Larry S. White, II v. Marvin Plumley, Warden

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Larry S. White II, FILED Petitioner Below, Petitioner November 23, 2015 RORY L. PERRY II, CLERK vs) No. 14-1272 (Jackson County 11-C-29) SUPREME COURT OF APPEALS OF WEST VIRGINIA

Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent

MEMORANDUM DECISION Petitioner Larry S. White II, by counsel Shawn D. Bayliss, appeals the Circuit Court of Jackson County’s October 28, 2014, order denying his petition for writ of habeas corpus. Respondent Marvin Plumley, Warden, by counsel Benjamin F. Yancey III, filed a response. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition because he established that he was entitled to relief based upon the State’s suppression of exculpatory evidence, the State’s use of illegally obtained evidence, and that he was denied the right to effective assistance of counsel.

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 February of 2008, petitioner and his co-defendant were each indicted on one count of first-degree murder and one count of conspiracy to commit first-degree murder for the death of Mohamed Mahmoud A. Mahrous (“the victim”).1 Following trial, the jury found petitioner guilty of both felonies and recommended mercy for the murder charge. Thereafter, in December of 2008, petitioner filed a motion for new a trial which was denied by the circuit court. The circuit court then sentenced petitioner to life with mercy for the charge of first-degree murder, and a term of not less than one year nor more than five years for the conspiracy charge. The two sentences were ordered to be served consecutively.

In July of 2009, petitioner filed an “Amended Renewed Motion for New Trial” alleging that the State failed to disclose court records from North Carolina that documented the issuance of domestic violence protective orders against the victim concerning petitioner’s co-defendant, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and State v. Youngblood, 221 W.Va. 20, 650

1 This victim was the co-defendant’s husband.

S.E.2d 119 (2007). Several days later the circuit court held a hearing on petitioner’s motion and denied petitioner relief.

In February of 2010, petitioner filed a direct appeal with this Court asserting that the circuit court committed the following errors: (1) failing to grant his motions to strike two prospective jurors; (2) convicting him upon insufficient evidence; (3) admitting evidence that was the fruit of an unlawful search of a cellular telephone; (4) admitting certain out-of-court statements under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence; and (5) refusing to grant his “Amended Renewed Motion for New Trial” based upon alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court held oral argument on January 12, 2011, pursuant to Rule 20 of the Rules of Appellate Procedure. By order submitted February 10, 2011, this Court affirmed the judgment finding petitioner guilty of one count of first-degree murder and one count of conspiracy to commit a felony, and sentencing him to life with mercy for the first-degree murder conviction, and a consecutive sentence of one to five years for the conspiracy. See State v. White, 227 W.Va. 231, 707 S.E.2d 841 (2011) (Davis, J.), republished as, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011).

In March of 2011, petitioner, pro se, filed his first petition for writ of habeas corpus in circuit court. Thereafter in January of 2014, the circuit court appointed petitioner counsel and filed an amended petition for writ of habeas corpus alleging the following grounds for relief: 1) ineffective assistance of counsel; 2) pre-trial publicity; 3) consecutive sentences; 4) coerced confession; 5) suppression of helpful evidence by the prosecutor (Brady violation); 6) challenges to the composition or procedure of the grand jury; 7) refusal to subpoena witnesses (ineffective counsel); 8) evidentiary rulings regarding his renewed motion for a new trial; 9) prejudicial statements by the trial judge; 10) prejudicial statements by the prosecutor; 11) sufficiency of the evidence; 12) more severe sentence than expected; 13) excessive sentence; 14) impaired counsel (ineffective counsel); and 15) rate of compensation for counsel. In August of 2014, petitioner filed a motion to continue and a motion for leave to amend his amended petition for writ of habeas corpus asserting that Riley v. California, 134 S.Ct. 2473 (2014), may apply to his case.2 The circuit court then held an omnibus evidentiary hearing, after which it denied petitioner habeas relief. It is from this order that petitioner appeals.

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).

2 The circuit court noted in its final order that it did not formally rule on petitioner’s motion, but directed the parties to address the issues raised in Riley in the proposed orders.

On appeal to this Court, petitioner reasserts his claims that the circuit court erred in denying him habeas relief based on the State’s suppression of exculpatory evidence, in violation of Brady and Youngblood; that the circuit court further erred in allowing the State’s use of illegally obtained evidence, in violation of Riley; and that he was denied the right to the effective assistance of counsel. The Court, however, does not 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 forty-five paged order includes well-reasoned 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 October 28, 2014, “Judgment Order” to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed. ISSUED: November 23, 2015 CONCURRED IN BY:

Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Allen H. Loughry II