William Redman III v. Donnie Ames, Superintedent, Mt. Olive Correctional Complex ( 2022 )

FILED
May 26, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
William Redman III,
Petitioner Below, Petitioner
vs.) No. 21-0223 (Ohio County 14-C-4)
Donnie Ames, Superintendent, Mt. Olive
Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner William Redman III, by counsel John M. Jurco, appeals the order of the Circuit
Court of Ohio County, entered on February 17, 2021, dismissing his second petition for a writ of
habeas corpus. Respondent Donnie Ames, Superintendent of Mt. Olive Correctional Complex,
appears by counsel Patrick Morrisey and Katherine M. Smith.
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.
Petitioner was the subject of several sexually-based complaints, including a 2006
conviction for gross sexual imposition against a nine-year-old boy and a 2008 charge for attempted
sexual battery against a seventeen-year-old girl. In January 2013, petitioner was indicted on two
counts of first-degree sexual assault, three counts of sexual abuse by a custodian, and one count of
first-degree sexual abuse against a minor. Petitioner proceeded to trial on the charges. At the
conclusion of the State’s case-in-chief, petitioner moved for a judgment of acquittal, which was
granted, in part, when the court dismissed one count of first-degree sexual assault and one count
of sexual abuse by a custodian. The jury convicted petitioner on all four remaining counts.
1
Petitioner filed a direct appeal. 1 State v. Redman, No. 15-1039, 2017 WL 678854 (W. Va.
Feb. 21, 2017) (memorandum decision). In considering petitioner’s argument that the court erred
in denying his motion for judgment of acquittal because “there was no evidence of penetration”
this Court found no error:
The circuit court properly considered the child’s testimony that petitioner’s hands
went “into” her vaginal area. While the child gave conflicting statements on this
point, she provided an explanation about those inconsistencies and told the jury that
her trial testimony was the truth. We cannot, and will not, assess her credibility on
a cold record. Petitioner presented those concerns to the jury, and it found the
child’s trial testimony to be credible.
Id. at * 7.
Regarding petitioner’s insufficiency of the evidence claim, this Court also found no error,
noting that “the jury was presented with petitioner’s claims regarding the child’s inconsistencies
but found [the child’s] trial testimony to be credible.” Id. at *8. Thus, this Court affirmed
petitioner’s convictions and sentence.
Petitioner filed his first habeas petition in the Ohio County Circuit Court on January 25,
2018. In his first petition for habeas corpus relief, petitioner alleged ineffective assistance of trial
counsel based upon counsel’s
failure to argue (1) that [the investigating officer’s] grand jury testimony constituted
willful and intentional fraud; (2) that it is impermissible for the State to present only
one witness to the grand jury; (3) that petitioner had a brain aneurysm that rendered
him unable to control his behavior toward the child [victim]; and (4) that the child
[victim] testified as to prior bad acts, evidence of which was inadmissible pursuant
to Rule 404(b) of the West Virginia Rules of Evidence.
The circuit court found that none of petitioner’s claims had merit and denied the petition. Petitioner
appealed the court’s denial of his first habeas corpus petition to this Court. This Court
[c]oncur[red] with the circuit court’s finding that none of the issues petitioner
argues that his trial attorney could and should have asserted have merit, and,
therefore, it did not constitute ineffective assistance for petitioner’s trial counsel
not to raise those issues. Accordingly, we conclude that the circuit court properly
denied petitioner’s habeas petition without a hearing or appointment of counsel.
William R. v. Ames, No. 18-0385, 2019 WL 2499717, *6 (W. Va. June 17, 2019) (memorandum
decision).
1
In his direct appeal, petitioner argued that (1) the circuit court erred in denying his motion
to dismiss the charges related to “penetration”; (2) the circuit court erred in denying his motion to
strike a prospective juror for cause; (3) the circuit court erred in denying his motion for judgment
of acquittal; and (4) insufficient evidence to support the verdict.
2
In March of 2020, petitioner initiated this second petition for habeas corpus relief in the
Ohio County Circuit Court. After the court appointed petitioner counsel for this second habeas
corpus petition, counsel filed an amended habeas corpus petition. In this second habeas corpus
petition, petitioner raised the following grounds: (1) trial court committed error and petitioner
received ineffective assistance of trial counsel concerning the jury instruction related to the sexual
abuse by a custodian charge; (2) trial court committed error and petitioner received ineffective
assistance of trial counsel for failure to instruct the jury on the lesser-included offense of sexual
abuse in the first-degree; and (3) trial court committed error and petitioner received ineffective
assistance of trial counsel for failure to provide a “care and caution” instruction. On July 20, 2020,
petitioner filed a motion for appropriation of funds “to hire a legal expert attorney to review the
file and testify at an evidentiary hearing as to whether or not defense trial counsel was ineffective.”
On February 17, 2021, the circuit court denied petitioner’s second request for habeas
corpus relief and dismissed the petition without a hearing. The court found that “[p]etitioner’s
Second Petition does not set forth evidence supporting its new claims for habeas relief. Petitioner
simply chooses four new theories of relief, each of which holds no merit; and thus, this Court does
not find that any of the grounds creates probable cause of success on the merits.” Additionally, the
court found that “counsel is afforded significant latitude in making strategic decisions in
representing a client.” Additionally, citing the Strickland/Miller standard, the court found that
“trial counsel was not ineffective, let alone so ineffective as to fall outside of the ‘broad range of
professionally competent assistance.’” Further, the court noted “[t]rial counsel’s decision not to
ask for a lesser included jury instruction on the crimes charged is one of strategy, not substance.
Notwithstanding, the jury’s ultimate decision finding petitioner guilty renders a lesser included
jury instruction moot.” Further, the court noted that
[p]etitioner’s argument that the jury instructions and statute upon which
[p]etitioner was convicted were unconstitutional hold no merit as each one of the
crimes charged are correctly derived from constitutionally appropriate criminal
statutes set forth within the West Virginia Code. Hence, the West Virginia Supreme
Court of Appeals affirmed the jury’s conviction of [p]etitioner on appeal.
Petitioner now appeals arguing that the court erred in denying his second petition for
habeas corpus relief. Further, he argues that the court erred in not ruling on his motion for
appropriation of funds to hire an expert regarding his ineffective assistance of counsel claims.
As this matter is an appeal from the circuit court’s order denying habeas relief, our standard
of review is 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.” Syllabus point 1, Mathena v. Haines, 219
W. Va. 417, 633 S.E.2d 771 (2006).
3
Syl. Pt. 1, Meadows v. Mutter, 243 W. Va. 211, 842 S.E.2d 764 (2020).
“On 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. 2,
Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).
In the second petition for habeas corpus relief, petitioner claims that the court erred and his
counsel was ineffective when counsel failed to object to some of the jury instructions. Upon our
review of the record, petitioner is not entitled to habeas corpus relief on the basis of any of these
arguments.
A criminal defendant has the right to counsel, and “the right to counsel is the right to the
effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2063 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14
(1970)); W. Va. Const. art. III, § 14 (providing that a criminal defendant is entitled to a jury trial
and that “[i]n all such trials, the accused . . . shall have the assistance of counsel”). When an
individual convicted of a crime alleges that he has received ineffective assistance of counsel, that
claim is “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.” Syl. Pt.
5, in part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Petitioner must satisfy both prongs
of the Strickland/Miller test, to be entitled to relief. See id. However, “[i]n deciding ineffective of
assistance claims, a court need not address both prongs of the conjunctive standard of Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995), but may dispose of such a claim based solely on a petitioner’s
failure to meet either prong of the test.” Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W. Va.
314, 465 S.E.2d 416 (1995).
In reviewing counsel’s performance under this Strickland/Miller test,
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 [petitioner’s] counsel’s strategic
decisions. Thus, a reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as [petitioner’s] counsel acted in the case at issue.
Miller, 194 W. Va. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6, in part. Our scrutiny of counsel’s
performance is “highly deferential.” Id. at 16, 459 S.E.2d at 127 (quoting Strickland, 466 U.S. at
689, 104 S. Ct. at 2065). “[T]here is a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance, and judicial scrutiny of counsel’s performance
must be highly deferential[.]” State ex rel. Daniel, 195 W. Va. at 317, 465 S.E.2d at 419, Syl. Pt.
3, in part.
4
Upon our review of this matter, we agree with the findings and conclusions of the circuit
court as to petitioner’s claim that he received ineffective assistance of trial counsel. In this instance,
the circuit court found that petitioner’s trial counsel’s actions fell within the significant latitude of
strategic decision-making afforded under our law. Consequently, petitioner has not satisfied the
first prong of the Strickland/Miller test. Thus, petitioner failed to show that he is entitled to the
relief sought.
Inasmuch as the court found that petitioner’s counsel was not ineffective, and we refused
to disturb this ruling on appeal, petitioner’s final assignment of error that the court erred in not
ruling on his motion for appropriation of funds to hire an expert regarding the ineffective assistance
of counsel claims is moot. Accordingly, petitioner is entitled to no relief.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: May 26, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
NOT PARTICIPATING:
Justice C. Haley Bunn
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