Roger P. v. Pszczolkowski, Superintendent ( 2021 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS
May 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Roger P.,
Petitioner Below, Respondent
vs.) No. 20-0468 (Raleigh County (14-C-1039-B)
Karen Pszczolkowski, Superintendent,
Northern Correctional Facility,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Roger P., by counsel Kyle G. Lusk, Matthew A. Bradford, and Brandon L. Gray,
appeals the Circuit Court of Raleigh County’s June 11, 2020, order denying his second petition for
a writ of habeas corpus. 1 Respondent Karen Pszczolkowski, Superintendent, Northern
Correctional Center, by counsel Lara K. Bissett, filed a response to which petitioner submitted 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 is appropriate under Rule 21 of the Rules of Appellate Procedure.
In May of 2005, petitioner was indicted on eight counts of first-degree sexual assault; four
counts of first-degree sexual abuse; four counts of incest; and four counts of sexual abuse by a
parent, guardian, or custodian. His trial counsel filed motions for discovery and a motion to
suppress; counsel also took steps to obtain a competency and criminal responsibility evaluation. 2
Petitioner was tried before a jury on January 30 and February 2, 2006, and he was convicted of
1
Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved. See In re K.H., 235 W. Va. 254,
773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward
Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
While the order granting the motion for examination is included in the record before this
Court, the parties do not point to the report from that examination in the nearly 1,600-page record.
However, the State represented to the circuit court that the report was unfavorable to petitioner.
1
eleven counts: three counts of first-degree sexual assault; one count of first-degree sexual abuse;
three counts of incest; and four counts of sexual abuse by a parent, guardian, or custodian. Trial
counsel filed post-conviction motions for new trial and judgment of acquittal, but the circuit court
denied those motions. Petitioner was sentenced to a term of incarceration of thirty to seventy years.
Petitioner filed his first petition for a writ of habeas corpus seeking resentencing by the
circuit court so that he could file a direct appeal. The circuit court denied that petition, and
petitioner appealed that denial to this Court in [Roger P.] v. McBride, No. 11-0525, 2012 WL
3055668 (W. Va. Apr. 16, 2012) (memorandum decision) (“Roger P. I”). In that memorandum
decision, this Court reversed the circuit court’s denial of habeas corpus relief, and petitioner was
resentenced pursuant to that decision. Petitioner then filed his direct appeal through appellate
counsel, Charles Catlett and Crystal Walden. See State v. Roger P., No. 12-0792, 2014 WL 620483(W. Va. Feb. 14, 2014) (memorandum decision) (“Roger P. II”). Mr. Catlett was petitioner’s
original appellate counsel; he filed the notice of appeal alleging that the jury instruction at issue
omitted an element of intent and that the circuit court erred by failing to grant petitioner’s motion
to strike a juror for cause. The circuit court found that those strategic decisions are not reviewable
in habeas proceedings pursuant to State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), and State
ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995). Prior to oral argument, Ms.
Walden replaced Mr. Catlett as appellate counsel and argued the case before this Court. Ms.
Walden made a strategic decision to waive the second ground for appeal and presented only the
improper jury instruction argument. This Court affirmed petitioner’s conviction by memorandum
decision in Roger P. II. In that decision, this Court found that the trial court’s instruction was
incorrect but concluded that it was harmless error and petitioner’s conviction was based on
“extensive and overwhelming evidence of petitioner’s commission of sexual acts against his
stepdaughter.”
Petitioner, acting as a self-represented litigant, filed a petition for a writ of habeas corpus
on November 10, 2014, alleging the following: (1) ineffective assistance of trial counsel based on
counsel’s failure to file a motion for mental examination and failure to move for a speedy trial; (2)
ineffective assistance of trial counsel based on counsel’s “failure to be prepared for trial;” and (3)
error with respect to the trial court’s instruction on the issue of intent. By order entered on March
6, 2015, the circuit court denied the first and third grounds, finding that the first was not supported
by the record and this Court had conclusively determined the merits of the third. In that same order,
the court appointed counsel and allowed petitioner to set forth grounds for relief related to the
following: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel
with respect to the trial court’s denial of the final defense motion to continue; and (3) ineffective
assistance of appellate counsel with respect to issues raised in post-trial motions.
Petitioner, through counsel, filed an amended habeas petition on August 25, 2015, setting
forth the grounds for relief allowed by the March 6, 2015, order. The circuit court held a hearing
on the amended habeas petition on November 27, 2017, during which former trial counsel, Hassan
Rasheed, and former appellate counsel, Ms. Walden, testified. In January of 2018, petitioner’s
former trial counsel, Gary Frasher, and former appellate counsel, Mr. Catlett, testified. Mr. Catlett
testified that he concentrated on two issues on appeal as “a matter of strategy . . . if I have one
good issue or two good issues, [I] stick to those, because that forces the Court to address those
issues rather than write an opinion about a third issue and, in passing, say, oh, those other issues
are without merit.” Similarly, Ms. Walden testified regarding her decision to abandon the second
2
ground for appeal, stating there are “some things that are stronger than others and, if you fill your
brief with 14 issues, . . . in my opinion from my experience, that’s a signal to the Court that you
have a weak case and you’re throwing everything against the wall and hoping that something will
catch their attention.” Ms. Walden further testified that it was her strategic decision that the
instructional issue was the stronger issue so she wanted to limit the Court’s discussion to that issue.
Petitioner also submitted a Losh list detailing his acknowledged waiver of claims. 3 The circuit
court deemed petitioner’s claims, aside from ineffective assistance of trial counsel claims, waived
“as there was no direct claim in the [p]etition beyond ineffective assistance of counsel.” Both
petitioner and the State were ordered to submit proposed findings of fact and conclusions of law
to the circuit court.
In its June 11, 2020, order denying petitioner’s instant petition for habeas corpus, the circuit
court found that petitioner could have previously advanced his ineffective assistance of trial
counsel claim but failed to do so. It also concluded that petitioner never offered evidence to rebut
the presumption, under West Virginia Code § 53-4A-1(c), that he intelligently and knowingly
waived this claim. Despite this finding of waiver, the circuit court addressed the substance of
petitioner’s ineffective assistance of counsel claims, beginning by categorizing petitioner’s
assertions as follows: (1) defense counsel had no coherent theory of the case; (2) defense counsel’s
opening statement was completely ineffectual; (3) defense counsel made no effort to impeach the
credibility of any of the State’s witnesses; (4) defense counsel put on no affirmative defense and
called no defense witnesses; and (5) defense counsel’s closing argument all but conceded the
inevitable. As to the sixth ground of his habeas petition, the circuit court found that although “it
appears that [p]etitioner waived any claim on this ground in the First Amended Petition, such claim
nevertheless will be addressed on its merits using the ‘objective standard of reasonableness’
element of the Strickland/Miller test.” 4
The circuit court went on to find that the defense goal at trial was “to either reduce the
severity of the individual charges or to reduce their number by requiring a very specific showing
of when and what occurred with each count of the indictment.” Mr. Frasher testified that
petitioner’s multiple confessions would have been difficult to overcome and that, if the confessions
were believed, it would result in a high probability of conviction on some counts. The circuit court
concluded that defense counsel’s strategy was “objectively reasonable considering the
overwhelming evidence against [p]etitioner.” With regard to petitioner’s contention that counsel’s
opening statement was ineffectual, the circuit court concluded that a review of that statement
demonstrates that it was objectively reasonable and was made in an attempt to encourage the jury
to keep an open mind and consider the testimony with a skeptical eye. In addressing the argument
that trial counsel did not impeach the credibility of the State’s witnesses, the circuit court found
that “the trial record demonstrates that this ground is baseless . . . [because t]rial counsel made a
reasonable cross examination of each and every State witness[, including addressing] biases
against [petitioner], examined motivations regarding the custody of the victim, and analyzed
alleged preconceptions on the part of the investigating officer.”
3
Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
4
Strickland v. Washington, 466 U.S. 668 (1984).
3
With regard to petitioner’s assertion that trial counsel failed to present an affirmative
defense or call witnesses, the circuit court found that “[a] review of the entire record confirms that
the strategic decision to attack specific counts in an attempt to reduce the severity or number of
charges was a reasonable strategy. . . . Accordingly, [petitioner] fails to sustain his burden of
proving that defense counsel’s strategy constituted ineffective assistance of counsel.” Regarding
petitioner’s contention that trial counsel’s closing argument conceded the inevitable, the circuit
court held that
a review of the trial record confirms that this is a narrow and out-of-context view
of the argument. Defense counsel made an argument that matched the defense
strategy, which was to reduce the severity and number of charges. The statement
that [petitioner] now objects to was made in reference to the presumption of
innocence and the idea that, at the time of closing argument, the criminal defendant
is not convicted.
The circuit court went on to find that the closing argument was not unreasonable and did not
“concede the inevitable,” as it was an appropriate reminder to the jury that petitioner was still
presumed innocent. The circuit court further found that trial counsel made objectively reasonable
arguments throughout the trial, including a well-reasoned, factual and legal argument to strike
Juror 1.
The fact that defense counsel’s argument does not prevail does not prove ineffective
assistance of counsel. . . . Even assuming arguendo that the actions of trial counsel
were unreasonable, [petitioner] wholly fails to prove that the absence of such errors
would have resulted in a different trial outcome as required by prong two in
Syllabus point 5 of State v. Miller. Therefore, [petitioner’s] claim that trial counsel
was ineffective fails. 5
In addressing the allegation of ineffective assistance of counsel related to the circuit court’s
denial of the motion to continue, the circuit court found that the denial of the motion to continue
occurred prior to trial and “there was nothing that trial counsel could have done other than preserve
his objection, which was accomplished. [Petitioner] has presented no evidence that, had the trial
been continued, the outcome would have been different.” The circuit court also considered
petitioner’s argument that appellate counsel was ineffective for failing to raise the trial court’s
denial of the motion to continue on appeal. According to the circuit court, Mr. Catlett was the
appellate counsel who made the decision not to raise that issue on appeal, and Mr. Catlett testified
that he made a strategic decision to present a limited number of issues on appeal that he felt
5
Syllabus point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), provides:
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.
4
confident would be successful in order to “restrict” this Court to issues that gave his client the best
chance to succeed. The circuit court determined that petitioner failed to meet his burden of proving
that if appellate counsel had acted differently the appellate result would have been different.
Therefore, the claim that appellate counsel was ineffective for declining to raise the denial of the
motion to continue on appeal must fail.
Petitioner also asserted below that appellate counsel was ineffective with respect to the
waiver and/or abandonment of issues. He contends that his second appellate counsel was
ineffective because she abandoned the ground for appeal that the circuit court erred by denying the
motion to strike a juror for cause. The second claim was the waiver of claims for appeal. Based on
its earlier findings, the circuit court found that the Strickland/Miller test applies to those issues and
petitioner has failed to show that appellate counsel committed an error or that the alleged error
would have resulted in a different outcome on appeal.
Petitioner contends that appellate counsel should have argued that the indictment was
insufficient, the trial court erred in refusing petitioner’s motion for a bill of particulars, and the
trial court erred in admitting Rule 404(b) evidence. 6 The circuit court found, first, that any
appellate claim regarding alleged insufficiency of the indictment would have been barred under
Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure, requiring that any such claim be
raised prior to trial. In addressing the bill of particulars issue, the circuit court found that, as in
State v. Ervin, 238 W. Va. 77, 87, 792 S.E.2d 309, 319 (2016), petitioner presented no evidence
that the State’s failure to provide a bill of particulars deprived him of exculpatory material or
impaired his cross-examination of witnesses. In addition, the State dismissed all of the counts in
the indictment to which petitioner did not confess so petitioner had adequate notice of what
conduct was alleged and failed to show prejudice. With regard to the Rule 404(b) evidence, the
circuit court found that petitioner failed to show that the unspecified “fourth incident” of sexual
molestation was not inextricably intertwined with the sexual atrocities committed by petitioner
against his eight-year-old stepdaughter. The circuit court further found that petitioner failed to
show that he was prejudiced by the young victim’s testimony that kissing and touching occurred
throughout the course of the events charged in the indictment and admitted to by petitioner in his
6
Rule 404(b) of the West Virginia Rules of Evidence provides
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses; Notice Required. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. Any party seeking the admission
of evidence pursuant to this subsection must:
(A) provide reasonable notice of the general nature and the specific and precise
purpose for which the evidence is being offered by the party at trial; and
(B) do so before trial--or during trial if the court, for good cause, excuses lack of
pretrial notice.
5
confession. As this Court previously held, “the extensive and overwhelming evidence of
[petitioner’s] commission of sexual acts against his stepdaughter was the basis for the jury’s
ultimate findings of guilt” in petitioner’s trial. Roger P. II, 2014 WL 620483, at *8. The circuit
court, therefore, concluded that petitioner’s claim that appellate counsel should have argued more
claims on his behalf on direct appeal fails under Strickland. It went on to find that petitioner
“utterly fails to show exactly how in the absence of complained of actions of his several appointed
attorneys, the outcome of trial and appeal would have been different. His claims are wholly
speculative, and speculation ‘does not carry the day in a habeas corpus proceeding . . . .’ State ex
rel. Wensell v. Trent, 218 W. Va. 529, 534, 625 S.E.2d 291, 296 (2005).”
Finally, the circuit court found that, pursuant to Rule 9 of the West Virginia Rules
Governing Post-Conviction Habeas Corpus Proceedings, petitioner had been informed and
understood his obligation to raise all grounds for relief in his omnibus habeas corpus proceedings
and knowingly and intelligently waived all grounds not specifically asserted; that he set forth no
state or federal constitutional grounds for relief; that he has been represented in this proceeding by
competent and effective counsel; and that the result of this proceeding is not a consequence of any
error or ineffective assistance on the part of habeas counsel. The circuit court then dismissed
petitioner’s petition with prejudice. Petitioner appeals from the circuit court’s June 11, 2020, order
denying his second habeas petition.
This Court reviews a circuit court order denying a habeas petition 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).
Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Further, “[a] prior omnibus
habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which
with reasonable diligence could have been known,” but “an applicant may still petition the court
on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus
hearing[.]” Syl. Pt. 4, in part, Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
Additionally, “[o]n an appeal to this Court[,] the appellant bears the burden of showing that there
was error in the proceedings below resulting in the judgment of which he complains, all
presumptions being in favor of the correctness of the proceedings and judgment in and of the trial
court.” Syl. Pt. 1, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004) (quoting Syl. Pt.
2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973)).
On appeal, petitioner asserts six assignments of error. His first two assignments of error
relate to the alleged ineffective assistance of trial counsel, and the next three alleged errors relate
to the alleged ineffective assistance of appellate counsel. Finally, he is critical of the substance of
the circuit court’s order denying the underlying second petition for a writ of habeas corpus.
6
1. Ineffective assistance of trial counsel
First, petitioner contends that the circuit court erred by finding that he waived his
ineffective assistance of counsel claim. In support of this claim, he argues that he “could not have
advanced the ineffective assistance of trial counsel claim [on direct appeal or in his first habeas
proceeding] as [he] did not have the opportunity to raise the claims of ineffective assistance of
counsel through those proceedings.” He bases that argument on the fact that his first petition for
habeas corpus sought re-sentencing in order to file a direct appeal and his direct appeal asserted
juror and jury instruction issues. See Roger P. I and Roger P. II.
In West Virginia, claims of ineffective assistance of counsel are governed by the two-prong
standard set forth in Strickland, 466 U.S. at 669: “(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.”
Miller, 194 W. Va. at 6, 459 S.E.2d at 117, Syl. Pt. 5, in part.
In reviewing counsel’s performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified acts
or omissions were outside the broad range of professionally competent assistance
while at the same time refraining from engaging in hindsight or second-guessing of
trial counsel's strategic decisions. Thus, a reviewing court asks whether a
reasonable lawyer would have acted, under the circumstances, as defense counsel
acted in the case at issue.
Id., Syl. Pt. 6.
“When assessing whether counsel’s performance was deficient, we ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance[.]’” Id. at 15, 459 S.E.2d at 126 (citation omitted). Further, to demonstrate prejudice, “a
defendant must prove there is a ‘reasonable probability’ that, absent the errors, the jury would have
reached a different result.” Id. As a result, petitioner “bears a difficult burden because
constitutionally accepted performance is not defined narrowly and encompasses a ‘wide
range.’” Id. at 16, 459 S.E.2d at 127. Indeed,
[t]he test of ineffectiveness has little or nothing to do with what the best lawyers
would have done. Nor is the test even what most good lawyers would have
done. We only ask whether a reasonable lawyer would have acted, under the
circumstances, as defense counsel acted in the case at issue. We are not interested
in grading lawyers’ performances; we are interested in whether the adversarial
process at the time, in fact, worked adequately.
Id. Consequently, “the cases in which a defendant may prevail on the ground of ineffective
assistance of counsel are few and far between one another.” Id. Further, “[i]n deciding ineffective
assistance of counsel claims, a court need not address both prongs of the conjunctive standard
of Strickland v. Washington . . . and State v. Miller, . . . but may dispose of such a claim based
solely on a petitioner's failure to meet either prong of the test.” Daniel, 195 W. Va. at 317, 465
7
S.E.2d at 419, Syl. Pt. 5, in part. Finally, as set forth above, “[a] prior omnibus habeas corpus
hearing is res judicata as to all matters raised and as to all matters known or which with reasonable
diligence could have been known . . . .” Losh, 166 W. Va. at 762, 277 S.E.2d at 608, Syl. Pt. 4, in
part.
At the outset, we note that the only authority cited by petitioner in support of his waiver
argument, aside from Roger P. I and Roger P. II, is our oft-repeated finding that
“[i]t is the extremely rare case when this Court will find ineffective
assistance of counsel when such a charge is raised as an assignment of error on a
direct appeal. 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, State v. Triplett, 187 W.Va. 760, 421
S.E.2d 511 (1992).
Syl. Pt. 13, State v. Jessie, 225 W. Va. 21, 689 S.E.2d 21 (2009). He does not cite a single case, in
his petition or reply, in support of his contention that he could not assert ineffective assistance of
counsel in his first habeas petition. Because petitioner bears the burden of showing error in the
proceedings below, and in considering Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure, we find that petitioner has failed to show that the circuit court erred in concluding that
he waived his ineffective assistance of counsel claim by failing to raise it in his prior habeas
proceeding. 7
Petitioner next asserts that the circuit court erred by finding that he did not receive
ineffective assistance of trial counsel. He contends that in his amended petition he asserted that
trial counsel’s performance was “deficient under an objective standard of reasonableness” and that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Without identifying specific pages of the record,
petitioner asserts that “[b]ased upon a review of the trial transcript and evidence received” the
circuit court erred by finding that petitioner did not receive ineffective assistance of trial counsel
“as the record shows that the result of the proceedings could have been different had trial counsel
acted in a different manner.” Petitioner is critical of Mr. Rasheed’s failure to move to dismiss when
he was incarcerated for over two terms without being indicted, despite the fact that petitioner was
incarcerated on an unrelated charge during that time. Petitioner asserts that due to Mr. Rasheed’s
7
Rule 10(c)(7) provides:
The brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on,
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
8
mismanagement of the case, Mr. Frasher was not afforded adequate time to prepare a defense on
petitioner’s behalf. Petitioner quotes three sentences from the transcript, wherein his trial counsel
told the jury that petitioner is “still innocent right now. That does not change until after you go
into the jury room and you make a decision. It may change, but not until then[.]”
Petitioner argues that a review of the trial transcript demonstrates the following: (1) trial
counsel had no coherent theory of the case; (2) trial counsel did not make good legal arguments to
the circuit court; (3) trial counsel’s opening statement was completely ineffectual; (4) trial counsel
made no effort to impeach the credibility of any of the State’s witnesses; (5) trial counsel presented
no affirmative defense and called no defense witnesses; and (6) trial counsel’s closing argument
all but conceded the inevitable. Petitioner argues that due to these issues, combined with counsel’s
inadequate time to prepare for the trial, it is apparent that he received ineffective assistance of trial
counsel. Finally, he contends that the evidence supported a showing of actual prejudice to
petitioner through the circuit court’s denial of the motion for a continuance, he made a showing of
prejudice in his first amended petition and the testimony presented, and the evidence showed that
Mr. Rasheed’s inactivity contributed to subsequent counsel’s inability to prepare an adequate
defense in the limited time allotted.
Despite its finding of waiver, the circuit court addressed the merits of petitioner’s
ineffective assistance of counsel claim, finding that petitioner failed to show that he received
ineffective assistance. Upon our review of petitioner’s argument and the record before this Court,
we find that petitioner has not satisfied his burden of meeting either prong of the Strickland/Miller
test. As respondent points out, although petitioner asserts that Mr. Rasheed was ineffective in that
he moved slowly in taking any action in petitioner’s case, he does not argue that Mr. Rasheed
failed to act in any particular way that would have amounted to deficient legal representation.
While he contends that Mr. Rasheed failed to move to dismiss his charges based on the fact that
petitioner had been incarcerated for over two terms of court prior to being indicted, he admits that
he was incarcerated on another conviction at that time. West Virginia Code § 62-2-12 provides
that “[a] person in jail, on a criminal charge, shall be discharged from imprisonment if he be not
indicted before the end of the second term of the court . . . .” Petitioner was not then incarcerated
on the underlying charges in this matter so § 62-2-12 was inapplicable. Therefore, Mr. Rasheed
was not deficient in failing to file such motion where it was clear that petitioner was not eligible
for relief. Aside from that unsupported assertion, petitioner cites to nothing in the record and no
legal authority that impugns Mr. Rasheed’s performance. To the contrary, petitioner admits that
Mr. Rasheed filed motions to continue the trial, motions to suppress, motions for additional
discovery, and a motion for a psychiatric evaluation.
Further, we agree with respondent that Mr. Frasher did not implicate Mr. Rasheed’s
performance as the reason that he was not prepared to go to trial when he asked for a continuance
in January of 2006. Instead, Mr. Frasher pointed to the number of court appearances he had made
since January 3, in addition to
juvenile days and mental health – mental hygiene proceedings that I’ve represented
persons on . . . I was extensively involved . . . with three juvenile cases who’ve had
what I would term ‘emergency situations,’ that needed to be dealt with. . . . So
effectively, I got this case late last week, Monday this week and have put in many
9
hours to try to bring this case forward and go forward. But I don’t think it’s fair to
the defendant to send him to trial to give him what’s supposed to be a fair trial
without giving him adequate opportunity for the defense counsel to be ready to go
forward.
In addition, as the circuit court found, most of petitioner’s allegations involve strategic
decisions, which, with very limited exceptions, fall outside the scope of this inquiry and cannot
form the basis of an ineffective assistance claim. Daniel, 195 W. Va. at 328, 465 S.E.2d at 430.
Further, this Court has found that “[w]here a counsel’s performance, attacked as ineffective, arises
from occurrences involving strategy, tactics, and arguable courses of action, his conduct will be
deemed effectively assistive of his client’s interests, unless no reasonably qualified defense
attorney would have so acted in the defense of an accused.” Syl. Pt. 12, State v. Kilmer, 190 W.
Va. 617, 439 S.E.2d 881 (1993) (citation omitted). Petitioner has not made such a showing here;
he has failed to establish that the performance of either Mr. Rasheed or Mr. Frasher was so
deficient that it was “outside the broad range of professionally competent assistance.” Because he
fails to meet the first prong of the Strickland/Miller test, his claim fails. Even assuming, arguendo,
that trial counsels’ conduct was objectively unreasonable, such conduct does not constitute
ineffective assistance unless it can also be established that the conduct had such impact that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. Petitioner fails to meet this burden.
2. Ineffective assistance of appellate counsel
In his third assignment of error, petitioner asserts that his appellate counsel provided
ineffective assistance of counsel because she abandoned the ground for appeal regarding the denial
of the motion to strike a juror for cause. Petitioner argues that at the time of his trial and appeal,
under Syllabus Point 8 of State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995), 8 because the
trial court erred in refusing his challenge for cause to a juror and he was forced to use a peremptory
strike, he is entitled to a new trial. Without citing any supporting law, petitioner asserts that
at the time appellate counsel withdrew the juror issue, the prejudice standard was
not the standard as the prejudice standard could not be applied to [p]etitioner’s case
as it would violate the Ex Post Facto Clause, and appellate counsel’s withdrawal of
8
As this Court previously held, and petitioner recognizes, that syllabus point has been
expressly overruled:
A trial court’s failure to remove a biased juror from a jury panel, as required
by W. Va. Code § 62-3-3 (1949) (Repl.Vol.2010), does not violate a criminal
defendant's right to a trial by an impartial jury if the defendant removes the juror
with a peremptory strike. In order to obtain a new trial for having used a peremptory
strike to remove a biased juror from a jury panel, a criminal defendant must show
prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W. Va. 569, 461
S.E.2d 75 (1995), is expressly overruled.
Syl. Pt. 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013).
10
that issue prior to oral argument was clearly ineffective assistance of counsel.
Petitioner admits that Ms. Walden testified that she withdrew the issue because, after
conducting further research, she did not believe that she would be able to show that petitioner was
prejudiced. Generically referring to the “trial transcript,” petitioner asserts that the transcript shows
that petitioner had a legitimate argument as to the denial of trial counsel’s motion to strike Jurors
1 and 2 for cause but that Ms. Walden withdrew that issue due to her mistaken belief that the
standard at the time was whether you could prove prejudice. He also asserts ineffective assistance
with regard to Juror 2, who disclosed that her granddaughter had been touched inappropriately by
her mother’s boyfriend, though the case filed against that boyfriend was dismissed. When asked
whether she had experienced “some turmoil or dissatisfaction over that,” Juror 2 responded in the
affirmative. However, when asked whether that situation would cause her any difficulty in serving
as a juror in petitioner’s case, she responded, “I don’t think so.” Petitioner asserts that the circuit
court erred in denying trial counsel’s motion to strike Juror 2 for cause and appellate counsel was
ineffective for not pursuing that issue on appeal. Juror 1 was a career law enforcement officer,
working as a deputy sheriff and then an employee of the Bureau of Prisons. He was also a special
investigator for the Department of Justice handling sexual assault cases. Further, he was personally
acquainted with Corporal S. Ellison, a State witness against petitioner who sat at counsel table
throughout the trial. Like with Juror 2, petitioner argues that the trial court erred in denying trial
counsel’s motion to strike Juror 1 for cause and that appellate counsel was ineffective in not
pursuing that issue on appeal. Without citing any law, petitioner contends that although there is no
per se rule of disqualification for law enforcement officers in criminal cases, the facts and
circumstances demonstrated that the trial court erred in denying trial counsel’s motion to strike
Juror 1 for cause.
In Phillips, this Court recognized that because determinations of impartiality, in which
demeanor plays such an important part, are within the province of the trial judge, an appellate court
should not disturb a trial court’s decision to deny challenges for cause without a showing of abuse
of discretion or manifest error. Id. at 588, 461 S.E.2d at 94. In addition, “[t]he true test of whether
a juror is qualified to serve on the panel is whether he or she can render a verdict solely on the
evidence without bias or prejudice under the instructions of the court.” Id. (quoting State v. White,
171 W. Va. 658, 301 S.E.2d 615 (1983)). When a defendant seeks to disqualify a juror, he/she
bears the burden of rebutting the presumption of a prospective juror’s impartiality. Phillips at 588,
461 S.E.2d at 95 (quoting Irvin v. Dowd, 366 U.S. 717 (1961)).
Juror 2 explained to the trial court that her granddaughter had reported to CPS in Virginia
that her mother’s boyfriend had touched her inappropriately. She said that she experienced “some
turmoil” over the fact that nothing came from the investigation, but she agreed that she could
“listen carefully to the evidence and base [her] decision squarely on the evidence presented before
[her]” during trial. Trial counsel did not follow up with Juror 2 on that issue, but he did move to
strike her as a juror. Juror 1 explained to the trial court that his contact with the investigating officer
was limited to helping him, on one occasion, execute an arrest warrant on a visitor (presumably to
the prison where he worked as a corrections officer). When asked by the trial court whether he
could sit comfortably as a juror in this case despite his law enforcement background, Juror 1
responded in the affirmative, volunteering that he “wouldn’t have a problem with that.” He agreed
that he could “put aside [his] association with police officers, [his] involvement in the [Fraternal
11
Order of Police] and [his] present job and listen carefully to the evidence rendering a fair and
impartial decision based squarely on the evidence.” When petitioner’s trial counsel moved to strike
him on the basis of his law enforcement experience and association with the investigating officer,
the court denied the motion, finding that Juror 1’s background as a federal corrections officer and
work in law enforcement was not a per se disqualification. Under these facts, petitioner has failed
to show that appellate counsel was ineffective in failing to raise this issue, as she made a strategic
decision to move forward with what she believed, based on her knowledge and experience, was
the strongest ground for appeal. Both potential jurors confirmed that they could render a verdict
solely on the evidence without bias or prejudice under the instructions of the court so we find that
appellate counsel’s decision was a reasonable strategic decision. Therefore, the circuit court did
not err in finding that petitioner was not entitled to relief on this ground.
His fourth assignment of error is his contention that the circuit court erred when it found
that petitioner did not receive ineffective assistance of appellate counsel when appellate counsel
declined to raise the issue of trial court’s denial of the motion to continue on appeal. Initially, we
note that he failed to cite to the record in support of any of his assertions, in violation of Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure. Without citing to the record, he
contends it is clear from the record that appellate counsel performed an inadequate investigation
in failing to pursue the issue of the trial court’s denial of the motion to continue, as the denial of
that motion “fatally infected the case.” Without citing authority, petitioner argues that if appellate
counsel had pursued that issue on appeal, this Court would have had the opportunity to determine
whether the trial court erred by denying the motion under the circumstances then present, with
specific attention to the late appointment of petitioner’s trial counsel following the removal of
previous counsel “upon a claim that previous counsel had inadequately prepared for trial.”
Respondent asserts that petitioner makes “quite a leap in concluding that this Court’s
decision in his direct appeal would have been different had it known that Mr. Frasher did not have
time to prepare for trial.” She contends that the likelihood of a different outcome in his appeal is
neither substantial nor even conceivable. Respondent further asserts that no amount of trial
preparation time would have changed what this Court found to be the “overwhelming evidence
presented against petitioner” at trial, which included “extensive evidence of petitioner’s
commission of the sexual acts upon his stepdaughter, including his own confession[s] that he
committed the acts” to multiple people; petitioner’s admission that he “guess[ed he had] sexual
feelings by doing that;” and the compelling testimony of the child victim. Roger P. II, 2014 WL
620483, at *5.
“The granting or denial of a motion for a bill of particulars . . . rests in the
sound discretion of the trial court, and unless it appears that such discretion is
abused the ruling of the trial court will not be disturbed.” Syllabus Point 7, in
part, State v. Nuckols, 152 W.Va. 736, 166 S.E.2d 3 (1969).
Syl. Pt. 2, State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982). This Court has also noted
that when the charges in an indictment are described with sufficient particularity to inform a
defendant fully and plainly of the character and the cause of the accusation, no bill of particulars is
necessary. See State v. Hudson, 128 W. Va. 655, 661, 37 S.E.2d 553, 557 (1946). Further, “[a]n
indictment for a statutory offense is sufficient if, in charging the offense, it adopts and follows the
12
language of the statute, or uses substantially equivalent language, and plainly informs the accused
of the particular offense charged and enables the court to determine the statute on which the charge
is founded.” Syl. Pt. 3, State v. Slie, 158 W. Va. 672, 213 S.E.2d 109 (1975) (quoting Syl. Pt.
3, Pyles v. Boles, 148 W. Va. 465, 135 S.E.2d 692 (1964)). Again, based upon appellate counsel’s
knowledge and experience, we find that the circuit court did not err in denying petitioner’s petition
for habeas relief based upon counsel’s strategic decision not to assert this ground on appeal.
Further, in his fifth assignment of error, petitioner claims that the circuit court erred when
it denied petitioner habeas relief on his claim that appellate counsel should have raised the issues
that the indictment was insufficient, that the trial court erred in refusing petitioner’s motion for a
bill of particulars, and that the trial court erred in admitting Rule 404(b) evidence. See West
Virginia Rule of Evidence 404(b). In support of these assertions, petitioner cites to the record only
twice. Thus, the vast majority of his factual assertions in this section do not include references to
the record, continuing to violate Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure.
Without identifying specific pages in the record, petitioner asserts that “[b]ased upon the evidence
and testimony received,” the circuit court erred by denying petitioner habeas relief based on
appellate counsel’s failure to raise these issues. Petitioner repeatedly refers to the “record and
testimony received” without sufficient specificity, including for the assertion that the record shows
that petitioner made a showing of prejudice in this action. He refers to a “birthday incident” and
an uncharged “fourth incident” without providing adequate information to identify those incidents.
Petitioner also mentions conflicting evidence related to those incidents without referring to the
record. His reference to the record addressing the “birthday incident” is for his assertion that the
victim denied penetration, instead stating that there was “only fondling and French kissing.” 9
According to petitioner, if appellate counsel had raised those issues on appeal, the outcome of the
proceedings would have been different. He further asserts that the State’s reference to an additional
incident was highly prejudicial and left him defending against four alleged incidents, including
one unindicted incident. However, petitioner’s vague arguments and lack of citations to the record
make it impossible for this Court to fully address these contentions. Therefore, we decline to
attempt to do so.
3. Sufficiency of the circuit court’s habeas order
Finally, petitioner argues that the circuit court erred when it failed to make its own findings
of fact and conclusions of law with regard to each ground for relief raised in petitioner’s first
amended petition for writ of habeas corpus and its order was insufficient to permit meaningful
appellate review. Petitioner asserts that the circuit court failed to comply with Rule 4(c) of the
West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings 10 and West Virginia
9
Petitioner refers to page 644 of the record for this assertion. However, neither page 644
of the record nor page 644 of the trial transcript include the quoted testimony from the victim.
10
Rule 4(c) provides, in pertinent part, as follows:
(Continued . . .)
13
Code § 53-4A-7(c) 11 by setting forth inadequate findings of fact and conclusions of law justifying
its denial of petitioner’s amended petition for a writ of habeas corpus. He complains that the order
was drafted by the State, rather than the circuit court. However, upon our review of that twenty-
one-page order, we find that the circuit court set forth sufficient findings of facts and conclusions
of law. We also note that, in his brief, petitioner does not identify any specific alleged error or
omission in the circuit court’s findings of fact or conclusions of law. This Court has previously
found that “[a]s an appellate court, we concern ourselves not with who prepared the findings for
the circuit court, but with whether the findings adopted by the circuit court accurately reflect the
existing law and the trial record.” State ex rel. Cooper v. Caperton, 196 W. Va. 208, 214, 470
S.E.2d 162, 168 (1996); see South Side Lumber Co. v. Stone Const. Co., 151 W. Va. 439, 442, 152
S.E.2d 721, 723 (1967) (finding that the adoption of proposed findings of fact “operated to make
such findings the formal findings of the court”). Therefore, we reject this argument as being
without merit.
Affirmed.
ISSUED: May 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
The petition shall be examined promptly by the judge to whom it is assigned. The
court shall prepare and enter an order for summary dismissal of the petition if the
contentions in fact or law relied upon in the petition have been previously and
finally adjudicated or waived. The court's summary dismissal order shall contain
specific findings of fact and conclusions of law as to the manner in which each
ground raised in the petition has been previously and finally adjudicated and/or
waived.
11
West Virginia Code § 53-4A-7(c), provides, in part:
When the court determines to deny or grant relief, as the case may be, the court
shall enter an appropriate order with respect to the conviction or sentence in the
former criminal proceedings and such supplementary matters as are deemed
necessary and proper to the findings in the case . . . In any order entered in
accordance with the provisions of this section, the court shall make specific findings
of fact and conclusions of law relating to each contention or contentions and
grounds (in fact or law) advanced, shall clearly state the grounds upon which the
matter was determined, and shall state whether a federal and/or state right was
presented and decided.
14