Desmond D. Clark v. Ralph Terry, Acting Warden ( 2019 )


Menu:
  •                             STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Desmond Demetrius Clark,
    Petitioner Below, Petitioner                                                     FILED
    April 15, 2019
    vs) No. 18-0133 (Kanawha County 16-P-219)                                    EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Donnie Ames, Superintendent,
    Mount Olive Correctional Complex,
    Respondent Below, Respondent
    MEMORANDUM DECISION
    Petitioner Desmond Demetrius Clark, by counsel Charles R. Hamilton, appeals the
    Circuit Court of Kanawha County’s February 9, 2018, order denying his second petition for writ
    of habeas corpus. Respondent Donnie Ames, Superintendent, Mount Olive Correctional
    Complex,1 by counsel Elizabeth Davis Grant, submitted 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 affirming the order of the circuit court is appropriate
    under Rule 21 of the Rules of Appellate Procedure.
    In 2008, petitioner was indicted by the Kanawha County Grand Jury and charged with
    breaking and entering, kidnapping, and murder, stemming from the murder of Na’lisha Gravely
    in a Taco Bell restaurant in Charleston, West Virginia. According to the circuit court’s order in
    this habeas matter, the surveillance video from the restaurant positively identified petitioner as
    the murderer. Petitioner was found hiding in a utility closet in a home in Kanawha County and
    was arrested several hours after the killing. The State offered a plea agreement whereby
    petitioner would plead guilty to first-degree murder, with the parties free to argue mercy at
    sentencing, and the other charges would be dismissed. The plea agreement was placed on the
    record on March 30, 2009. During that hearing, petitioner’s lead trial counsel, Theresa R.
    Chisolm, requested an opportunity for both of petitioner’s trial attorneys and petitioner’s mother
    1
    Since the filing of the appeal in this case, the superintendent at Mount Olive
    Correctional Complex has changed and the superintendent is now Donnie Ames. The Court has
    made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of
    Appellate Procedure. Additionally, effective July 1, 2018, the positions formerly designated as
    “wardens” are now designated “superintendents.” See W. Va. Code § 15A-5-3.
    1
    to meet with petitioner, and the judge indicated his willingness to take as much time as needed
    for petitioner “and counsel to communicate and understand . . .” to ensure that petitioner
    understood what he was doing and that his plea was done freely, voluntarily, and intelligently.
    The hearing was continued and petitioner was afforded the opportunity to speak with his mother
    and his attorneys. The hearing resumed approximately four hours later, at which time the circuit
    court questioned petitioner, establishing that he was twenty-two years of age and had never been
    diagnosed with a mental illness. When the court pointed out that counsel had indicated that
    petitioner might have a mental defense to the crime, counsel clarified that petitioner had been
    diagnosed with ADHD and a provisional diagnosis of intermittent explosive disorder. Counsel
    stated that it was petitioner’s desire not to pursue a mental defense but to accept responsibility
    for his crime. Petitioner also indicated that he understood the plea agreement and that no one
    promised him anything or threatened him to induce his agreement to the plea. Further, he stated
    that the medication provided to him by the jail did not affect his ability to think clearly. He
    confirmed that he understood the charge to which he was pleading guilty, that he could spend the
    rest of his life in prison, and that the State did not agree to any recommendation regarding
    sentencing. The court accepted petitioner’s guilty plea, and a presentence investigation report
    was completed.
    Dr. Bobby Miller evaluated petitioner to determine competency, criminal responsibility,
    and any psychiatric diagnoses; he found petitioner to be competent. Dr. Miller believed that
    petitioner had intermittent explosive disorder, but that at the time he killed Ms. Gravely
    petitioner knew what he was doing. Dr. Miller found petitioner to be criminally responsible
    because he appreciated the wrongfulness of his actions and was capable of conforming his
    behavior to the requirements of the law but chose not to do so. On July 7, 2009, petitioner was
    sentenced to life in prison without the possibility of parole. On November 2, 2009, he filed a
    motion to reconsider his sentence, but that motion was denied by order entered November 10,
    2009.
    Petitioner filed his first petition for writ of habeas corpus on October 11, 2011, and he
    was afforded an omnibus hearing with the assistance of counsel. In that petition, petitioner
    asserted ineffective assistance of counsel because counsel failed to investigate mental and
    medical defenses known at the time of sentencing and ineffective assistance of counsel due to
    mitigating evidence of Xanax and alcohol use at the time of the offense that was not offered at
    sentencing. Petitioner and his mother testified at the evidentiary hearing, with petitioner
    testifying that he had little recall as to what happened due to voluntary intoxication. He stated
    that his lawyers never talked about a defense but suggested that he would receive mercy.
    Petitioner acknowledged that he knew about his lack of memory when he entered his plea and
    that he was truthful with his lawyers in all respects. He also acknowledged he thought that he had
    a mental defense because of diminished capacity, shared all the information with counsel, and
    knew that at the time he entered the plea. Petitioner’s mother testified that trial counsel did not
    guarantee mercy but gave advice as to what they thought the outcome would be. She admitted
    that her son made his own decision about entering the plea. The circuit court determined that
    petitioner had failed to demonstrate that his counsel was ineffective and dismissed the petition by
    order entered April 12, 2012. That decision was appealed to this Court and affirmed in a
    memorandum decision. Clark v. Ballard, Case No. 12-0524, 
    2013 WL 2462188
    (W. Va. June 7,
    2013) (memorandum decision) (“Clark I”).
    2
    Petitioner filed a second petition for writ of habeas corpus in the circuit court in May of
    2016. The second petition alleged the following: ineffective assistance of habeas counsel,
    ineffective assistance of trial counsel, prejudicial pre-trial publicity, involuntary guilty plea,
    petitioner’s competence and criminal responsibility or lack thereof, the failure of trial counsel to
    appeal petitioner’s sentence, the State’s use of perjured testimony, the failure to grant a
    continuance, the refusal to subpoena witnesses, question of actual guilt upon an acceptable guilty
    plea, more severe sentence than expected, and mistaken advice as to eligibility for probation or
    parole. Following the second omnibus evidentiary hearing, the circuit court entered its February
    9, 2018, final order, finding that because this was a successive petition, the only available issues
    to be raised are newly discovered evidence, change in the law that is favorable to petitioner and
    may be retroactively applied, and ineffective assistance of the prior habeas counsel.
    Sherman Lambert, petitioner’s attorney during his first habeas proceeding, testified that
    he discussed filing a request to file an appeal out of time for petitioner. He explained that in
    preparation for filing a petition for writ of habeas corpus, he had numerous visits with petitioner,
    obtained psychiatric records, and obtained petitioner’s file from trial counsel. Mr. Lambert also
    consulted with a mental health expert witness. He testified that while he raised ineffective
    assistance of trial counsel in not pursuing certain mental and medical defenses and in failing to
    offer mitigating evidence of the use of drugs and alcohol at the time of the offense, he did not see
    other viable issues. Mr. Lambert testified that he discussed every potential ground in the Losh list
    with petitioner and informed him that anything he did not raise would be forever waived.2
    According to Mr. Lambert, he chose not to raise the issue of involuntary plea because a review
    of the plea colloquy regarding any question that petitioner believed he had been promised mercy
    revealed that petitioner clearly acknowledged that the judge had the discretion to sentence him to
    life in prison. He testified that, as a matter of strategy, he proffered the two issues in the petition
    for writ of habeas corpus because all other plausible issues were waived by the entry of the guilty
    plea. Mr. Lambert testified that he chose not to communicate with trial counsel because he
    believed the documents he had were sufficient. He also testified he determined that petitioner
    had reported things his previous lawyers had said and done that were inaccurate and untrue.
    After considering the second petition for writ of habeas corpus and the testimony of
    petitioner’s first habeas counsel, the circuit court found that it was Mr. Lambert’s strategic
    decision not to communicate with trial counsel or seek their testimony at the initial omnibus
    hearing. Attorney Shawn Bayliss testified as an expert witness at the second omnibus hearing
    and opined that he understood the strategy employed by Mr. Lambert but that he did not believe
    that strategy was objectively reasonable. However, he noted that the plea colloquy makes the
    plea appear freely and voluntarily given. While Mr. Bayliss acknowledged that often trial
    counsel do not testify in habeas proceedings, he continued to be critical of Mr. Lambert’s lack of
    investigation into the actions of trial counsel. In its final order, the circuit court found that
    practitioners may make different choices in representing a habeas petitioner but that a
    disagreement about those choices does not necessarily make the assistance ineffective. It
    specifically noted that “strategic decisions rarely, if ever, form the basis for relief in habeas
    corpus.”
    2
    Losh v. McKenzie, 
    166 W. Va. 762
    , 
    277 S.E.2d 606
    (1981).
    3
    In addressing applicable law, the circuit court concluded that the issues to be raised in
    successive petitions for writs of habeas corpus are very limited, reiterating the three categories
    set forth above. It, therefore, found that only ineffective assistance of prior habeas counsel was
    properly before it. After a detailed examination of the various standards related to the ineffective
    assistance of counsel, the circuit court concluded that previous habeas counsel was not
    ineffective because petitioner failed to satisfy the standard set forth in Strickland/Miller.3 The
    circuit court then found that petitioner’s other claims are barred by res judicata. Petitioner
    appeals from that order.
    We review the circuit court’s denial of petitioner’s second habeas petition as follows:
    “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).
    On appeal, petitioner asserts two assignments of error. First, he alleges that the circuit
    court clearly erred by sustaining the State’s objection to the testimony of petitioner’s trial
    counsel and witnesses at petitioner’s omnibus hearing. In support of his argument, petitioner
    contends that when the circuit court sustained the State’s objection to testimony from trial
    counsel Robert Catlett, petitioner was prevented from proving that trial counsel acted
    incompetently, that the incompetency related to a matter that would have substantially affected
    the fact-finding process if the case had proceeded to trial, and the guilty plea was motivated by
    that error. He also asserts ineffective assistance of counsel based upon coercion to enter into the
    plea agreement.
    “Our post-conviction habeas corpus statute . . . clearly contemplates that a person who
    has been convicted of a crime is ordinarily entitled, as a matter of right, to only one post-
    conviction habeas corpus proceeding[.]” Syl. Pt. 1, in part, Gibson v. Dale, 
    173 W. Va. 681
    , 
    319 S.E.2d 806
    (1984). At subsequent habeas corpus proceedings, any ground raised at a prior habeas
    corpus hearing is considered fully adjudicated and need not be addressed by the circuit court.
    Petitioner’s argument ignores our earlier finding that
    [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; however, an applicant may still petition the court on the following
    grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing;
    newly discovered evidence; or, a change in the law, favorable to the applicant,
    3
    Strickland v. Washington, 
    466 U.S. 668
    (1984); State v. Miller, 
    194 W. Va. 3
    , 
    459 S.E.2d 114
    (1995).
    4
    which may be applied retroactively.
    Syl. Pt. 4, Losh v. McKenzie, 
    166 W. Va. 762
    , 
    277 S.E.2d 606
    (1981).
    In petitioner’s first petition for habeas relief filed before the circuit court, he alleged that
    he had received ineffective assistance from trial counsel. In the circuit court’s “Order Denying
    Petition for Writ of Habeas Corpus” in that proceeding, the circuit court found that “[h]aving
    considered the record and the evidence offered with respect to the [p]etition, the [c]ourt
    concludes as a matter of law that trial counsel’s performance was not deficient under an
    objective standard of reasonableness.” It went on to set forth ample support for that finding,
    including the fact that trial counsel obtained mental health and medical records from various
    entities; trial counsel’s request for a continuance to make additional efforts to obtain those
    records; and lengthy conversations between trial counsel, counsel’s investigator, and petitioner to
    discuss discovery matters. In his first habeas proceeding, the circuit court also addressed the
    voluntariness of petitioner’s plea, concluding that “it is abundantly clear . . . that the guilty plea
    was motivated by the overwhelming strength of the State’s evidence, the lack of
    mental/diminished capacity defense, and matters of strategy, not by any error of defense
    counsel.” In Clark I, this Court not only affirmed the circuit court’s order but adopted and
    incorporated that well-reasoned order therein.
    In his first assignment of error, petitioner also points to the State’s objections to the
    testimony of Mark Pearson. Petitioner does not articulate what involvement Mr. Pearson had to
    the crime at issue. While he seems to imply that he spent time with Mr. Pearson shortly before
    the crime, he fails to identify what testimony he sought to have Mr. Pearson provide or what that
    testimony would prove. We have made clear that “[a] skeletal ‘argument,’ really nothing more
    than an assertion, does not preserve a claim[.]” State, Dep’t of Health v. Robert Morris N., 
    195 W. Va. 759
    , 765, 
    466 S.E.2d 827
    , 833 (1995) (internal quotation marks and citations omitted).
    We decline to address this inadequately briefed issue on the merits. For these reasons, we find no
    merit in petitioner’s first assignment of error.
    Petitioner next argues that the circuit court abused its discretion by finding that Mr.
    Lambert provided effective assistance. He asserts that Mr. Lambert admittedly did not contact
    trial counsel at any point related to petitioner. Petitioner points to the testimony of his expert, Mr.
    Bayliss, who testified that in his opinion petitioner’s habeas counsel was ineffective because he
    failed to investigate the plea recommendation of trial counsel and the circumstances of
    petitioner’s plea. Without citing to the record, petitioner asserts that his mother paid Mr. Lambert
    $30,000 and a psychiatrist of Mr. Lambert’s choosing $1,500; however, the psychiatrist was not
    subpoenaed to appear at the first omnibus hearing and did not provide a report to petitioner.
    While petitioner argues that Mr. Lambert listed two errors on the Losh list and informed
    petitioner “he would not need any other issues and he guaranteed him the case would be
    remanded[,]” petitioner cites only his own testimony during the second omnibus hearing in
    support of that contention. Petitioner further contends that Mr. Lambert’s assertion of only two
    errors in his first habeas proceeding was “so obviously unreasonable that it was constitutionally
    inadequate.”
    Pursuant to syllabus point 4 of Losh, ineffective assistance of habeas counsel constitutes
    5
    an exception to the doctrine of res judicata. In addition,
    [i]n 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.
    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.
    Syl. Pts. 5 and 6, State v. Miller, 
    194 W. Va. 3
    , 
    459 S.E.2d 114
    (1995).
    As we further stated in Miller,
    [w]hen 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[.]” 466 U.S. at 689
    , 104 S.Ct. at 
    2065, 80 L. Ed. 2d at 694
    . To demonstrate prejudice, a defendant must prove there is a
    “reasonable probability” that, absent the errors, the jury would have reached a
    different 
    result. 466 U.S. at 694
    , 104 S.Ct. at 
    2068, 80 L. Ed. 2d at 698
    .
    
    Miller, 194 W. Va. at 15
    , 459 S.E.2d at 126.
    In the instant matter, Mr. Lambert testified that in preparation for the filing of petitioner’s
    first petition for writ of habeas corpus, he had numerous visits with petitioner, obtained
    psychiatric records, and obtained petitioner’s file from trial counsel. He also consulted with an
    expert witness. Mr. Lambert further testified that he discussed every potential ground in the Losh
    list with petitioner and informed petitioner that any issue not raised at that time would be forever
    waived. According to Mr. Lambert’s testimony, he chose not to assert that petitioner entered his
    plea involuntarily because his review of the plea colloquy revealed that petitioner clearly
    acknowledged that the judge had the discretion to sentence him to life in prison, without mercy.
    In addition, Mr. Lambert testified that as a matter of strategy, he proffered only two issues in the
    petition for writ of habeas corpus because all other plausible issues were waived by the entry of
    the guilty plea. Finally, because he had trial counsel’s documents, he did not believe that he
    needed to consult with trial counsel, and he determined that petitioner reported things his trial
    counsel had said and done that were inaccurate and untrue. Based on those findings and the
    record before it, the circuit court concluded that petitioner was not entitled to habeas relief on
    this ground. We agree.
    6
    Finally, petitioner has failed to show that he suffered prejudice due to Mr. Lambert’s
    failure to call a psychiatrist to testify at the first omnibus hearing. He also fails to identify any
    psychiatric finding that would have changed the outcome of the proceeding. In the circuit court’s
    order, incorporated in Clark I, it found that petitioner’s decision to enter his plea was “knowing,
    voluntary, [and] intelligent[,]” which supports Mr. Lambert’s decision not to assign error and
    contest the voluntariness of petitioner’s plea. Therefore, we find no merit in petitioner’s second
    assignment of error.
    Affirmed.
    ISSUED: April 15, 2019
    CONCURRED IN BY:
    Chief Justice Elizabeth D. Walker
    Justice Margaret L. Workman
    Justice Tim Armstead
    Justice Evan H. Jenkins
    Justice John A. Hutchison
    7