Henry Jenkins v. David Ballard, Warden ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Henry Jenkins,
Petitioner Below, Petitioner FILED
April 12, 2016
vs) No. 15-0454 (Fayette County 12-C-283) 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 Henry Jenkins, by counsel Lori M. Waller, appeals the Circuit Court of Fayette
County’s February 9, 2015, order denying his petition for writ of habeas corpus. Respondent
David Ballard, Warden, by counsel Jonathan E. Porter, filed a response. Petitioner filed a reply.
On appeal, petitioner argues that the circuit court erred in denying his habeas petition on the
ground of ineffective assistance of 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 felony murder and child neglect resulting in death following a
three-day jury trial in 2010. The circuit court sentenced petitioner to a term of imprisonment of
life with mercy for felony murder and a consecutive term of incarceration of three to fifteen
years for child neglect resulting in death. In 2011, petitioner filed a direct appeal with this Court
arguing that his convictions violated the prohibition against double jeopardy, the State presented
insufficient evidence to sustain a conviction for felony murder, and improper jury instructions.
Petitioner also argued that the circuit court’s decision to suppress his statement only during the
State’s case-in-chief was erroneous and that the circuit court erroneously permitted the admission
of gruesome photographs and character evidence pursuant to Rule 404(b) of the West Virginia
Rules of Evidence. By decision dated June 21, 2012, this Court affirmed petitioner’s convictions.
See State v. Jenkins, 229 W.Va. 415, 729 S.E.2d 250 (2012).
In August of 2014, petitioner, pro se, filed a petition for writ of habeas corpus relief in the
circuit court. Thereafter, petitioner filed an amended petition for writ of habeas corpus relief,
with the advice of counsel, alleging numerous grounds for relief, including multiple allegations
that he received ineffective assistance of trial counsel. After two omnibus evidentiary hearings,
the circuit court denied petitioner post-conviction habeas corpus relief by order entered February
9, 2015. It is from this order that petitioner appeals.
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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).
On appeal, petitioner reasserts the same claims that were rejected by the circuit court.
Petitioner reasserts that his trial counsel was ineffective for failing to 1) subpoena a witness to
authenticate medical records to show that he attended the victim’s regular doctor appointments;
2) subpoena or call a medical expert to testify what effect the victim’s underlying medical
conditions contributed to his death; 3) call character witnesses on his behalf; 4) object to
inappropriate or prejudicial statements by the prosecutor; 5) make continuous objections
throughout the trial and seek appropriate curative instructions; and 6) file a motion for change of
venue due to pretrial publicity. Petitioner also reasserts that his trial counsel was ineffective for
admitting an element of a crime. He again argues that all of these errors constitute cumulative
error warranting reversal of the circuit court’s order.
Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the record submitted on appeal, we find no error or abuse of discretion by the circuit court.
Our review of the record supports the circuit court’s decision to deny petitioner post-conviction
habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the
circuit court’s ninety-four page order includes well-reasoned findings and conclusions as to the
assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the
record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the
circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised
herein and direct the Clerk to attach a copy of the circuit court’s February 9, 2015, “Order
Denying and Dismissing Petition” to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: April 12, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
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Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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