SER Roger Lee Harper v. David Ballard, Warden

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State ex rel. Roger Lee Harper,
Petitioner Below, Petitioner FILED
February 11, 2013
RORY L. PERRY II, CLERK
vs) No. 11-1083 (Roane County 93-C-147 & 08-C-62) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
David Ballard, Warden,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Roger Lee Harper, by counsel, Dennis H. Curry, appeals the Circuit Court of
Roane County’s order entered on June 27, 2011, denying his motion for reconsideration of the
circuit court denial of his petition for writ of habeas corpus. Respondent Warden Ballard, by
counsel, Laura Young, filed a response in support of the circuit court’s decision.
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Petitioner was charged with two counts of first degree murder and one count of malicious
wounding after an altercation wherein two victims were killed and one was wounded. Petitioner
was committed to Weston State Hospital, where he was later found competent to stand trial and
responsible for his criminal conduct. Petitioner sought the services of a second expert after his
first expert rejected petitioner’s contention that he suffers from intermittent explosive disorder.
The motion for payment of the second expert’s fees was denied. Petitioner was eventually found
guilty of all three counts by a jury. Petitioner later filed a petition for writ of habeas corpus, and
obtained yet another expert to bolster his claim that he was denied a meaningful defense at trial
on the issue of whether he suffers from intermittent explosive disorder. The circuit court denied
the petition. Petitioner then filed a motion for reconsideration of the denial of habeas relief which
the circuit court denied.
Petitioner appeals the denial of his motion for reconsideration. “‘A motion to vacate a
judgment made pursuant to Rule 60(b), W.Va. R.C.P., is addressed to the sound discretion of the
court and the court’s ruling on such motion will not be disturbed on appeal unless there is a
showing of an abuse of such discretion.’ Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778, 204
S.E.2d 85 (1974).” Syl. Pt. 1, Builders’ Serv. and Supply Co. v. Dempsey, 224 W.Va. 80, 680
S.E.2d 95 (2009). Finally, “‘[a]n appeal of the denial of a Rule 60(b) motion brings to
consideration for review only the order of denial itself and not the substance supporting the
underlying judgment nor the final judgment order.’ Syllabus Point 3, Toler v. Shelton, 157
W.Va. 778, 204 S.E.2d 85 (1974).” Syl. Pt. 2, Dempsey, 224 W.Va. 80, 680 S.E.2d 95.
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Petitioner argues that whether he suffered from intermittent explosive disorder was a jury
question, and that he was denied a fair presentation of this defense by the trial court’s denial of
his request for a second expert. The State argues that petitioner is appealing only from the denial
of his motion for reconsideration, and that he did not meet his burden under Rule 60(b) of the
West Virginia Rules of Civil Procedure.
Our review of the record reflects no clear error or abuse of discretion by the circuit court.
Having reviewed the circuit court’s “Order Denying Reconsideration of Order Denying
Amended Petition for Writ of Post-Conviction Habeas Corpus” entered on June 27, 2011, we
hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the
assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit
court’s order to this memorandum decision.
For the foregoing reasons, we affirm the circuit court’s order.
Affirmed.
ISSUED: February 11, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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