Stanley Demere v. David Ballard, Warden

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Stanley Demere, FILED
Petitioner Below, Petitioner March 12, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs.) No. 12-0145 (Pendleton County 10-C-2) OF WEST VIRGINIA
David Ballard, Warden, Mount Olive Correctional Center
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner, Stanley Demere, by counsel Jessica M. Baker, appeals from the “Order
Denying Petitioner’s Amended Second Petition for Post-Conviction Habeas Corpus Relief”
entered by the Circuit Court of Pendleton County on October 12, 2010. Respondent, David
Ballard, Warden of Mount Olive Correctional Complex, appears by counsel, Laura Young.
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 convicted of first degree murder and sentenced to life without mercy.
Petitioner filed a direct appeal to this Court, which was refused. On June 7, 2007, petitioner filed
his first petition for habeas corpus relief asserting eleven grounds for relief. The circuit court
denied the petition for habeas corpus relief after an evidentiary hearing. On June 3, 2009, this
Court refused petitioner’s appeal of the circuit court’s order denying habeas corpus relief1. Next,
petitioner filed a petition for habeas corpus relief in the United States District Court for the
Northern District of West Virginia asserting nine grounds for relief, which was held in abeyance
pending resolution of unexhausted federal claims at the State level. On March 18, 2010, and June
28, 2010, Petitioner filed a pro se second petition for habeas corpus relief and an amended
second petition for habeas corpus relief asserting four grounds for relief, including ineffective
assistance of prior habeas corpus counsel for failing to raise federal constitutional rights. On
October 12, 2010, the circuit court denied petitioner’s amended second petition for habeas
corpus relief stating, “if a federal right was presented, then the [c]ourt did consider such federal
issues in making its decision.”
This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:
1
This Court refused petitioner’s habeas corpus appeal, No. 090677.
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).
Petitioner argues prior habeas corpus counsel failed to raise federal constitutional rights
as grounds for habeas corpus relief. Petitioner also argues that the circuit court failed to
acknowledge and specifically find that petitioner’s federal rights were not violated by trial
counsel in the first habeas corpus order. The respondent argues only ineffective assistance of
prior habeas corpus counsel is proper in this case as other issues were fully adjudicated or
waived. The respondent argues petitioner has failed to offer any evidence to support the
conclusory statement that previous counsel failed to raise allegations of petitioner’s federal
constitutional rights. The respondent argues the instant order clarifies that “the [c]ourt did
consider such federal issues in making its decision.” This Court finds that the order shows that
the circuit court considered federal issues in making its first habeas ruling. Therefore, we find no
merit in this assignment of error because we find no error in the finding that prior habeas counsel
was not ineffective
For the foregoing reasons, we find no error in the decision of the circuit court and the
denial of petitioner’s petition for writ of habeas corpus is affirmed.
Affirmed.
ISSUED: March 12, 2013
CONCURRED IN BY:
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum