Don G. Galloway v. David Ballard, Warden ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Don G. Galloway,
Petitioner Below, Petitioner FILED
September 19, 2016
vs) No. 15-1005 (Summers County 12-C-01) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
David Ballard, Warden,
Mount Olive Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Don G. Galloway, by counsel Paul R. Cassell, appeals the Circuit Court of
Mercer County’s September 18, 2015, order denying his petition for writ of habeas corpus. The
State, by counsel Benjamin F. Yancey III, filed a response in support of the circuit court’s order.
Petitioner filed a reply and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in denying habeas relief because his trial counsel was constitutionally ineffective, his
sentence was disproportionate, and there was cumulative error.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
In July of 2008, a Summers County grand jury indicted petitioner on two counts of
possession with intent to deliver, one count of intimidation of and retaliation against a public
officer, three counts of battery on a police officer, and one count of obstructing an officer.
Petitioner, by counsel Jason Parmer, filed a motion to suppress the evidence seized by a search
warrant on the grounds that the search warrant affidavit was “bare bones, conclusory, and
contains false information offered by Deputy James A. Chellis in intentional or reckless
disregard of the truth.” Following a hearing on petitioner’s motion to suppress seized evidence,
the circuit court denied his motion finding that the search warrant did not contain false
information and contained sufficient information to establish probable cause to search
petitioner’s residence. Thereafter, the circuit court permitted Mr. Parmer to withdraw as counsel,
and appointed attorney Jason Grubb the following month to represent petitioner.
1
Following a jury trial, petitioner was convicted of one count of possession of a controlled
substance with intent to deliver.1 A recidivist information was filed stating that petitioner had
previously been convicted of voluntary manslaughter, possession of a controlled substance with
intent to deliver, and third degree sexual assault. On February 24, 2010, the circuit court
sentenced petitioner to life as a habitual offender.
In September of 2010, Petitioner filed a direct appeal with this Court alleging that Deputy
Chellis did not present sufficient evidence within the affidavit or the search warrant itself to
establish probable cause thereby making the search of defendant’s home illegal and requiring the
suppression of all evidence seized as the search violated the Fourth Amendment to the United
States Constitution and Article III, Section 6, of the West Virginia Constitution. By ordered
entered March 11, 2011, this Court affirmed petitioner’s conviction. See State v. Galloway, No.
101185 (W.Va. Mar. 11, 2011)(memorandum decision).2
Several years later, petitioner, pro se, filed a motion for a new trial based upon newly­
discovered evidence that Juror Andy Ward withheld personal knowledge of the case and
committed misconduct by withholding the fact that he had a prior conflict with petitioner
following an incident in which Juror Ward and petitioner were using drugs. Ultimately, the
circuit court denied petitioner’s motion. In 2014, petitioner filed a petition for writ of habeas
corpus alleging that he received ineffective assistance of counsel, received a disproportionate
sentence, and there was cumulative error. Following an omnibus evidentiary hearing, the circuit
court entered an order denying petitioner’s petition for writ of habeas corpus. This appeal
follows.
This Court reviews a circuit court order 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 argues that the circuit court erred in denying habeas relief based on
his claim that his trial counsel was constitutionally ineffective, his sentence was disproportionate,
and cumulative error.
1
Prior to trial, Mr. Grubb filed a motion to sever the possession with intent to deliver
charges from the remaining counts in the indictment. Ultimately, the circuit court granted
petitioner’s motion to sever only the charge of intimidation/retaliation against a public officer.
2
This Court refused petitioner’s petition for rehearing. Thereafter, the Supreme Court of
the United States denied petitioner’s petition for a writ of certiorari.
2
Our review of the record supports the circuit court’s decision to deny petitioner post­
conviction habeas corpus relief based on errors alleged in this appeal, which were also argued
below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the
assignment of error raised on appeal. Furthermore, petitioner argues that cumulative error in the
proceedings below violated his right to due process of law. See Syl. Pt. 5, State v. Smith, 156
W.Va. 385, 193 S.E.2d 550 (1972) (holding that “[w]here the record of a criminal trial shows
that the cumulative effect of numerous errors committed during the trial prevented the defendant
from receiving a fair trial, his conviction should be set aside, even though any one of such errors
standing alone would be harmless error.”). In light of our rulings on petitioner’s other grounds
for relief, petitioner’s final assignment of error must fail. We have not found numerous errors in
the record before us. As such, we reject petitioner’s argument under the cumulative error
doctrine. 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 assignment of error raised herein and direct the
Clerk to attach a copy of the circuit court’s September 18, 2015, “Order Denying Writ of Habeas
Corpus” to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 19, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Justice Brent D. Benjamin
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STATE OF WEST VIRGINIA EX REL,
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DON G. GALLOWAY, `` 3: l'l
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v. CIVIL ACllON NO.: 12-C-Ol -,
DAVID BALLARD, WARDEN,
MOUNT OLIVE CORRECllONAL CENTER,
Respondent. SEn: 2315
ORDER DENYING WRIT m~HABEAS CORPUS
On a prior day, the Petitioner, Don G. Galloway, filed apro sepetition for a Writ of Habeas
Corpus under West Virginia Code §53-4A-I, and supporting documeots with the Clerk; of this Court.
On May 1, 2014, the Petitioner filed an ameoded Petition for a Writ of Habeas Corpus.
) The Court condocted an omnibus hearing on this Petition on August 14, 2015, with the
Petitioner appearing in person and by counsel, Paul Cassell, Esq., and the Respondeot appeared by
the Prosecuting Attorney of Summers County, Arr;y Mann, and the Assistant Prosecuting A ttomey of
Summers County, Kristin R. Cook After having considered the petition, the supporting documents,
and the arguments of counsel, and having consulted the appropriate legal authorities, the Court
DENIES the Petition for a Writ of Habeas Corpus.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial
The Petitioner was indicted on July 15, 2008, for two counts ofpossession of a controlled
substance with intent to distribute, one count of intimidation of and retaliation against public officers,
three counts of battery on a police officer, and one count of obstructing an officer. The underlying
charges arose from a search of the Petitioner's residence at 140 Railroad Avenue, Hinton, WV. The
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Petitioner was found in a bedroom with an individual named Stepharrie Ratliff When arrested, the
officers found a bottle of Oxycontin in the Defendant's hand, and an unlabeled bottle ofXanax in a
drawer in the bedroom, and a large sum of money. Further, the Defendant was involved in an
altercation with the police, which served as the basis for the charges of intimidation of and retaliation
against a public officer, battery on a police officer, and obstructing.
Throughout the course ofthe proceedings, the Petitioner was unsatisfied with his counsel and
requested new counsel at multiples points during the case. For a portion ofhis pretrial litigation, the
Petitioner was represented by Jason D. Parmer. Mr. Parmer identified possible issues with the search
warrant and made a motion to suppress the evidence seized from the search. On January 30,2009,
the COUlt held a hearing on the motion to suppress and Mr. Parmer identified inconsisten?ies and
argued that the confidential informants were unreliable, rendering the affidavit insufficient to support
) issuance of a search warrant Ultimately, the Court ruled against the Petitioner, and held that the
affidavit was sufficient to support issuance oftb.e search warrant.
Pursuant to a request by the Petitioner for the appointment of a differ,ent attorney, the Court
released Jason Parmer as counsel, and appointed Mr. Jason Grubb as counsel ofrecord. Mr. Grubb
represented the Petitioner from this point on.
At the time Ivfr. Grubb was appointed, most of the pretrial motions had been heard and
decided. Mr. Grubb testified at the oIlll1ibus hearing that he reviewed the work performed up to his
appointment, determined that it was sound work, and did not see any strategy in asking the Court to
reconsider motions which had already been ruled on. Specifically with regard to the motion to
exclude the search, Mr. Grubb f"Qund that the COUlt had made up its mind on the matter, and accepted
that the evidenee would be admitted.
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Moving forward with lhe case as he received it, :Mr. Grubb determined lhat the best strategy
was to attack lhe credibility oflhe search warrant and the.seizure ofthe evidence, and to defend lhe
case under that strategy. Mr. Grubb stated that he believed that it was a very effective strategy, and
lhought it worked well
B. Trial
Thc first issue complained of at trial occurred during voir dire. The Court asked lhe jury if
anyone knew the Petitioner, lhenDefendant, lhough any social or business contact Juror Andy Ward
did not indicate that he knew lhe Petitioner in any way. There is some inconsistency between lhe
Petitioner and his trial cmmsel as to what happened next The Petitioner asserts in his pleadings lhat
he told his attorney, he might have known Juror Ward.:Mr. Grubb, trial counsel, testified at lhe
onmibus hearing lhat the Petitioner never told him that he knew Juror Ward. Defendant fuiled to
) testify or offer any evidence to refute Mr. Grubb's testimony during the onmibus hearing.
Petitioner's counsel pursued a trial strategy which highlighted the inconsistencies in the
search warrant to undermine the State's case, and asserted that the Xanax seized as a result of the
search belonged to Stephanie Ratliff. Ms. Ratliff was called as a witness by the Petitioner, and she
testified that the pills belonged to her. On cross-examination, M~. Ratliff admitted that she did not
remove the label from lhe seized bottle, and lhat she never removed the Xanax bottle from her purse
and placed it in lhe drawer. Trial Counsel did not enter Ms. Ratliff's prescription into evidence. At
the onmibus hearing, trial counsel testified that he diligently attempted to acquire lhe prescription,
bot ultimately was unable to do so.
During trial, the Defendant waived his Fifth Amendment right to remain silent and testified
that he removed the Xanax from Ms. Ratliff's purse and he intended to share it between a friend and
himself, but not to sell it He further testified that the money seized was not earned through drug
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activity, but rather through work income, gambling, and a tax return. On cross-examination, the
Prosecution asked the Petitioner whether he could provide his tax return or any other-paperwork
which would substantiate his claims.
The final issue in this case involves the recidivist charge. In 2004 the Petitioner was
convicted ofa manslaughter committed in 1988. Between 1988 and 2004, the Petitioner committed
and was convicted oftwo additional charges: third degree sexoal assault in 1995, and possession of a
controlled substance, with intent to distribute, in 2000.
ill connection with this case, the Petitioner's counsel argued that the Petitioner's 2004
manslaughter conviction is inapplicable under the recidivism statute, because although it was the
Petitioner's last conviction, the Petitioner had not been convicted ofmanslaughter before he had
committed and been convicted ofthe other two charges. Ultimately, the Court rejected that theory
) and p=itted all three prior convictious to be used in the recidivism charge.
ill the most recent case, Criminal Case No. 08-F-35, Petitioner was found guilty of one count
ofpossession of a controlled substance, XaIlllX, with the intent to distribute. After the conviction, the
State filed an information charging the Petitioner with being a recidivist, pursuant to WVC § 61-11­
18. The Petitioner was adjudicated to be a recidivist; and sentenced to life imprisonment. This matter
is now bcforethe Court on the Petitioner's Petition for Habeas Corpus.
LAW
A. Habeas Corpus
Any person convicted of a crime and incarcerated who contends that such denial infringes his
rightq as to render the convietion or sentence void under the Constitution may file a petition fur the
writ of habeas corpus see1cing for release from such illegal confinement; or correction of sentence.
W. Va. Code § 53-4A-l et seq. A writ of habeas corpus is available if and only ifthe contention has
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not been previously and finally adjudicated or waived in the proceedings which resulted in the
conviction and sentence or in any other proceeding which the petitioner has institoted to secure relief
from such conviction or sentence. Id. Where a petitioner alleges but fails to prove be is being
illegally held, relief should be denied. Syl. pt. 1, Echard v. Holland, 177 W. Va. 138,351 S.E.2d 51(1996).
B. Ineffective Assistance of Counsel
Both the United States Constitution and the West Virginia COl1Btitotion guarantee the Right
to ('-Ounse!. U.S. Const. amend. VI; W. Va. Canst. art. ill, § 14. West Virginia applies the two-prong
test for ineffuctive assistance of counsel established by the United States Supreme Court in
Stricldand v. Washington, 466 U.S. 668 (1984). Sy1. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d
114 (1995). Finrt, counsel's perfOlmance must be deficient under an objective standard of
) reasonableness; and second, "there is a reasonable probability that, butfor counsel's unprofessional
errors, the result of the proceedings wonldhave been different." Strickland. A reasonable probability
is "a probability sufficient to lnldermine confidence in the outcome." Stricldand at 694.
C. Cruel and Unusual PunisIunent
Both the state and federal constitutiol1B prohibit sentences which are disproportionate to the
crime committed. See State v. Richardson, 214 W. Va. 410, 413, 589 S.E.2d 552,555 (2003). The
Court applies a two stage analysis to determine whether a sentence is disproportionate: a subjective
test and a balancing test. First, under the subjective test, "[p]uni'lhment may be constitutionally
impennissible ... ifit is so disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notiol1B ofbuman dignity." Syl. pt. 5 State v. Cooper, 172 W.
Va. 266, 304 S.E2d 851 (1983).lfthe punishment is not disproportionate under the subjective test,
the court must consider the balancing test. Under the balancing test, the Court mnst weigh various
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factors including the age ofthe defendant, prior record of the defendant, rehabilitative potential
(including post arrest conducl, age and maturity), statements ofthe victim, evaluations made in
anticipation of sentencing, and remorse ofthe defendant. ld. at 271-72, 856; see also sy1. pt. 6, State
v. Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009). When reviewing a lire recidivist sentence for
proportionality, the sentence must be evaluated under two viewpoin1s:
first, th.e nature of the third offeI1.<;C and, second, the nature of the
other convictions that support the recidivist sentence .... We do not
believe that the sole emphasis can be placed on the character of
the final felony which triggers the life recidivist sentence since a
recidivist statute is also designed to enhance the penalty for persons
with repeated felony convictions, i.e., the habitoal offenders.
However; for th.e purposes of proportionality, the third felony is
entitled to more scrutiny th.an the preceding felony convictions since
it provides th.e ultimate nexus to th.e sentence."
Wamstreet v. Bordenkircher, 166 W. Va. 523,533-34,276 S.E.2d 205,212 (1981) (emphasis
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added).
D. Cumulative F...rror
When th.e Court finds harmless error, "[tJhe cumulative effect of two or more individually
harmless errors has th.e potential to prejudice a defendant to the same extent as a single reversible
error." United State v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990); see also United States v.
Martinez, 277 F.3d 517,532 (4th. CiT. 2002). The West Virginia Supreme Court ofAppeals has
similarly held that "[wJhere the record of a eriminal trial shows that the cumulative effect of
numerous errors committed during the trial prevented the defendant from receiving a fair trial, his
conviction should be set aside, even th.ough aoy one of such errors standing alone would be harmless
error." Syl. Pt. 5, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972).
ANALYSIS
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In his Petition, the Petitioner has four essential claims.: ineffective assistance of counsel,
cruel and unusual punisbment, cumulative error, and all additional Lash list claims.
A. The Petitioner's representation does not evidence ineffective assistanee of counsel.
Within his ineffective assistance counsel claim, the Petitioner asserts that his representation
was deficient for five reasons: first, counsel :fuiled to properly investigate and undennine the
inadequate search warrant; second, counsel falled to properly address the Xanax charge; third,
counsel ineffectively exercised vair dire and thereby denied the Petitioner his Due Process rights
with regard to Juror Ward; fourth, counsel improperly permitted the prosecutor to shift the burden of
proof; and fifth, counsel was ineffective in explaining the effect ofthe state's promise not tei enhance
the 2004 voluntary n:umslaughter charge.
1. Co1l.l1Scl properly investigated and attempted to undermine the search
warrant.
) The Petitioner asserts that counsel's perfonnance was deficient because it failed to
adequately investigate and exploit the inconsistencies ofthe search warrant. A review of the record
indicates that the Petitioner had multiple counsel substitutions leading up to trial. Before the
appointment of Mr. Grubb, his trial attorney, the Petitioner was represented by Mr. Jason D. Parmer.
Mr. Parmer investigated the case and identified potential issues regarding the search warrant. He
prepared and filed a MotioD. to Suppress Seized Evidence. That motion was denied in the Court's
Order Denying Motion to Suppress Seized Evidence.
Mr. Grubb testified at the omnibus hearing that when he took over the case, he did not see
any merit in re-litigating those issues already settled, including the motion to suppress. Rather than
simply dismiss the perceived inconsisteuces however, he focused on them as a trial strategy to
impeach the credibility oflaw enforcement.
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Based on Mr. Grubb actions, it is clear thllt he considered the inconsi<;tencies underlying the
execution ofthe search warrant and pursued an effective and cohesive trial strategy. Under the first
prong of Strickland, counsel's performance must be objectively unreasonable. The Court cannot find
that it was objectively unreasonable to decide not to re-litigate settled issues, and to instead attack the
ineonsi~tencies as a trial strategy. 'The Court therefore holds that the Defendant did not receive an
inewctive assistance of counsel for failure to re-litigate the Motion to Suppress Seized Evidence.
2. Counsel effectively addressed the Xanax charge.
The Petitioner argues that he received ineffective assistance of counsel because Mr. Grubb
did not produce Ms. Ratliff's prescription for the Xanax which was the subject ofthe Petitioner's
possession with intent to distribute charge. At trial, the Petitioner's argument was that Ms. Ratliff
was in possession ofthe Xanax, because it was her prescription. However, the evidence shoWed that
) the Xanax was found in a drawer in the bedroOl1l and not in Ms. Ratliff's purse, the label had been
removed, and she had neitherremoved the medication from her purse, nor removed the label. On
direct examination at trial, the Defendant testified that he took the medication not to sell, but rather to
share between himself and a friend. At the omnibus hearing, Mr. Grubb testified that he made
diligent efforts to contact Ms. Ratliff and track down her prescription, but was unsuccessful. Mr.
Grubb did however put Ms. Ratliff on the stand at trial to take direct testimony as to the ownership of
theXanax.
under the first prong ofStrickland, counsel's performance must be deficient under an
objective stanclMd ofreasoIlllbleness to constitute ineffective assistance. In the case presently at bar,
counsel made diligent efforts to track down the prescription, but was unsuccessful. Although he
could not produce the prescription, he did produce the wituess who directly testified as to ownership
ofthe medication. Although it may have been preferable to have the prescription, the failure to
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acquire it after due diligence is not deficient representation under an objective standard of
reasonableness.
If the fullure to produce the prescription could be considered objectively umeasonable, tbe
Defendant's argument would nonetheless full under the second prong of Strickland. MS. Ratliff;
testi:fied that she did not remove the label from the prescription, nor did she remove it from her purse
and place it in the drawer. The Petitioner testified that he did take the medication from Ms.. Ratliff
and intended to share it between him and his friend. There is clear evidence ofpossession by the
Petitioner, regardless ofwhether the medication was properly proscribed to MS. Ratliff. Therefore,
the Court holds that the failure to produce Ms. Ratliff's prescription does not constitute ineffeetive
assistance of counsel.
3. Counsel was not ineffeetive during voir dire and the Petitioner's due process
rights were not violated.
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The Petitioner argues his counsel was ineftective because he failed to make further inquiry of
Juror Andy Ward as to his past relationships with the Petitioner, and because he fuiled to have Juror
Ward stricken for cause. The Petitioner asserts that, during voir dire, he told his counsel that he
might know Juror Ward. His trial counsel, Mr. Grubb denied that the Petitioner told him he might
know Juror Ward.
In support ofthe Petitioner's argument, he has submitted a letter from his friend, Dewey
Mann, stating that Juror Ward was the same Mr. Ward with whom they had previously engaged in
drug activity. In this same leiter, Mr. Mann recalls a conversation where thc Petitioner told him that
he thought it was a different Mr. Ward because Juror Ward appeared difterent from the man he
remembered. At the omnibus hearing, the Prosecutor represented that there are two men in the
jurisdiction with the name Andy Ward.
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Under the Strickland standard, the Petitioner must first prove that his counsel '8 performance
fell below an objective standard ofreasonableness. The Petitioner claims that he told his counsel at
voir dire that he might know Juror Ward, but does not assert that he was sure, or even confident of
that fact. Even based on the representations ofhis companion, Mr. Mann, the Petitioner believed
Juror Ward to be a different person that the Mr. Ward with whom he engaged in drug activity.
Petitioner failed to offer any evidence on this point at the omnibus hearing.
Based on the evidence, the Court finds that the Petitioner did not state to his cOUIJBel that he
knew Juror Ward. 1nereibre, the Court holds that cOUIJBel's performance was not objectively
unreasonable under the first prong ofStrlc/rland because he was un