Roy Wisotzkey v. Ralph Terry, Acting Warden

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Roy Wisotzkey,
FILED
Petitioner Below, Petitioner April 9, 2018
EDYTHE NASH GAISER, CLERK
vs.) No. 17-0773 (Berkeley 17-C-348) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Ralph Terry, Acting Warden,
Mt. Olive Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Roy Wisotzkey, appearing pro se, appeals the August 15, 2017, order of the
Circuit Court of Berkeley County denying his petition for writ of habeas corpus. Respondent
Ralph Terry, Acting Warden, Mt. Olive Correctional Center, by counsel Shannon Frederick Kiser,
filed a summary response in support of the circuit court’s order.1 Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in denying habeas relief.
The 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.
Following a jury trial in August of 2013, petitioner was convicted of felony murder,
first-degree robbery, conspiracy, and burglary. Petitioner was sentenced to life imprisonment, with
parole eligibility for felony murder; fifty years of incarceration for first-degree robbery; not less
than one nor more than five years for conspiracy; and not less than one nor more than fifteen years
for burglary. The felony murder and robbery sentences were ordered to run consecutively to each
other and concurrently to the sentences for conspiracy and burglary. Petitioner appealed his
conviction and this Court affirmed the trial court’s rulings. See State v. Wisotzkey, No. 13-1240,
2014 WL 6607462 (W.Va. Nov. 21, 2014)(memorandum decision).
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Petitioner originally listed David Ballard as respondent to this action. However, Ralph
Terry is now the acting warden at the facility in question. Accordingly, the proper public officer
has been substituted pursuant to Rule 41(c) of the Rules of Appellate Procedure.
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In May of 2016, petitioner filed a pro se petition for writ of habeas corpus. The circuit court
appointed habeas counsel and permitted counsel to file an amended petition. Counsel filed the
amended petition and a Losh2 list alleging thirteen assignments of error. Thereafter, the circuit
court summarily dismissed the amended petition. Petitioner did not appeal that decision.
In July of 2017, petitioner filed a second petition for writ of habeas corpus alleging
ineffective assistance of habeas counsel. The circuit court found that the record was adequately
detailed to proceed without a hearing on the petition. Ultimately, the circuit court found that
petitioner was not entitled to relief and denied the petition without further proceedings by its
August 15, 2017 order. Petitioner appeals from that order.
We apply the following standard of review in habeas appeals:
“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 argues that the circuit court erred by denying his second petition for
writ of habeas corpus based on the alleged ineffective assistance of petitioner’s first habeas
counsel. Petitioner asserts that the circuit court erred in (1) concluding that habeas counsel was
adequately prepared for the first habeas proceeding; (2) concluding that petitioner offered no
evidence establishing how habeas counsel’s performance was deficient; and (3) increasing the
burden of proof by requiring petitioner to show what evidence would have been discovered, but for
petitioner’s ineffective counsel. Respondent argues that petitioner fails to prove that his habeas
counsel rendered ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the appeal should be denied. We agree with
respondent.
We review ineffective assistance of counsel claims as follows:
In 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.
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Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
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Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Furthermore,
[i]n 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.
Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6.
On appeal, petitioner’s argues that his first habeas counsel was ineffective and the circuit
court erred in finding that counsel was adequately prepared. Petitioner argues that the circuit
court’s order stating that many of petitioner’s habeas claims were a “mere recitation of grounds
without factual support” is proof of counsel’s ineffectiveness. Petitioner asserts that this is
evidence enough to show that his habeas counsel was deficient. Petitioner must show that
“[c]ounsel’s performance was deficient under an objective standard of reasonableness.” Miller,
194 W.Va. at 6, 459 S.E.2d at 117. Denial of a petition alone, however, is not enough to show that
counsel’s performance was deficient under an objective standard of reasonableness.
Petitioner emphasizes that he was appointed counsel for his first pro se petition because his
claims were meritorious and that the dismissal after appointment of counsel was the fault of
counsel. Yet, petitioner’s counsel asserted the same claims from petitioner’s pro se petition and the
petition was still denied. Petitioner claims that his counsel did not review the record, yet the
amended petition includes a detailed recitation of facts apparently written by counsel. Further,
petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” Miller, 194 W.Va. at 6, 459
S.E.2d at 117. Petitioner asserts that the circuit court would have granted habeas relief if he was
adequately represented. Again, however, petitioner states no basis other than denial of the petition
was the effect of ineffective assistance of counsel. Accordingly, we find that the circuit court did
not err in denying petitioner’s second petition.
Further, petitioner argues that the circuit court erred in denying his petition because he
received ineffective assistance of habeas counsel. Specifically, petitioner claims that his attorney’s
representation was deficient because (1) habeas counsel failed to allege ineffective assistance of
appellate counsel for a failure to raise certain errors on direct appeal; (2) habeas counsel failed to
adequately investigate and brief certain claims; and (3) petitioner was “duped” into signing a Losh
list. However petitioner also raised these arguments in his petition below, the circuit court
thoroughly addressed these claims in its order denying petitioner’s second petition for habeas
relief. The circuit court’s order includes well-reasoned findings and conclusions as to the
assignment of error concerning ineffective assistance of counsel now raised on appeal, and we find
no error or abuse of discretion in the circuit court’s denial of petitioner’s amended petition.
Because we find no clear error or abuse of discretion in the circuit court’s order or record before
us, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to
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petitioner’s assignment of error raised on appeal and direct the Clerk to attach a copy of the circuit
court’s August 15, 2017, “Order Dismissing Petition for Writ of Habeas Corpus” to this
memorandum decision.
For the foregoing reasons, we affirm the circuit court’s August 15, 2017, order denying
petitioner’s instant petition for writ of habeas corpus.
Affirmed.
ISSUED: April 9, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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