Desmond Demetrius Clark v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex

FILED
August 30, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Desmond Demetrius Clark,
Petitioner Below, Petitioner
vs.) No. 21-0465 (Kanawha County 21-P-74)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Desmond Demetrius Clark appeals the May 7, 2021, order of
the Circuit Court of Kanawha County denying his third petition for a writ of habeas corpus.
Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick
Morrisey and Katherine M. Smith, filed a response in support of the circuit court’s order.
Petitioner filed a reply.
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.
The victim in this case was the mother of petitioner’s child. Petitioner was indicted in the
Circuit Court of Kanawha County for breaking and entering, kidnapping, and murder based upon
events surrounding the victim’s murder at a Taco Bell restaurant in Charleston, West Virginia, on
July 5, 2008. Prior to petitioner and the victim reaching the Taco Bell, petitioner chased the victim,
fired two shots at her, but missed. Petitioner caught the victim, slung her over his shoulder, and
carried her back to a SUV where he forced her inside and drove away. The victim subsequently
jumped out of the SUV and fled into the Taco Bell. Video surveillance in the restaurant captured
petitioner entering the restaurant and leaping over the counter. Petitioner located the victim inside
the restaurant and shot her six times before leaving the restaurant and driving away. Various
witnesses identified petitioner, including a mechanic who knew him, workers at the Taco Bell, and
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one witness who saw him at both the scene of the kidnapping and the murder. No witness reported
any impairment of petitioner’s condition.
Petitioner met with his psychiatric expert, Dr. Bobby Miller, five days after the victim’s
murder. Prior to trial, petitioner disclosed Dr. Miller as an expert witness who would offer
testimony as to the general effects of Xanax and alcohol use, but give no particularized opinion
regarding petitioner. Petitioner also moved for a continuance of his trial to obtain additional mental
health records to be reviewed by Dr. Miller, arguing that the additional records might lead to a
diminished capacity defense. 1 However, the circuit court determined that the only missing mental
health records were located in Wisconsin and dated from when petitioner was nine-years-old. 2
Accordingly, the circuit court denied petitioner’s motion for a continuance.
Thereafter, petitioner and the State entered into a plea agreement which provided that he
would plead guilty to first-degree murder in exchange for the dismissal of the remaining charges.
At the March 30, 2009, plea hearing, the circuit court engaged in a colloquy with petitioner. The
circuit court inquired if petitioner had a mental health defense. While petitioner had been
diagnosed with intermittent explosive disorder, 3 he advised the circuit court that he chose not to
pursue a mental health defense and wanted to accept responsibility for his crime. Petitioner further
indicated that he understood the plea agreement and that no one promised him anything or
threatened him to induce him to plead guilty. Petitioner confirmed that he understood the charge to
which he was pleading guilty, that he could spend the rest of his life in prison, and that the State did
not agree to any recommendation regarding sentencing. The circuit court inquired if petitioner
understood that the court had the option whether to grant mercy, and he responded that he
understood. Accordingly, the circuit court accepted petitioner’s guilty plea to first-degree murder.
Following the preparation of a presentence investigation report, the circuit court held
petitioner’s sentencing hearing in July of 2009. Petitioner presented Dr. Miller’s testimony in
mitigation of punishment. Dr. Miller testified that, when he evaluated petitioner five days after the
murder, he believed petitioner to be competent. Dr. Miller opined that petitioner knew what he was
doing at the time of the crime and was capable of conforming his behavior to the requirements of
the law. While petitioner’s self-reported consumption of Xanax and alcohol would have lessened
petitioner’s control of his violent impulses, petitioner failed to resist those impulses. Dr. Miller did
not testify that petitioner’s consumption of Xanax and alcohol would have affected his capacity to
1
Diminished capacity constitutes a partial defense in that it allows a defendant to introduce
“expert testimony regarding a mental disease or defect that rendered the defendant incapable, at
the time the crime was committed, of forming a mental state that is an element of the crime
charged,” but “does not preclude a conviction for a lesser included offense.” Syl. Pt. 3, State v.
Joseph, 214 W. Va. 525, 590 S.E.2d 718 (2003).
2
Petitioner was twenty-two years old when he entered his guilty plea in 2009.
3
Petitioner was diagnosed with intermittent explosive disorder prior to 2008.
2
form a specific intent to kill or to premeditate or deliberate prior to shooting the victim. 4 The
circuit court sentenced petitioner to a life term of incarceration without the possibility of parole.
Petitioner did not file an appeal challenging his conviction or sentence in his criminal case.
Subsequently, petitioner privately retained his first habeas counsel who discussed with him
the possibility of seeking a resentencing in his criminal case so that he could file an appeal.
Because petitioner wanted to allege that trial counsel provided ineffective assistance in the
criminal case, petitioner chose to file a petition for a writ of habeas corpus.
Petitioner filed his first petition for a writ of habeas corpus in 2011, alleging that trial
counsel failed to investigate mental health defenses and to offer mitigating evidence of Xanax and
alcohol use at the time of the offense. The circuit court held an omnibus evidentiary hearing on
March 9, 2012, at which both petitioner and his mother testified that trial counsel advised them that
the plea agreement was strategically the best course because it was counsel’s calculated guess that
petitioner would receive mercy. However, petitioner and his mother acknowledged that counsel
did not make any guarantees that the circuit court would sentence petitioner to a life term of
incarceration with the possibility of parole. Thereafter, the circuit court, by order entered on April
12, 2012, denied petitioner’s first habeas petition.
Petitioner appealed the circuit court’s denial of his first habeas petition in Clark v. Ballard
(“Clark I”), No. 12-0524, 2013 WL 2462188 (W. Va. Jun. 7, 2013) (memorandum decision). This
Court in Clark I affirmed the denial of petitioner’s first habeas petition, finding that the record
refuted his allegations that trial counsel failed to investigate mental health defenses and to offer
mitigating evidence of Xanax and alcohol use at the time of the offense. Id. at *2. We further
adopted “the circuit court’s well-reasoned findings and conclusions as to the assignments of error
raised in this appeal.” Id. Accordingly, we further found that,
after having been reasonably advised by his [trial] counsel, and having been
questioned by the [circuit court] at the time of his plea, it was . . . [p]etitioner’s
knowing, voluntary, [and] intelligent decision to enter his plea and to not pursue a
hypothetical claim of diminished capacity. The . . . decision constituted a knowing
waiver, evident from the [circuit court]’s colloquy with counsel and . . . [p]etitioner
at the time of the plea of guilty.
Id. at *6 (Emphasis in original.).
Petitioner filed a second habeas petition in the circuit court in May of 2016. Second habeas
counsel was appointed to represent petitioner and subsequently filed an amended petition. In the
amended petition, petitioner alleged the following: (1) ineffective assistance of habeas counsel; (2)
ineffective assistance of trial counsel; (3) prejudicial pre-trial publicity; (4) involuntary guilty
4
Voluntary intoxication constitutes a partial defense by negating the specific intent to kill
or negating the premeditation and deliberation that is required for a conviction of first-degree
murder. State v. Brant, 162 W. Va. 762, 766, 252 S.E.2d 901, 903 (1979).
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plea; (5) petitioner’s competence and criminal responsibility, or lack thereof; (6) trial counsel’s
failure to appeal petitioner’s sentence; (7) the State’s use of perjured testimony; (8) the circuit
court’s failure to grant a continuance; (9) the failure to subpoena witnesses; (10) a question of
actual guilt upon an acceptable guilty plea; (11) a more severe sentence than expected; and (12)
mistaken advice as to eligibility for probation or parole.
The circuit court held an evidentiary hearing in the second habeas proceeding on August
28, 2017. Petitioner presented several witnesses. The testimony of trial counsel, petitioner’s
mother, and Mark Pearson (petitioner’s friend) was very limited because the circuit court ruled
that, due to the omnibus evidentiary hearing in petitioner’s first habeas proceeding, the only issue
before it was whether first habeas counsel provided effective assistance in that proceeding.
Petitioner’s first habeas counsel testified about his discussion with petitioner about making
the choice to file a habeas petition rather than seeking a resentencing in order to file a criminal
appeal. First habeas counsel testified that he discussed every potential ground in the Losh list with
petitioner and informed him that any issue he did not raise would be forever waived. 5 According
to first habeas counsel, he raised the two issues in petitioner’s first habeas petition as a matter of
strategy, given that all of the other plausible issues were waived by the entry of petitioner’s guilty
plea. Next, petitioner’s criminal law expert testified that he understood first habeas counsel’s
strategy in the first habeas proceeding, but stated that he disagreed with it in petitioner’s case.
During petitioner’s testimony, he acknowledged that first habeas counsel reviewed the Losh list
with him, that he signed the Losh list, and that all of the issues not raised therein were waived.
Thereafter, the circuit court, by order entered on February 9, 2018, denied petitioner’s second
habeas petition.
Petitioner appealed the circuit court’s denial of his second habeas petition in Clark v. Ames
(“Clark II”), No. 18-0133, 2019 WL 1591878 (W. Va. Apr. 15, 2019) (memorandum decision). 6
This Court in Clark II initially rejected petitioner’s assignment of error that the circuit court
improperly limited the testimony of several of his witnesses due to its finding that the only issue
before it was whether first habeas counsel provided effective assistance in the earlier proceeding.
Id. at *3-4. The Clark II Court found that petitioner’s argument that he should have been allowed
to raise other issues in addition to ineffective assistance of first habeas counsel was contrary to
Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981). Id. The Clark II
Court also rejected petitioner’s other assignment of error, that first habeas counsel provided
5
The checklist of grounds typically used in habeas corpus proceedings, usually referred to
as the Losh list, originates from our decision in Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606(1981), wherein we set forth the most common grounds for habeas relief. See id. at 768-70, 277
S.E.2d at 611-12.
6
We take judicial notice of the record in Clark v. Ames (“Clark II”), No. 18-0133, 2019 WL
1591878 (W. Va. Apr. 15, 2019) (memorandum decision).
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ineffective assistance, and concurred with the circuit court’s finding that “petitioner was not
entitled to habeas relief on this ground.” Id. at *5.
On March 11, 2021, petitioner filed the instant (third) habeas petition, alleging that (1) both
his first and second habeas counsels failed to investigate the record and raise viable grounds for
relief; 7 (2) second habeas counsel failed to fully brief and present evidence regarding all of the
issues raised in the amended petition in petitioner’s second habeas proceeding; (3) second habeas
counsel failed to fully brief issues on appeal in Clark II; and (4) newly discovered evidence
showed that petitioner was impaired at the time that he killed the victim. The circuit court, by order
entered on May 7, 2021, rejected petitioner’s grounds for relief and denied the instant habeas
petition.
Petitioner now appeals the circuit court’s June 15, 2021, order denying the instant habeas
petition. We review a circuit court’s order denying a habeas petition under the following standards:
“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).
....
“‘A court having jurisdiction over habeas corpus proceedings may deny a
petition for a writ of habeas corpus without a hearing and without appointing
counsel for the petitioner if the petition, exhibits, affidavits or other documentary
evidence filed therewith show to such court’s satisfaction that the petitioner is
entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194
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The first ground for relief in petitioner’s instant habeas petition has six subparts.
Specifically, petitioner alleged that his first and second habeas counsels failed to allege that (1) the
circuit court accepted petitioner’s guilty plea after an inadequate plea colloquy; (2) trial counsel
advised petitioner to plead guilty to first-degree murder before completing the investigation
regarding petitioner’s intermittent explosive disorder; (3) trial counsel failed to inform petitioner
that he could plea guilty and seek to have a jury decide his eligibility for parole; (4) the circuit
court erred in denying petitioner’s motion for a continuance in order to obtain additional mental
heath records; (5) the circuit court failed to inform petitioner that he could appeal his sentence, and
(6) the circuit court failed to order the preparation of a presentence investigation report. With
regard to this sixth claim, we agree with respondent that it is based upon an inaccurate factual
premise as we stated in Clark v. Ames (“Clark II”), No. 18-0133, 2019 WL 1591878 (W. Va. Apr.
15, 2019) (memorandum decision), that “a presentence investigation report was completed”
following petitioner’s guilty plea. Id. at *1.
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S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18(2004).
Syl. Pts. 1 and 3, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Because we have
before us the denial of petitioner’s third habeas petition, we consider the application of Syllabus
Point 4 of Losh:
A prior omnibus habeas corpus hearing is res judicata as to all matters
raised and as to all matters known or which with reasonable diligence could have
been known; however, an applicant may still petition the court on the following
grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing
[and] newly discovered evidence[.]
166 W. Va. at 762-63, 277 S.E.2d at 608. We have further held that “[a] criminal defendant can
knowingly and intelligently waive his constitutional rights, and when such knowing and intelligent
waiver is conclusively demonstrated on the record, the matter is res judicata in subsequent actions
in habeas corpus.” Syl. Pt. 2, Call v. McKenzie, 159 W. Va. 191, 220 S.E.2d 665 (1975); see State
v. Greene, 196 W.Va. 500, 505, 473 S.E.2d 921, 926 (1996) (Cleckley, J., concurring) (stating
that, “in the absence of special circumstances, a guilty plea waives all antecedent constitutional
and statutory violations save those with jurisdictional consequences”) (Footnote omitted.).
On appeal, petitioner argues that the circuit court erred in denying the instant habeas
petition without holding a hearing or appointing counsel. Respondent counters that this Court
should affirm the denial of habeas relief. We agree with respondent.
We find that petitioner, as he did in Clark II, makes arguments contrary to Syllabus Point 4
of Losh. Petitioner argues that trial counsel and first habeas counsel were ineffective, but the
doctrine of res judicata prevents him from doing so due to the adjudication of those issues in Clark
I and II. This Court in Clark I adopted the circuit court’s finding that petitioner waived any mental
health defense he had and knowingly, voluntarily, and intelligently entered a guilty plea based
upon an adequate plea colloquy. 2013 WL 2462188, at *6. As first habeas counsel testified in
Clark II, by pleading guilty, petitioner waived, pursuant to Syllabus Point 2 of Call, the vast
majority of issues which he could have plausibly raised in a habeas proceeding. 2019 WL
1591878, at *5. First habeas counsel further testified that he discussed every potential ground in
the Losh list with petitioner and informed him that any issue that he did not raise would be forever
waived. Id. at *2. (Footnote omitted.). Our review of the August 28, 2017, hearing transcript
confirms that petitioner likewise testified that first habeas counsel reviewed the Losh list with him,
that he signed the Losh list, and that all of the issues not raised therein were waived. Accordingly,
while petitioner permissibly raises the ineffective assistance of second habeas counsel pursuant to
the exception set forth in Syllabus Point 4 of Losh, we find that petitioner cannot show that second
habeas counsel was ineffective due to our affirmation of the circuit court’s ruling in Clark II.
The test for evaluating ineffective assistance of counsel claims is as follows:
In the West Virginia courts, claims of ineffective assistance of counsel are
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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, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Additionally,
[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.
At the August 28, 2017, hearing, the circuit court limited the evidence second habeas
counsel could present, ruling that the only issue before it was whether first habeas counsel
provided effective assistance in the earlier proceeding. In Clark II, second habeas counsel
challenged the circuit court’s ruling on appeal, but we rejected that assignment of error because
“[p]etitioner’s argument ignores our earlier finding in [Syllabus Point 4 of Losh].” 2019 WL
1591878, at *3-4. Thus, while petitioner argues that second habeas counsel failed to adequately
raise various issues both at the hearing and on appeal in Clark II, pursuant to Syllabus Point 4 of
Losh, the only issue that second habeas counsel was permitted to raise was ineffective assistance of
first habeas counsel. We find that second habeas counsel clearly raised that issue both at the
hearing and on appeal in Clark II. Therefore, pursuant to the Strickland/Miller test, we find that
second habeas counsel’s performance did not fall below an objective standard of reasonableness.
Newly discovered evidence constitutes another exception to the doctrine of res judicata
under Syllabus Point 4 of Losh. Petitioner argues that newly discovered evidence shows that he
was impaired at the time that he killed the victim. Petitioner’s newly discovered evidence consists
of two affidavits and one e-mail from acquaintances—including an affidavit from Mr. Pearson,
whose testimony at the August 28, 2017, hearing was limited due to the circuit court’s ruling that
was affirmed in Clark II—stating that they have information about petitioner’s consumption of
Xanax and alcohol around the time of the murder. Petitioner further states that there is research
regarding the combined effect of Xanax and alcohol on a person’s cognitive functioning.
We set forth the test for evaluating newly discovered evidence in the Syllabus of State v.
Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979):
“A new trial will not be granted on the ground of newly-discovered
evidence unless the case comes within the following rules: (1) The evidence must
appear to have been discovered since the trial, and, from the affidavit of the new
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witness, what such evidence will be, or its absence satisfactorily explained. (2) It
must appear from facts stated in his affidavit that plaintiff was diligent in
ascertaining and securing his evidence, and that the new evidence is such that due
diligence would not have secured it before the verdict. (3) Such evidence must be
new and material, and not merely cumulative; and cumulative evidence is
additional evidence of the same kind to the same point. (4) The evidence must be
such as ought to produce an opposite result at a second trial on the merits. (5) And
the new trial will generally be refused when the sole object of the new evidence is
to discredit or impeach a witness on the opposite side.” Syllabus Point 1, Halstead
v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)[, overruled on other grounds, State v.
Bragg, 140 W. Va. 585, 87 S.E.2d 689 (1955)].
In rejecting petitioner’s newly discovered evidence claim, the circuit court found that the
affidavits and the e-mail would not have changed the result of petitioner’s criminal case.
Petitioner’s consumption of Xanax and alcohol, as well as his intermittent explosive disorder, were
known to his psychiatric expert, Dr. Miller, in his criminal case, who opined that petitioner knew
what he was doing at the time of the crime and was capable of conforming his behavior to the
requirements of the law. According to Dr. Miller’s expert opinion, petitioner had no mental health
defense. As petitioner testified in the first habeas proceeding, he made a strategic choice to forego
a mental health defense and plead guilty based upon the calculation that it gave him the greatest
opportunity for a life sentence of incarceration with the possibility of parole. Accordingly, this
Court in Clark I adopted the circuit court’s finding that “[petitioner’s] guilty plea was motivated by
the overwhelming strength of the State’s evidence, the lack of [a] mental [health]/diminished
capacity defense, and matters of strategy[.]” 2013 WL 2462188, at *6. Thus, we find that the
circuit court properly rejected petitioner’s newly discovered evidence claim. Therefore, we
conclude that the circuit court did not abuse its discretion in denying petitioner’s third petition for
a writ of habeas corpus.
For the foregoing reasons, we affirm the circuit court’s June 15, 2021, order.
Affirmed.
ISSUED: August 30, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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