d 511, 513-14 (1992) (rarely do we address ineffective assistance claims on direct appeal). Accordingly, petitioner’s claim regarding his appellate counsel’s performance is also without merit. Finally, petitioner argues that the circuit court had a duty to provide whatever facilities and procedures were necessary to afford petitioner an adequate opportunity to demonstrate his entitlement to habeas relief. Respondent warden counters that in Syllabus Point 1 of Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657, 658 (1973), we held as follows: A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court’s satisfaction that the petitioner is entitled to no relief. As reflected by Syllabus Point 10 of Triplett, a habeas proceeding is the proper forum for litigating claims alleging ineffective assistance of counsel; however, such claims need to be litigated only when they have merit. In this case, we find that the circuit court correctly determined that 3 petitioner’s ineffective assistance claims have no merit for reasons given in its order.3 Therefore, we determine that the circuit court properly denied the habeas petition without holding a hearing or granting petitioner’s other requests pursuant to Syllabus Point 1 of Perdue. As to the issues raised in the instant petition, we have reviewed the circuit court’s “Order Denying Petitioner’s Petition for Habeas Corpus,” entered on August 22, 2014, and hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions.4 The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha County and affirm its August 22, 2014, order denying petitioner’s petition for writ of habeas corpus. Affirmed. ISSUED: September 10, 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 For example, while petitioner contends that trial counsel failed to meaningfully cross-examine Dr. Mock, we noted in Hayes that counsel’s cross-examination lasted “an hour and a half” and covered “various issues.” 2013 WL 2149870, at *3. 4 Certain names have been redacted. See fn. 1, supra. 4
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