Jamie Turner v. David Ballard, Warden ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Jamie Turner, FILED
Petitioner Below, Petitioner
April 10, 2017
RORY L. PERRY II, CLERK
vs) No. 15-0987 (Cabell County 10-C-713) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
David Ballard, Warden,
Mount Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Jamie Turner, by counsel James R. Mills, appeals the Circuit Court of Cabell
County’s September 15, 2015, order denying his amended petition for writ of habeas corpus.
Respondent David Ballard, Warden, by counsel Nic Dalton, filed a response. Petitioner filed a
reply. On appeal, petitioner argues that the circuit court erred in denying his amended habeas
petition on the grounds of ineffective assistance of trial counsel, ineffective assistance of habeas
and appellate counsel, and a more severe sentence than expected. Petitioner also contends that
the circuit court failed to consider several grounds for relief that were properly raised in the
underlying proceeding.
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.
In October of 2006, the Cabell County grand jury indicted petitioner and his co-defendant
on three counts of robbery and one count of fleeing an officer. These charges stemmed from an
incident in which petitioner and his co-defendant allegedly robbed three individuals at gunpoint
as the individuals walked back to their fraternity house.1 The following year, a jury found
petitioner guilty on all four counts. Thereafter, by order entered on October 12, 2007, the circuit
court sentenced petitioner to a cumulative term of incarceration of sixty years for all three
robbery counts and a consecutive term of incarceration of six months for fleeing an officer.
1
Two of the alleged victims were the sons of then-prosecuting attorney Christopher
Chiles. However, by order entered July 11, 2014, Philip W. Morrison was appointed as a special
prosecuting attorney to handle the criminal proceedings.
1
In 2010, petitioner filed a direct appeal with this Court, which was consolidated with his
co-defendant’s direct appeal. On appeal, petitioner argued that the circuit court “coerced a guilty
verdict by pressuring the jury to reach its verdict [and] that one of th[e] robbery convictions was
improper because no money or personal property was stolen[.]” After oral argument, this Court
affirmed petitioner’s convictions by decision entered on June 3, 2010. See State v. Pannell, 225
W.Va. 743, 696 S.E.2d 45 (2010). Shortly thereafter, petitioner filed a petition for writ of habeas
corpus and a motion for appointment of counsel.
In 2014, petitioner filed an amended petition for writ of habeas corpus and a Losh List.2
Petitioner asserted twenty-six separate grounds for habeas relief. However, petitioner set forth
only three independent grounds for relief in his memorandum of law in support of his amended
petition for writ of habeas corpus: (1) ineffective assistance of counsel, (2) irregularities in his
arrest, and (3) a more severe sentence than expected. According to petitioner, his trial counsel
was ineffective for the following reasons: (1) counsel failed to move for a change of venue or to
recuse the sitting judges of Cabell County; (2) counsel failed to file a motion to test any of the
physical evidence for DNA; (3) counsel failed to discuss the charges with the lawyer that
represented petitioner during the preliminary hearing; (4) counsel failed to file a motion to sever
petitioner’s trial; and (5) counsel improperly informed petitioner about his parole eligibility. The
circuit court conducted an omnibus evidentiary hearing during which petitioner’s trial counsel
testified. After considering the parties arguments, the circuit court denied petitioner habeas relief
by order entered on September 15, 2015. This appeal followed.
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 to this Court, petitioner argues that the circuit court failed to consider several
grounds for relief that were properly raised in the underlying habeas proceeding and that he
received ineffective assistance of trial and appellate counsel.3 The Court, however, does not
2
The checklist of grounds typically used in habeas corpus proceedings, commonly known
as “the Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
3
On appeal to this Court, petitioner also raised, for the first time, that his trial counsel was
ineffective for the following reasons: (1) failing to object to statements that the victims were sons
of the prosecuting attorney; (2) failing to advise that a finding of a firearm could affect his parole
eligibility; (3) failing to object when the prosecutor conflated the reasonable doubt standard; and
(continued . . .)
2
agree. 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 order includes 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 September 14, 2015, “Order Denying Writ of Habeas
Corpus Following Omnibus Hearing” to this memorandum decision.
Petitioner also alleges that he received ineffective assistance of habeas counsel because
counsel failed to set forth arguments for all of petitioner’s alleged grounds for habeas relief,
which include failing to make a motion for post-conviction DNA testing. However, we decline to
address these issues on appeal. This Court has held:
It is the extremely rare case when this Court will find ineffective
assistance of counsel . . . . 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, in part, State v. Triplett, 187 W.Va. 760, 421 S.E. 2d 511 (1992). Petitioner is raising
habeas counsel’s alleged ineffective assistance for the first time on appeal. If petitioner continues
to believe that prior appellate and habeas counsel were ineffective, the preferred way of raising
these ineffective assistance counsel claims is to file a subsequent petition for a writ of habeas
corpus raising these issues in the court below. See Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762,
277 S.E.2d 606 (1981) (While a prior habeas corpus hearing is res judicata as to all matters either
raised or should have been raised at the habeas corpus hearing, “an applicant may still petition
the court on the following grounds: ineffective assistance of counsel at the omnibus habeas
corpus hearing.”).4
(4) improperly advising petitioner that pleading guilty to a pending drug charge in Logan county
would not affect his sentence. However, the Court finds that neither petitioner’s amended
petition for writ of habeas corpus, nor his memorandum in support of the amended petition
addressed this alleged errors. “‘Our general rule is that nonjurisdictional questions . . . raised for
the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va.
333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W.Va. Dep’t of Motor Vehicles, 223
W.Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly, the Court declines to address these
assignments of error on appeal.
4
We express no opinion as to the merits of any subsequent claim for ineffective assistance
of habeas counsel.
3
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: April 10, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Elizabeth D. Walker
DISSENTING:
Justice Menis E. Ketchum
4