Antonio Prophet v. David Ballard, Warden

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED June 21, 2016 Antonio Prophet, RORY L. PERRY II, CLERK Petitioner Below, Petitioner SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 15-1092 (Berkeley County 15-C-66) David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Antonio Prophet, pro se, appeals three orders of the Circuit Court of Berkeley County. In the first order, entered February 12, 2015, the circuit court (a) found that petitioner’s pro se petition was “not sufficient” for a fair adjudication of his grounds for relief; (b) appointed habeas counsel to file an amended petition; and (c) preserved petitioner’s objections to the rulings therein. In the second order, entered June 24, 2015, the circuit court summarily dismissed twenty-two of the grounds raised by petitioner in his habeas proceeding and directed respondent to file an answer to his remaining claims.1 In the third order, entered October 28, 2015, the circuit court disposed of petitioner’s ineffective assistance of counsel claims and denied his petition for a writ of habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Cheryl K. Saville, filed a response, and 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 orders is appropriate under Rule 21 of the Rules of Appellate Procedure. 1 The circuit court’s February 12, 2015, and June 24, 2015, orders are under appeal because, when the last order disposing of the last of all claims is appealed, “[that] appeal brings with it all prior orders.” Riffe v. Armstrong, 197 W.Va. 626, 637, 477 S.E.2d 535, 546 (1996), modified on other grounds, Moats v. Preston Cnty. Comm’n, 206 W.Va. 8, 521 S.E.2d 180 (1999). — 2 — In 2012, a Berkeley County jury convicted petitioner on two counts of first degree murder and one count of first degree arson following an apartment fire that killed petitioner’s girlfriend and her three-year-old son. The jury did not recommend mercy on either of the murder convictions. Accordingly, the circuit court sentenced petitioner to two life terms of incarceration without the possibility of parole for the murder convictions, and to a determinate term of twenty years of incarceration for the arson conviction, to be served consecutively. Petitioner appealed his convictions which this Court addressed in State v. Prophet, 234 W.Va. 33, 762 S.E.2d 602, cert. denied, __ U.S. __, 135 S.Ct. 683, 190 L.Ed.2d 396 (2014), raising the following assignments of error: (1) insufficient evidence; (2) improper cross examination of petitioner regarding a novel written by him; (3) improper comments by the prosecutor on petitioner’s post-arrest silence; (4) erroneous refusal to give an instruction proffered by petitioner; (5) prosecutor’s use of allegedly perjured testimony; (6) prosecutorial misconduct; and (7) judicial misconduct. This Court rejected the assignments of error and affirmed petitioner’s convictions. 234 W.Va. at 40-47, 762 S.E.2d at 609-16. On February 5, 2015, petitioner filed a petition for a writ of habeas corpus. By order entered February 12, 2015, the circuit court (a) found that petitioner’s pro se petition was “not sufficient” for a fair adjudication of his grounds for relief; (b) appointed habeas counsel pursuant to Rule 4(b) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings (“habeas rules”) to file an amended petition; and (c) preserved petitioner’s objections to the rulings therein. Habeas counsel filed petitioner’s amended petition on May 12, 2015, and included a request that the circuit court consider petitioner’s pro se petition as if it were “incorporate[d] by reference.”2 The circuit court entered its June 24, 2015, order that summarily dismissed twenty-two of petitioner’s grounds for relief. First, the circuit court dismissed petitioner’s claim that, in essence, asked the court to effectively reverse this Court’s decision in Prophet for allegedly erroneous rulings therein. Second, the circuit court found that petitioner waived the following claims because both grounds were capable of being raised in his criminal appeal, but were not: (1) undue media coverage influenced the jury; and (2) the trial court erred in denying his motions to strike two jurors for cause. Next, the circuit court found the following claims were previously and finally adjudicated in Prophet: (1) insufficient evidence; (2) improper questioning by the prosecutor regarding petitioner’s post-arrest silence; (3) erroneous failure to exclude evidence of petitioner’s novel; (4) prosecutor’s use of allegedly perjured testimony; (5) erroneous refusal to give an instruction proffered by petitioner; and (6) prosecutorial misconduct. 2 Based on our review of the record, we reject petitioner’s claim that the circuit court did not give proper consideration to his pro se petition. — 3 — Fourth, the circuit court dismissed the following claims pursuant to Rule 4(c) of the habeas rules because petitioner did not support those grounds with “adequate factual support”: (1) judicial misconduct; (2) mental competency at the times of the offenses; (3) mental competency to stand at trial; (4) suppression of exculpatory evidence; (5) prosecutorial falsification of transcript; (6) lack of preliminary hearing; (7) unfair grand jury composition and procedure; (8) defective indictment; (9) improper venue; (10) undue pre-indictment delay; (11) refusal to subpoena witnesses; (12) refusal to disclose witness notes following the witness’s testimony; and (13) improper use of informants. Finally, the circuit court ordered respondent to file an answer and respond to petitioner’s claims of ineffective assistance of counsel and that he should receive a new trial because of the cumulative effect of various alleged instances of ineffective assistance. Respondent filed an answer on September 21, 2015. Thereafter, the circuit court entered its October 28, 2015, order. The circuit court found that it had been “fully briefed” and that an evidentiary hearing “would not aid the [c]ourt” in adjudicating petitioner’s ineffective assistance claims. The circuit court determined that neither petitioner’s trial counsel nor his appellate counsel were ineffective. Accordingly, the circuit court denied petitioner’s habeas petition.3 Petitioner appeals the circuit court’s denial of habeas relief. We apply the following standard of review in habeas cases: 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). Rule 4(c) of the habeas rules provides, as follows: The petition shall be examined promptly by the judge to whom it is assigned. The court shall prepare and enter an order for summary dismissal of the petition if the contentions in fact or law relied upon in the petition have been previously and finally adjudicated or waived. The court’s summary dismissal order shall contain specific findings of fact and conclusions of law as to the manner in which each ground raised in the petition has been previously and finally 3 Petitioner assigns error to the circuit court’s failure to address the cumulative effect of various alleged instances of ineffective assistance. Respondent counters that the circuit court had no reason to address that issue given its finding that petitioner did not prove any of the alleged instances of inadequate representation. We agree and find that the circuit court had no need to address the cumulative error doctrine. — 4 — adjudicated and/or waived. If the petition contains a mere recitation of grounds without adequate factual support, the court may enter an order dismissing the petition, without prejudice, with directions that the petition be refiled containing adequate factual support. The court shall cause the petitioner to be notified of any summary dismissal. See also Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (holding that a circuit court may deny a habeas petition without a hearing “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.”). We find that the circuit court’s February 12, 2015, June 24, 2015, and October 28, 2015, orders adequately resolve all issues raised by petitioner in his habeas petition except for the following two issues which we now address. First, petitioner contends that the circuit court violated his constitutional right to represent himself, noting that throughout his habeas proceeding, he stated a preference to proceed pro se. “The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace.” State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996). We find that despite his stated preference, petitioner opposed a motion by his attorney to withdraw as habeas counsel on the ground that allowing the attorney to withdraw would unduly delay his habeas proceeding. Petitioner also disputed his attorney’s assessment that the attorney-client relationship was irreparably broken because he believed that contact between them had been “respectful and cordial.” Thereafter, habeas counsel withdrew the motion and continued her representation of petitioner. Given that petitioner took inconsistent positions to whether he should be represented by an attorney, we conclude that petitioner waived his objection to the circuit court’s appointment of habeas counsel. Second, petitioner contends that our decision in Prophet did not address provisions of the United States Constitution and, instead, resolved that appeal solely based on provisions of the West Virginia Constitution. Respondent counters that the circuit court correctly determined that the relevant claims were fully and finally adjudicated in Prophet. We agree with respondent. When we rendered our decision in Prophet, we clearly considered both the United States and West Virginia Constitutions. For example, in addressing petitioner’s claim that the prosecutor improperly commented on his post-arrest silence, we discussed the distinction between prearrest silence and post-arrest silence given that “impeachment by use of prearrest silence does not violate the Fourteenth Amendment [to the United States Constitution].” Prophet, 234 W.Va. at 43, 762 S.E.2d at 612 (quoting Jenkins v. Anderson, 447 U.S. 231, 240 (1980)) (Internal quotations and other citations omitted.). With regard to those issues under which only our own decisions are mentioned, we clearly considered the underlying principles of federal constitutional law. See Adkins v. Leverette, 161 W.Va. 14, 19-20, 239 S.E.2d 496, 499 (1977) (noting that “a state may not interpret its constitutional guarantee . . . below the federal [constitutional] level”). Therefore, we conclude that the circuit court did not err in finding that our decision in Prophet fully and finally adjudicated all issues raised therein. Having reviewed the circuit court’s February 12, 2015, “Order Appointing Counsel and — 5 — Directing Counsel for Petitioner to File An Amended Petition and Completed [Losh] List,”4 June 24, 2015, “Order Summarily Dismissing Certain Grounds and Ordering Respondent to Answer,” and October 28, 2015, “Order Denying Petition,” we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to all other issues raised by petitioner in this appeal. The Clerk is directed to attach copies of the circuit court’s February 12, 2015, June 24, 2015, and October 28, 2015, orders to this memorandum decision. We conclude that the circuit court did not abuse its discretion in denying petitioner’s petition for a writ of habeas corpus.5 For the foregoing reasons, we affirm. Affirmed. ISSUED: June 21, 2016 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II 4 See Losh v. McKenzie, 166 W.Va. 762, 768-770, 277 S.E.2d 606, 611-12 (1981). 5 Petitioner may raise those grounds dismissed by the circuit court pursuant to Rule 4(c) of the habeas rules in a subsequent petition provided that he supplies adequate factual support for those claims in accordance with that rule. However, we find that the circuit court overlooked that petitioner alleged judicial misconduct in Prophet. We rejected that assignment of error, finding that petitioner’s accusations of bias were “frivolous.” 234 W.Va. at 46, 762 S.E.2d at 616. Therefore, we find that petitioner may not re-raise the issue of judicial misconduct because that issue was previously and finally adjudicated by our decision in Prophet. ( IN THE CIRCUIT COURT OF BERKELEY COUNTY, WEST VIRGINIA STATE OF WEST VIRGINIA ex reI., ANTONIO PROPHET, ..,.::: Petitioner, ;'3 ~ :JJ l~·l 14.... v. CIVIL CASE NO. 15-Cji i§ i1?i ....... (-} r'fl JlJDGE LORENSEN ~ c.::r DAVID BALLARD, Warden, . fin N ==1fT1 Mount Olive Correctional Complex, - ,--< :z ::l: !TJ """ ' '" r- 0 Respondent. eN r 00 " ;;;c:: ;::0;:2: ~ ~ --{ ORDER APPOINTING COUNSEL AND DIRECTING COUNSEL F~ "', PETITIONER . . TO FILE AN AMENDED " PETITION -AND.COMPLETED .~=-'-.LOSB LIST TIlls matter came before the Court pursuant to a Pro Se petition for writ of habeas corpus. After reviewing Petitioner's Petition Under W. Va. Code §53-4A-l for Writ ofBabeas Corpus, the Court withholds granting a hearing until receiving an Amended Petition, for all habeas ( COlpUS claims, filed by counsel. If, upon initial review of the petition and any exhibits in support thereof, the court determines that the petitioner may- have grounds for relief but the petition, as filed, is not sufficient for the court to conduct a fillr adjudication of the matters raised in the petition, the court shall appoint an attorney to represent the petitioner's claims in the matter, provided that the petitioner qualifies for the appointment of counsel under Rule 3(a). The court may order appointed counsel to file an amended petition for post-conviction habeas corpus relief within the time period set by the court. w. VA. R. HABEAS 4(b). THEREFORE, this Court consolidates any previously filed petitions from the petitioner " and directs the hereby appointed habeas counsel, Lisa A. Green, Esq., to file an Amended Petition for Writ of Habeas Corpus, addressing all habeas corpus claims of the petitioner for all convictions which result in his current incarceration, Within ninety (90) days. ( (', FURTHER, the Court also withholds granting a hearing until Petitioner completes a Lash list. "Both petitioners and their lawyers can discuss these issues privately and can be expected to cooperate in filling out an appropriate form which Contains the grounds enumerated, and requires the petitioner or his counsel to check the grounds waived." Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981). Counsel shall check each waived habeas allegation, and Petitioner shall initial each waived allegation on his Losh list. Petitioner shall submit fue same to the Court within ninety (90) days. The Court notes fue objections and exceptions ofthe parties to any adverse ruling herein. The Circuit Clerk. shall distribute attested copies ofthis order and fue attached original Petition to the above-named appointed counsel and the Berkeley County Prosecuting Attorney, and a copy offue order to the Petitioner. c ENTER this~I_1 day of February, 2015. Ml~JUDGE TWENTY-TIllRD JUDICIAL CIRCUIT BERKELEY COUNTY, WEST VIRGINIA A TRUE Copy An-eST Virginia M. SIne ge~ Circuit Court 13y:---J.-C(!fp.U D~epu~ty~C~""F;"'·r 7'k--­ ( /73 , > ~i..y, 23. 2016 9: 12AM ,. No, 0409 J 2 I I I I c IN THE CIRCUIT COUR OF llERKELEY COUNTY, WEST VlRGINI~ STATE OF WEST VIRGINIA, ex .rel ANTONIO PROPHET., Petitioner, v. CIVIL CASE NO. lS-C-66 , Underlying Criminal Case No.: ll-F-67 JUDGE LORENSEN ' DAVlD BALLARD, Warden, Mt. Olive Correctional Complex, Respondent. ( 2) PubHcily unduly influenc djul'Y, J) Trial Court's failure to stJike two jurors for cause. 4) Prosecution's u~e offalsj testimony, 5) Prosecliliou',s impeachmlnt ofPetitionel' on post arrest silence. ~~ 6) Trial COUl'l'S failuro to exclude the introduction of fictional hook atUrorcd by 1~;;!;"~ fI.l'.;y .. .1 Petl tionol'. II. ~J( ~" j.­ I I 'J?t r:l~ I ~ -l""~ \5..._ -,=,-=.-;;;=---=;:;;;==O~R.>!D<!E""R,-,,<OF.P I.i ~ 'I TIAI- DISMISSAl.Or HABEAS.CORPUS . Page I ofl9 . LI Received Time May, 23, 2016 9:17AM No, 2495 I Ma'y.23.2016 9:12AM .No. 0409 . p. 3.~.c .. ( 7) Trial COllrt's failure to J.ve jlll'Y inRtruction that opporlunity nlone is insutpcient to prove guilt. 8) Prosecutorial miscooduct . 9) Trial Court misconduct. 10) Insufficient evidence to 1Pport murdel' conviction. 1!)lneffective assistance ofTa! counsel. (2) Ineffective assistance of appellate counsel. ; \3) Failure 1.1Y Supreme coJt of Appeals of West Virginia to allalyze trial $rrors on appeal. I 14) Petitioner was not menml y competent at the time ofthe crime. 15) Petitioner was not menla! y competent 10 stand for trial. ( 16) Prosecution suppression 0 exculpntory evidence. 17) Prosecution falsification JftrllllSCriPt. 18) No preliminary hearing. 19) Unfair composition and P Dcedere of grand jury. 20) Defeets ill the indictment. 21) Improper venue. 22) Pre-indictment delay. 23) Refusal to subpoena witnrsses. 24) Refusal to tum over witn1ss notes after witness has testified. 25) Improper use of informed to convict. ( ORDER OF 1'1\ TIAL DISMISSAL OH1AI3I!l\~<;:ORPUS I Pnge2 of 19 Received Time May. 23. 2016 9: 17 AM No. 2495 I MIty, n 2016 9: 12AM No, 0409 p, 4 t ! ( FACTS In 2012, a BerKeley COlUlly j I'Y convicted Mr. Prophet ofmmdering his gil'lfriol1d Angela Devonshire and her three ye r old S011 by setting her apartment on fire. Til total, Mr. Prophet was convicted of two COUI1~lOf first degree mUI'der without a recommendation of mercy lind one COllot of arson. Ms. Devonslte lived in a garage aparlment adjacent to her parent's house with her two children: Andre, he other victim, who was three years old, and Duropte, who was six weeks old at the time of the ffense. The garage apartment was located at the eml of Angela's parents' driveway about 75 yards from her parents' house. The evening of June 5, 2010 elitionel' went to spend the night at Ms. Devonshire's apartment. Sidney Devonshire m, Mi. Devonshire's brother, testified that he saw the Pe~"itioller and Ms. Devonshire at the apartment at about 9:00 p.m., on June 5. Elizabeth Kay Devo!\shire, ( Angela's mother, testified that she a oke al3:00 a.m., on June 6th and looked out the window toward her daughter's apartment. She testified that everything was quietllnd that she notiFCd [fHIt l her daughter's curtains were pulled tith!. At 4:36 a.m. on June 6th a passing motorist eaJ\ed 911 and I'oported that Ms. Devonshire's 8!artment WllS on fire. A fire marshal testified at trialitbat the lire was incendiary in nature and orig nated in Ihe middle of the living room floor of the . apartment. Angela and Andre died in the fire and their bodies were found in the burned i apartment. Altho\lgh Andre's body w~s too badly burned to determine It C!lllse of death, t~e medical examiner determined that A)re1a's throat was slit and thllt she died prior to the fire. The infant, Duronte, was found alive on Arge1a Devonshire'S parents' patio in blood-spaltere<j cloUling. The blood on the baby's c10tping \vruJ later detel'mined by an expert to be the l petitioner's. After the fire, Peliti"oner ked to North Carolina where he was arrested and ha~ . .( injuries on his hands. . I - - - - _ .. - . . . -- 'ORDBR 01'·PAR[!Ab DlSMISSAb,.Of HABBAS·CORPlJS-- I Pagc30f19 ---1---­ ­ - -I Received Tim! May. 21 2016 9: 17AM No. 2495 I May.23. 2016 9: 12AM No. 0409 .!~ •.". r'" P. 5 1[""-"..•,.... ,'.; ( I Heather Aronhalt. a cashier t a convenience slore. testified that she saw Mr. Pr4phet • enter the store at 7 a.m. on June 6th, and that he hud a cut on his neck and blood on him! Katie Draughon, Mr, Prophet's ex-girlfriend who lived in Manassas. Virginia, testified that Mr. Prophet contacted her on thl morning of June 6th and indicated thai he was . str~ded in I BerkeJey County, West Virginia an needed a ride. 'Ms. Draughon hired a taxi to transpilr( Mr. . I supplied him with c\o(hes, a cell ph ne, and a twenty-dollar bill and took Mr. Pt'ophet t~ the train . I :' ~~ 1 Joseph Medina and Anicu S all, who was with Joseph Medina on June 5th and ~fh, both testified thai. Mr. Medina received t1Kt messages from Mr. Prophet at around 4:30 a.m. ~~Ying thm he needed help. Joseph Medina testified that he and the petitioner had been friends since ( \ grude school. Mr. Medina testified Ihat he initially ignored text messages but did call the : petitioner later that day. Aocording Il MI'. Medina, Mr. Prophet told him that Ms. Devo~Shire had been going through his pockets nd "stuff happened." Mr. Prophet testified he cam to Martinsburg, West Virginia, at the behest of J04eph I Medina, in May 2010. At that time, r. Medina was staying with a woman named Shan:non.ln , mid-May, Mr. Prophet met Ms. Dev nshire at Shannon's house when Angela came the~ to buy drugs from Mr. Medina. MI'. Prophe and Ms. Devonshire developed It relationship, PdqI' to June 5,2010, Mr. Prophet visited Ms. De onshire's apartment eight or nine times and had sMnt the night there on five or six occasions. Mr. Prophet testified that 01) Iun~ 3rd, Mr. Medina stole Chllreese Davis's l!lPto~ and gave it to Mr. Prophet to hold while Mr. Medina extorted money from Ms. Davis in exchange for ( "" wm_. M<. Proph,' ,','m, "1 "',=, "~, 0' M,. M,diM ." "",,"'iog him i, ii< .'- ~ ~ ~.~ - -- - - , ORDER GF PAiIHIAb-DISM ISSAL-0f' HABEAS eClI11US,-. - ~ -1- - -- I -- Received Time May, 23. 2016 9:17AM No,1 2495 ra sc 4 o f ' 9 - - - - i I May. 23. 2016 9: 12AM ., '.' r No. 0409 P. 6 ..' . ,. ( ,"",li" "h'm' M'.'••,m,," ro,d w".,," M" Moll" '''"'',,,' ,,, 'om, M" Lp,« ,I Ms. Devonshire, and her family family. Mr. Prophet testified that after the argument, heiplaced i the laptop ill some weeds for Mr. M dina to retrieve. Mr. Prophet then culled 911 nllollY;lnously I to reporl Mr. Medina's threats and as directed by the 911 operator to call the Martinsbhrg I Police Department which directed hIm to call the Berkeley County Shel'ift's Dcpal'tmeni. Mr. Prophet testified thai on nne 5th, Mr. Medina called him to wish him a happy , birthday, bul he felt the cull was rna e for the purpose of determining Mr. Pl'Ophet's location. MI'. I Prophet testified that ut 12:30 l1.m., . nJune 6th, Angela woke up Mr. Pl'Ophet to tell hin! there , were two guys nt the door who won d not leave. Aller the men told Mr. Prophet they w1re looking for Ms. Devonshire to coil t a debt, Mr. PI'ophet convinced them to leave, but 1110 men , promised to return. Mr. Prophet inq ired about the two men and Ms. Devonshire denie1 knowing ( them. Mr. Prophet te..qtificd that lat l' 011, as he and Ms. Devonshire were on the porch ~moking . I cigarettes onc oflile men looking fo Ms. Devonshh'e, "Boogy," attacked Mr. Prophet ahd Ms. Devollshire. Mr. Prophet testified t at a fight ensued between him and Boogy who had knife, l I and that the figilt worked its way ins'Ide. According to Mr. Prophet, the other man looki~g to collect a debt from Ms. Devonshire ~ppeared wearing Baltimore Orioles baseball cap ~nd II holding a gun. Mr. Prophet testified ~hat as the two attackers gained control, Boogy too~ him duwnstairs fur the purpose ofbreaki~g in!o Ihe garage to steal something und thllt when;he amved back upstairs in the aPll11meJt, Angela w~s lying on u mattress with her throat slit !lml the three-year-old Andre was beside hellin a pool of blood. According to Mr. Prophel, at (~a{ poinl . ., ( M" 1""'''<"""' '" ~" h' tho, 1 he sprayed the gun-wielding Baltim re Oriolcs-oapped mall with mace and fled the apatment. 'bro,gb ,", WOO", ",," - fl,o! " him ,,~b, ~"' '" ~- ~- - - I --_-=~::----f;lBDER{;)FPJ\lRTIA-bDISMI3SAI;-0r HABBASG0RPl:JS ­ 1 ;) Received Time May. 23. 2G16 9: 17AM No. 2495 PAgeSofl9 I M~y.23. 2016 9:12AM No. 0409 P., 7 , ( voice ofa third man wllOm he thoug t may have been Mr. Medina. Mr. Prophettestifieq that, I upon seeing smoke earning from thJ apal1ment, he nm buck Into the apaltment, gr~bbed; six­ ~,~Id Do ro"o. ""' p",,' hIm o~ A.,,1,', "ro,'" p"'o. W. Pro,ho' POlP"'"'' 'o~"" bang on the Devonshires' door and Then nobody nnswered, he panicked and fled. Mr. ~rophet admitted thaI he did not call emergency services or law enforcement and that hI; lold no !one about tbe events sUl1'ounding the victms' deaths und the tire until be testified ul lrial ! I The prusecutor vigorously Mr. Prophet about a novel that MI'. Prophet wrote sev\md ! """'''" ,"'oJ Em" ,h. +" FI~•• "'>, " "" '.!ft. ,. , p,'o< ," poI,ti",. ,h<,..",Lhod agreed Ihalthe State could not use tlr novel in the Stare's ease-in-chiefbul thul the statr would be free, subject to the rules of evide~ce, to refer to the novel in rebutlal. When the prosecutor questioned MI'. Prophet about the norel. MI'. Prophet's counsel objected on the basis of !he stipUlation and relevancy. The trial court determined that the stipulation did not prev(;)Jli the novel's use during CTOss-examinaliJ of the petitioner and further. that the novel was relFvant to , I the petitioner's credibility. I 111c circuit courl denied Mr. ,'rophet's posl-trial motions for acquittal and for a n~w trial, ! and the court sentenced the petitione to life in prison withour the possibi lity of parole fO:r each ,I first-degree murder conviction and a determinate telm oftwenty years for the arson oon~iction. , with the sentences to run consecutiv~ly. The court also awurded :Ii 11 ,220.61 in restitutio!). Mr. Prophetlhen appealed hij conviction to the West Virb:iniu Supreme Court of:Appeals alleging 1) insufficient evidenee to s pport conviction, 2) undue prejudioe trom CI'OSS­ examination of Mr. Prophet on his Jvel, 3) prosecutor's comments on post-arrest silenc~ violated due process, 4) circuit court lrred by not giving [1l'Offered instruction on opportJnity, , 5) I { prosecutor knowingly presented perj red testimony, 6) prosecutor made improper remar~s. and • I I - -~ - ~~~- - ORDJ>R Or-PAfTIAL DISMISSIIJ.:;Of r!1I:B[lAS·CORPUS-=_==-_=~i_~_- ­ . Received Time May. 23. 2016 9: 17AM No. 2495 I , Pnge6ofl9 ' May.23. 2016 9: BAM No, 0409 P. 8 .' " . ( 7) prosecutor engaged in miscondUCIt. Stale v. Prophet, 234 W. Va. 33, 762 SE.2d 602.lcert. . I denied, 135 S. Ct. 683, 190 1. Ed. 2 396 (2014) l'eh'g denied, 135 S. CI. 1035, 190 L. pd. 2e1 I 900 (2015). The West Virginia Sup me Court affirmed the trial court's convictioll and ltound , I 110ne ofthe purported errol's. [d. I ; I Mr. Prophet then appealed t the United States :''upreme Court which denied thJ writ of certiorari. Prophet v. West Virginia, 135 S. CI. 683, 684,190 L. Ed. 2d 396 (2014). Mr. Prophet petitioned the United States Supremo Court to reconsider and the Supreme Court denied a rehearing. Prophet 1'. West Virginia, 135 S. Ct. 1035, 190 L. Ed. 2d 900 (2015). Meanwhile, MI'. I ~ Prophet petitioned this court for a writ of habeas corpus and on May 12, 2015 Petitione~, by counsel Lisa A. Grecn, filed his Ambnded Petition and Memorandum in Support which ~was timely filed and properly verified bJ the Petitioner. : (, Cllnclusions of Law I Petitions for writs of babeas rorpllS are "civi! in cbaracter and shall under no : circumstances be regarded as Cl'imiT' proceedings or a criminal case." W. Va. Code § !53-4A­ lea); Stale ex rei. Harrison v. Coiner, 154 W. Va. 467 (1970). Persons convicted of crir(les and cun'elltly incarcerated, may file a peLion for writ of habeas corpus contending one or lLre of the following; 1) a denial or infringllment of the petitioner's constitutional rights rendering a conviction or sentence void. 2) lac of jurisdiction, 3) the sentence is beyond tbe authbrized maximum, and 4) "the conviction Jr sentence is otherwise subject to collateral attack u~on any gl'Oul\d of alleged error heretofore JaJlable under the common law or any statutory PJ'o~jsion of this state." W. Va. Code § 53-4A-IJa), Claims that have been "previously and [jnally . adjudicated," either on diroct appeali 01' in a previous post-conviction habeas proceeding, may not .... ~ - -- ~ORDBIl. 01' PARTfA[:J)ISMISSALfl" H!\BBAS-eORPU~ -I ~ Received Tim May.23. 2016 9: 17AM No: 2495 l'age7ofl9 I May.23. 2016 9: 13AM No. 0409 P, 9 , r" -'''''' '.> ( form the basis for habeas relict: w.la, Code §53-4A-I(b); Bowman v. Leverelle, 1691, Va. 589,289 S.E.2d 435 (1982). 1 A claim adjudicated or walv in a previous post-conviction proceeding is precluded . I when the petitioner was either repl'e~en!ed by counselor knowingly waived his right to be represented by counsel and the pr04eding was a complete omnibus htlbeas corpus pl'OCleding. Losh. McKenzl'e, 166 W. Va. 762.b77 S.B.2d 606 (1981); Gibson v. D<rie, 173 W, Va 681,319 when at some point in the proceedi s which resulted in the conviction and ~cl1tence .. l,or in any other proceeding 01" proceedings instituted by the petitioner to secure relief from hiJ conviction or sentence, there was a ~eCiSiOl1 on the modts thereof after a full and fair helring thereon ... unless said decision lip the merits is clearly wrong." W. Va. Code § 53'4~.I(b) 11 ( I Nonetheless, "W. Va. Code, 53-4A-!,d) allows a petition for post-conviction habeas eor~us relief to advance contentions Of grounds hioh have been previously adjudicated only if thosJ COlncntions or grounds are based UJlbn subsequent court decisions which impose new Jbstantive I or procedural standards in criminal roceedings that are intended to be applied retroactJely." i Bowman v. [.everette, 169 W. Va. 5 9,589,289 S.E.2d 435, 436 (l982). A claim waivJd is any ground for habeas relief that could Have been advanced on direct appeal or in a previou) post­ conviction proceeding but was not a6vanced. W. Va. Code § 53-4A-l(c). Should a petitioner .h WlS ' 10 raise a grounclwalYe I ' d'IU a 8\1 bsequent proceed ' "It IS t he pellhoner mg, .. L that bears i',e burden of demonstrating thal such Jaiver was less than knowing and intelligent. Ford v' Coiner, 156 W, Va, 362,196 S.E.2d 91 (19J.2). I A habeas corpus pmceeding 's markedly different from a direct appeal or writ 0ierror ill that only errors involving constHuti llal violations shall be reviewed. Syl. Pt. 2., Edwa+s v. -~! - ­ " > -~ -­ -­ --­ - -­ - - - -­ -ORDI!R OF P1I'RTJAI:.I"llSMISSA:GDF-I1ABEkS CORPUS­ .; Received Time May. 23. 2016 9: 17AM No.'2495 I Page8ofl9 I May, 23. 2016 9: 13AM p, 10 ( Levere/Ie, 163 W. Va. 571 (1979). Petitions for writ of habeas corpus are governed in nart by West Virginia Code §53·4A·1, The Ilabcas corpus statute "contemplates the exercise orl discretion by the court." P«rdue v. oiner, 156 W. Va. 467 (1973). The circuit court dehying or I granting reHefin a habeas corpus pc ceeding mllst make specific findings offHel and cdnohlsions oflaw relating to each contention raIsed by the petitioner, Slale (IX rei. Watsoll v. Hili, 2~O W. Va. 201 (1997). To sustain his Petit) n, Petitioner must prove his claims by a prepondJunce of ~~W~~ "The COUIt shall prepare and enter an order for summary dismissal of the petitio. ifthe I contentions in faet or law relied upo in the pelition have been previously and finally JjUdicated or waived." W. Va, R. Habeas 4(c).\v hat's more, if "the petition contains a mere recitalion of grounds without adequate factual su~port. thc court may enter an order dismissing the P~lition, ( witho,lf prejudice, with directions th~t thtl petition be refiled containing adequate factual support." ld. Flnully, for "all petitiot not dismissed summarily as provided in Rule 4(ct the court shall order the respondent to t an answer...n W. Va. R. Habeas 4(d). 'l If the court upon review oft e petition, exhibits, alIi davits, or other documental'. evidence is satisfied that petitloller i' not entitled to l'elief, the court may dellY a petitio1 for writ of habeas corpus without an evident ary headng. Syl. Pt. 1. Perdue v. Coiner. 156 W'i8. 467 (1973); Slale ex reI. Waldron v. Seo I, 222 W. Va. 122 (2008). Upon denying a petition for writ ,fl."... ro~"" II. "'" m," m+ _!fio fi,dI,,, ,f mot Md ooooh"'"'' ,fl.w J"""" contention raised by the petitioner, JlId must also provide specific findings as to why ani evidentiary hearing was unnecessal . By!. Pt. L Slate ex reI. Wafson v. Hill. 200 W. Va. 201 (1997); Syl. Pi. 4., Markley v. co/Jail, 215 W. Va. 729 (2004); R. Hab. Corp. 9(a). ,:( ANALYSIS May. 23. 2016 9: 13AM • '. J' , . ( 1) Cumulative ct'rOI'$, Respondent is directed to ar swer Ground 1 as it pertains to cumulative errors regarding I ' ineffective assistance of counsel w thin 90 days of the date of this order with either ~ brief or proposed ol'der, I, 2) GrQund 2 - publicity unduly influenced jnry - is DISMISSED b~ause the Petitioner waived tbis ssue by Ilot raisillg the Issue chller In trial or Ion direct Q~L I Mr. Prophet contends that I e was denied his right under the West Virginia atd United Stales Constitutions to a fair and impartial jury due to pre-trial and trial publicity. Petiti,ner cites that many members of the jury panbl were tainted by twos years of media coverage. In support of this claim, Petitioner cites voir dt (hat many potential jnrors had beard of the case Jnd cites a pre-Irial public opinion survey of erkeley County residents demonstrating public 110WlCdgC ( and opinion oflhe case. W. Va. Code Ann. § 53AA-~(c)states inpeltinentpart: [A] contention or conteuti4ns and the grolmds in fact or law relied upon lin support thereof shall be deqned to have been waived when the pelitioner could have advanced, but intelligeo1tly and knowingly failed to advance, such contcllti!m or contentions and grounds Heforc trial, at trial, or on direct appeal (whether or dot said petitioner actnally too~ an appeal), or in a proceeding or proceedings o~ a prior petition or petitions filtd under the provisions of this article, or in any ot~er proceeding OJ' proceedings nstiMed by the petitioner to secure relief from his conviction or sentence, lml 5S such contention or contentions and grolmds !he such that, under the Constit (jon of the Ullited States or the ConstitutiQn of t~is l State, they cannot be waivekl under the circumstances giving rise to the aneJbd waiver. "","." 'M. 00",00"'" " .", " " I' Here, Petitioner waived this laim of errol' by knowingly nnd intelligently failin to 'Woo I. A"oro ""y, Oro,"" 2I. DISMISSED. 3) Gmund 3 - trial Coud's failure to strike two jurors for cause - is DISMISSED :( because the Petitioner [I1Ilvcd this issue by not raisillg the issue either ~ trial 01' . -­ on direct appeal. I - ..•.- -. - -. -_. -- -- - - -- ORDER-or PI\[{TIAL-orSMISSi\:C'OF HABE,ASCORl'US- I -1- - - .­ i'-Received Time May. 23. 21)16 9: m.M No: 2495 Pag.IOof19 ----- I Ma'y, n 2016 9: 13AM No, 0409 p, 12 / t Petitioner argues thnt the tri I Court should have struck two jurors for cause. Petitioner I alleges he had 10 wasle one of his trikes on one of the jm'Ol's and that the other juror:ended lip sitting on the case. Petitioner's trial 'ounsol moved to strike both jurors for cause. The Court notes that: j I A trial court's failure to rem ve n biased juror from ajury panel does not violate a defendant's right to a trial ,y an impal1ial jury as guaranteed by the Sixth ahd Fourteenth Amendments to the United States Constitlltion and by Section l4 :of Article !II of the West Virginia Constitution, In order to succeed in a claim t~at his or her constitutional rigljt to an impartial jury wus violated, a defendant mlls! affirmatively show prej Udic1" ! Syl . Pt. 2, Stale ex rei. Farmer v. 'cBrlde,224 W. Va. 469,686 S.E.2d 609, 612 (2009); Syl. I PI. 7, Slate v. Phillips, 194 W.Va. 5 9,461 S.E.2d 75 (1995); Syl. Pt. 6, State ex ret, QI}inolle.l')1, I Rubenstein, 218 W.Va. 388,624 S. .2d 825 (2005). PetitioneralJeges prejudice, but offers little to affirmatively show prejudice. I; ( Nonetheless, Petitioner wai ed this purported euo!'. W, Va. Code Ann. § 53-4AH(c) I I stales in pertinent part: I I I [a] conlention or contention and the grounds in fuct or law relied upon in SUPP/llt tbereof shall be deemed to have been waived when the petitioner could hw~e advanced, bul intelligently ~nd knowingly failed to advance, such contention!or contentions and grounds belore trial, lit trial, or on direct appeal (whether or not said petitioner actually too~ an appeal), or in a proceeding or proceedings oJ a prior petition or petitions fitI'd under tbe provisions of this article, or in any ot~er proceeding or proceedings Instituted by the petitioner to secure relief from his conviction 01' sentence, unless such contention or contentions and grollnds ire such that, under the Constit~,tion of the United States 01' the Constitution of this State, they cannot be waivtl under the Ch'ctlUlstances giving rise to tbe allei,ed waiver. I Here, l'etitioncr waived this Ilaim of el1'OI' by knowingly and intelligently fuilin! (0 advance Illis contention on appeal. Accordingly, Ground 3 is DISMISSED. Ir :. ( 4) Ground 4 - prosecution's use of false testimony - is DISMISSED beJllllsc this issue was fully and fin~lIy adjudicated on appeal. ---- - - - - - -- oRDl>Rpn-ARTIALDlSlVIISSi\r;-onlABIfAS CORPUS"--_ _ _ -_-r-_-_· Received Ti~e May. 23. 2016 9:17AM No.'2495 Pagcllofl9 . I May,23, 2016 9:14AM No. 0409 P, 13 .~{:\? :. r It "'., '. I ( \ Petitioner asserts that he war deprived of his constitutional right to due proees! and to a fair trial when the prosecutor used Ise testimony. A three part test applies a Pl'osecutQr's use of ; false testimony; a defendant must prove 1) presentation of false testimony, 2) prdsecutor's . I knowledge offulsity, and 3) mater al effect on verdict. Siale v. Prophet, 234 W. V~. 33,762 S.E.2d 602 cert. denied, 135 S. Ct.l83, 190 L. Ed. 2d 396 (2014) reh 'g denied, 13S s.lcI. 1035, 190 L. Ed. 2<1 900 (2015). The welt Virginia Supreme Court, on the appeal of tllis cAse, using "" " "• ..,,,, ",' fu"",,, ••\ '"I Proph« f,iI" " ""'w <hot testimony.ld. 234 W. Vn. at _,762 S.E.2d aI614-15. Ih. pro~oo\~ ,"~+'I f"'" I Because the issue of the ptoseclltOI' using fulse testimony has been fully a~d finally adjudicated on tile merits and the delision is not clearly wrong, Ground 4 is DlSMISSJD. ( 5) Ground 5 - pl'OSecutIO~'S impeachment of Petltioncr 011 post-arl'cst Silence - is DISMISSED because tills issue was fully llnll finally IIdjudlclltC(l on npp~al. Pelitioner «s~erls that he waJdeprived of his constitutional riglrt to due process Jnd to II . I fulr trial when the prosecutor impea hed Petitioner through unfuir means by questioning i j Petilioner about post arrest silence. ' n appeal of Ihis case citing Syl. Pt. 1, Slate v. Boy4 160 I W.Va. 234, 233 g.E.2d 7 J 0 (1977), Ile Wesl Virginia Supreme Conrt noted that Under the Due Process Clau e of the West Virginia Constilution, Article m. . Section 10, and the presump ion of innocence embodied tberein, and A11icle Jll, ; Section 5, relating to the rigljt against self-incrimination, it is reversible error fo~ the prosecutor to cross-exal~itul a defendant in regard to his pre-trial silence or 19 comment on the same to tbe fUry. I Syl. PI. 4, Slate \" Prophet, 2.14 W. ra. 33, 762 S.E.2d 602, cer/, denied, 135 S. Ct. 6831190 L. Ed. 2d 396 (2014) reh 'g denied. 13 S. Ct, 1035, 190 L. Ed. 2d 900 (2015). However, ~e Supreme Comt noted that .me-anes! silence is distinguished from llQst-ar:rest silence, befause " ( impeacbmcnt by use of pre-OlTCs! si ence does not violate due process or the right to reri1ain I :.-~-. - ~~ - - ~~ - - - - ORDERor"-P~1<flAJ,DlS!Y!lSSALOl'ffeBB.AS-CORPUS- ~ -l- ----~ ­ 'Received Time May. 23. 2016 9: 17AM No. 2495 I I Page J2ofl9 - , ~dY. 23. 2016 9:14AM No, 0409 p, 14 ····r' ". '.'.,~' ,'.! ... ( Silent: ld. (Citing5~ale v, WalkeI', 20~ W.Va, 415.419.533 S,E,2d 48. 52 (2000); JenkiT v. Andmon. 447 U.S. 23 1.240, 100 slct. 2124.2130.65 {"Ed.2d 86. 96 (1980)). ; On appeal the West Virgini!! Sllpreme COU1't using the same record that is pl'eseJtly I before this Court found that the pro ecutor did not improperly l1se Petitioner's post-arre~t silence I I to impeach Petitioner on cross-cx!trr ination. Accordingly, this issue was fully and finall¥ ", ""'" ~", Om,"" , i. D1sr adjudicated on the merits. Because tris was decided on the merits on appeal and the dedisiOIl was 6) Ground 6 - trial cour['s failure to cxducte the introduction of fictional book authored by Petitioner - Is DISMISSED because this issue WIIS fully Il~d finally ndjudiea ted Oil IIppelll. Petitioner asserts that he was deprived of his constitutional rights to due process and ( equal protection when the trial colrt fuiled to exclude reference to and cross exami1natioll on p,u"",,", fi.i"., '"m. bo,k E+' "" F;roo' 8",,, D"Y' ,. ,h, LV.· Po,;""" m'~ ." '0, argument on uppeal to the Sl1prclrje Com1 of Appeals of West Virginia.. The Suprcrc Court found, citing Sy\. pI. 4, Slate !" dardll./J. 142 W.Va. 18,93 S,E.2d 502 (1956), thrt "c!'Oss­ ""mi,.i" of , wi"'~ i, , m.+ wi"i, <h, ""ml di.~ti" of <h, "'" 'Om, r' ,. ". exercise of such discl·etion. in excluding or permitting questions on cross-examination'l its action t. ,m' ,wi, ooh], ~"" " " " of roo"", "'= "' i~""",." s, I. " 3, 8"" ,. ''?'', 234 W. Va, 33, 762 S.R2d 602, cerl. denied, I3S S. Ct. 683, 190 L. Ed, 2d 396 (2014) reh 'g denied, 1:15 S. Ct, 1035, J90 L. Ed. 2d 9bo (2015). The Supreme Court fOllnd that the trial court's decision to permit the State to cros~-el(amine Petitioner on his novel did not result in a~ abuse or injustice, nor did it result in undue ~rejudice to Mr, Prophet. ld, Thus, because the isshl.' of trial 0( ... r ­ - - - - - - ORDER"Of PA:RTI)\t DISMISSAI:;'0I' HABEAs-eORPI:JS "'Received Time May, 23. 2016 9:17AM NO,' 2495 P a g e l 3 o f I 9 - r " - ' - - I : ," , M"y.23. 2016 9: 14AM ,r' """":,., -', " No. 0409 ~ P. 15 '.<> ( fully nnd finally adjudicated on (h merits, and the decision is not cleurly wrong, G~ound 6 is I DISMISSED. I , I I 7) Ground 7 - Trial Cou t's failure to give jury instruction tllat opporturtity lI[one is insufficient to prove guilt, - is DISMISSED because this Issue was fully and filially adjudicated on ppea!. I Petitioner asselts that he Wi deprived of his COl1stitutioIJllI rights to due pro~ess and a fair trial when the trial court refused to give a jury instruction that opportunityl alone is insufficient to prove guilt. petitiler alleges that the trial court erred by refusi1s a jury ld3 W.Va. 630, 635, 259 S.E.2d 829, 832 (1979), JhiCh says '"+,. instruction from State v. Dobbs. •• "I.)m' f ,f ""","'oity " ,rim< '" 0", wm",", " ~.bI"" goll'i tho ,,",," musL exclude all reasonable opporturity by others Lo have committed it," (Citations omred). On appeal in this case, the ~upreme Court of Appeals of West Virginia found "lhallhe ( l circuit court's refusal to give the inttruction from Dobbs is not error because tbis langvage is no longer II coneet statement of the llW'" Swre v. Prophet, 234 W. Va. 33, 762 S.E.2dI602, 614 cerro denied. lJS S, Ct. 683, 190 L. Ed. 2d 396 (2014) reh'g denied, 135 S. Ct. 1035, J!90 L. Ed. I 2d 900 (20J5). The Court noted th- t Dobbs was overruled in Slate v. Guthrie, 1941.va. 657, 461 S, E,2d 163 (1995). fd. The Supreme Court found thaL the trial comt's decision not to give the jproffered I instruction on opportl\nlty was n terror. fd. Thus, the issue has been fully a~d finally adjlldicated on the merits, and the dListon is not clearly wrong. Accordingly, this COII~ will nol further analyze this Issue, and Grout 7 is DISMISSED. ! 8) Ground 8 - proseclItJial misconduct - is DlSMlSSED because this Lue was fully lind finally adjudi atcd on appeal. I .: ( ', > -- ~ -- - - - -- - -- ~ ORDllR-OFI'ARTlkl:;DlSMISSAl:;{)F HA[jeA~eORPI:lS - ' T ­ --~ ­ - -- ", Received T;me May, 23, 2016 9:17AM No. 2495 Pagel4ofl9 I ~ay 23. 2016 9: 14AM " ( a~sistance Petitioner asserts thftt he waJ denied his rights to due process, to a fair trial, to of eounsel and to freedom from sel~illerlmil1atioll because of multiple instances ofPros~cutorial misconduct. I First, Petitioner alleges that he prosecutor's inquiries into his post arrest silence were improper. This is a restatement of Jround 5 which the Court DISMISSES as explained above. As to tile other nine allegati~ns of prosecutoriaI misconduct, Mr. Prophet makes'onlY conclusory statements of the grounds without showing evidence of actual prejudice. The Court notes the unique Jile a prosecutor has in O\1r system of justice: , The prosecuting attOl'lley qccupies a quasi-judicial position in the trial of! a crimin"l case. In keeping with this position, he Is required to avoid the role of a partisan, eager to convict, ~nd must deal fairly with the accused as well as the other pruticipants in the Idal. II is the prosecutor's duty to set a tone of faimdss and impartiality, and while ~e may and should vigorously pursue the State's ca~e, ill so doing he must not aba don the quasi-judicial role wilh which he is cloaked ( under Ihe law. i Sy!. Pt. 3, Siale v. Boyd, [60 W,Va. 34,233 S,E,2d 710 (1977), However, a conviction will not be overturned by because ofremurk mHde by !l prosecutor without clearly prejudicing ~e jury. Siale v. Hamrick, 216 W. Va. 477, 478-79,607 S,E,2d 806, 807-08 (2004), Because the Petition contfliljs a mere recitation of grounds withoufadequate fnerual support and no showing ofprejudic6, Ground 8 is DISMISSED. 9) Ground 9 - Trial coult Misconduct - is DISMISSED for the reasons/set forth below. I Petitioner asserlS that he w1 denied his rights to due process, to a fair trial, to ,siSlancc ofcOllnsel, freedom from self·incrimination, and equal protection because the Ifial COUlt engaged , I in misconduct. i First, Pelitionel' alleges that lhe trial court's comments 011 the udtl1issibility lind Jrobative , ,( value of evidence at a pretrial hearil!g constitllte misconduct. Petitioner fuils to allege tJllt these ;,,:,:-.-' - -~ -- - - - . - - - ORDER 0P JR:TlAb DfSMISSAL 0f-HABEAS GORPlJS ..-~------ 1 Page 15 of 19 II -- - - -, f"'Received Time May. 23. 2G16 9:17AM No. 2495 " ! I ~ay, 23. 2016 9: 14AM p, 17 ': ~', '( .. NQ, 0409 .: ~ ',- '-\ ( comments prejudiced Petitioner, The comments were not made in the presence of the jury and S1'e the very types of comments that'ajlldge makes when determining the admissibility if . evidence, Accordingly, this is just a mere recitation of a ground without providing adeq~ate factual support. Thus, Ground 9A isIDlSMISSED, Second, Petitioner nlieges thbt the trial court engaged in miscollduct when il rej,cted u plea ugreement by one of the state's witnesses, Joseph Medina, in an effort to coerce Mt. Medina into cooperating with the state, Petirioner fails to cite allY authority on how the judges use of ' ' ' lioo i, "",Ii",'" nj",tin, j,I" ~,.iM~m;~®""', -~" p."~~laHs show any prejudice, Petitioner state1 that the pica agreement was "almost two years sin e Mr. to Mediou's initial interview with the r1ice in which Mr. Medina practically benl over batkwards in his attempts to implicate the Petitioner in the crime at issue," Amended Petition at 66l ( M" M'm""" "",ody "',' 0'" +kw'' ' '0 imp"~" ", "'itlo,,,, tln" th,,,;, ,J demonstration of prejudice. Accordingly, Ground 9B is DISMISSED. Under Ground 9F, pelitione~ alleges that the tone of the trial court when direoting Petitioner to answer a question posch by the pl'OSeclltor constituted misconduct and oaJed P,1i tim. Proj"""', Pol iti"" ,i'" " ru" " "dm m, Coo. ,1 0 I."" DISMISSED, ,,~ 0'00", rI i, Grmmd 9H alleges that the tial court coached the prosecutor, but provides no supporting fu," " ",port ,,,," ",'m, G~ '" l' ",~ ,I tM, ,'" ",I '00" ",..,' i, "'"bflo M',,fbiM" but provides almost no facts to SllPprrt the claim. Thus, Grounds 9H and 91 are DISMISSED. Finally, the remainder of peTioner's allegations of judicial misconduct llre mel'~ recitations olher purported errors inqluding: misconduct for failing to strike 2 jurors for bause ... ' ( (GI'Ound 3 Slpr{f), misconduct by p~mitting the introduction of Petitioner's fictional bJOk into ,.,~- ~ ~ - --- - -- -- - - GRDBR·QfLMR4'!AL. DlSMISSAL,OF HABBAS,CORP.U",S==~~=i-'~=-"'""""' . ·----r~-P.ge liiofl9 '. ·,.:Received Time May, 23. 2016 9: 17AM No, 2495 I " . t,.l-:;'. ... ~-. ( evidence (Ground 6 supra), miscon uct by permitting prosecutor to inquire about post­ rrest silence (Ground 5 supra), misconduct by falling to correct prosecutorial misconduct (G!ound 8 supra), Because these allegations 8rf dismissed above, there was lIO judicial miscollducl, For that reason and because adequate faets Q~mOnSlraling prejudice were not alleged these grolds are DISMISSED. I I I 10) Ground 10 - Insufficient evidence to support murder conviction - is DlSMISSED because U\.is issne was fully lind linally adjudicated on ullpbal. Petitioner alleges that there Las insufficient evidence to convict him at trial. pjtitioner is not presenting newly discovered JVidence; rather he is simply contesting the SUffirienCY of evidence at trial. The Supreme cojrt already addressed this argument and found that jSUffiCient evidence existed (0 support II murder conviction. State v, Prophef, 234 W. Va, 33, 762 S.E,2d ( 602,609 ""'. d,,',,' 135 S. CI. +- 190 C Ed. 2d 396 0014) roh'g d"oJ,. '" S. Ct. 1035, 190 L. TId. 2d 900 (2015). Thus, the issue has been fully and finally adjudicated on the merits, and the decision is not clearly wron~. Accordingly, this Court will not further analyze Ihis issue, and Ground 10 is DISMISSED, j I 11) Ineffective assistance (l Mal counsel. """,,''''' I, dI~",d with either II brief or proposed order; 10 +"'" " Orowul 11 wltW,.., """ 0,"" d,~ of r" I ,ro" I I 12) Ineffective assistance O!lIPpeuate counsel. ! Respondent is directed to re pond to Ground 11 within 90 dnys of the date Of~hiS order with either a brief or proposed olde r . 13) The COllrt dismisses Ground 13 - .!<'allure by Supreme Court of Appeal~ of West . Virgin ill to meaningfu ly analyze trial errors on ~ppCl\l - becnuse th~re is no evidence to support the claim. , Received Time May, 2l 2016 9: 17AM No, 2495 ! '.:,,~ay,23. 2016 9:15AM . '. No. 0409. ,Po 19,.... ,),<'," ',- , . . .• 'y ~ 1.' , ~ ~ ( Petitioner, again wishes to 'eargue the same purported errors that have been argued and reargued in various stages of this c se and argued multipl~ differ~nt ways above. Here, Petitioner does not provide even the slightest bit of legal 01' factual reasoning that would permit rhiS COUlt to in essence reverse the Wes Virginia Supreme Court Accordillgly, Ground !3 is DISMISSED. 14) The Court dismisses G ound 15 - mental competency lit time of crime ~ bCCHUSC the Petition contllins III mere recitatlon of this ground without any factual support. I 15) The Court dismisses G ound 15 - mental competency to stand for trial because r the Petition contains II mere recitation of this ground without lIny factual support. 16) The Court dismisses Ground 16 - prosecution suppression of exculpatory ( evidence - beClluse the Petition contains II mere recitation of this groul\~ without any factual support. l I?) The Court dismisses IGround 17 - prosecution falsification of tnnscript ­ because the Petition ontains II mere recitation of this ground wi~hout IIny factual support. I 18) The Court dismisses G, ound 18 - no preliminary hearing - because contains a mere recitation of this ground without any factulIl support. t~e Petltioll 19) The Court dismisses ground 19 - unrah' composition lind procedure of grllnd jury - because the Pctl!ion contil ins a mere rellitatioll of this ground without any factual support. I 20) Th0 Court dismisses Ground 2() - dcfects ill tbe indictment - bebouse the Petition !.'ontflins a mer rccitfltion of this ground without any factual ,tipport. 21) The Court dismisses /Ground 21 - improper venue - because thl Petition contains a mere recitation of this gl'ound without any e factual support, I 22) The Court dismisses Ground 22 - pre-indictment dclay- because thb Petition . contains a mere recitafion of this grollnd without IIny tiletuDI support. ORDER OF PARTIAL DISMISSAL OF I1A13BA.-"S"'C"'O"'.R..P""'U"-'S'--_ _ .~+_-- ,. I Pel!.~ 180fl9 r; Received Time May, 23. 2016 9: 17AM No, 2495 I 2016 9: 15AM , .~ , .)0,0409" P. 20 ,. ( 2J}The Court dismisses froulJd 23 - refusal to subpoena witnesses - because.the Petition contains II mc,e recitlltion of this ground without any factual s~pport, 24) TIle Court d Ismlsse! G~ollnd 24 - refusal to turn over witness notes aftt.· witness bas testified - becaus~ the Petition cOlltains II mere recitation of this ground wilhon I lIny factual support, 25) The Court dismisses IGrOUnd 25 - improper nse of informers to fonvkt ­ because the Petition contains II mere recitation of this ground without any factnal support. I l Conclusion Grounds 2. through 10 and I though 2S are DISMISSED, The state is ORDERED to answer and substantively respond tlI Grounds 11 and 12 and in limited part to Ground 1within 90 days of tbis Order. These issues /wm not be further addressed by this Court in any proceedings. Petitioner may file a slott reply bl'ief withiti 30 days of 0 response being ~Ied. ( Parties arc encouraged to provide t. e Court with digital and searchable copies of briefs and I proposed or<lers. The Court withholds gl'antitlg a bearing until all brief; have been filed. Th, C""k ,h.U '""' ilii. +" g ofili, d", .rin", bol~ ,,' "",.,,""" Lot'" copies to nil counsel and parties of pleord, including the Prosecuting Attorney for Ber~lley COllnty find Lisl! A Green, Esq" c~unseJ for tile Petitioner. I I ! _ (. ENTBRthis~dayofdJv\'t5 rl!20L4. I 1 J ~_ ....__._ _ _ _..~ _ I ORI1ERJlF_PARTlALDlSMISSALOF HABEAS CORI!US-·- - - , - - _ .. I rage \9 ofl9 ; . d T: Recelve ,:me May, 23. 2016 9: 17AM No, 2495 ( IN THE CIRCmT COURT OF BERKELEY COUNTY, WEST VIRGINIA STATE OF WEST VIRGINIA, ex reI ANTONIO PROPHET., o"'" ,-::.: (; '-'~ Petitioner, .!~ -J -0 v. CIVIL CASE NO. lS-C-66 ".:::<: ',-­ ~ ~.'.::~ Underlying Criminal Case No.: y2F-61 . ' .,,~ JUDGE LORENSEN '." ::: -< DAVID BALLARD, Warden, Mt. Olive Correctional Complex, Respondent. ORDER DENYING PETITION ( Antonio Prophet, by counsel, Lisa A. Green, petitions the Court for a writ of habeas corpus seeking a new trial: 'Ine Court, on June 24, 2015, dismissed 23 of Mr. Prophet's 25 claims for relief and ordered the Respondent to answer the remaining two claims - ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The Respondent answered on September 21, 2015, and moved to dismiss the two remaining claims. Mr. Prophet Replied in support ofthe Petition on October 22, 2015. FACTS In 2012, a Berkeley county jury convicted Mr. Prophet of murdering his girlfriend Angela Devonshire and her three year old SOlI by setting her apartment 011 fixe. At trial, Mr. Prophet was represented by Cl'aig Manford and Christopher Prezioso. In total, Mr. Prophet was ( convicted oftwo counts offirst degree murder without a l'econunendation of mercy and one count of arson. Ms. Devonshire.lived in a garage apartment adjacent to her parent's house with , , ,,­ ( her two children: Andre, the other victim, who was three years old, and Daronte, who was six weeks old at the time of the offense. The garage apartment was located at the end of Angela's parents' driveway about 75 yards from her parents' house. The evening of June 5, 2010 Petitioner went to spend the night at Ms. Devonshire's apartment. Sidney Devonshire m, Ms. Devonshire's brother, testified that he saw the Petitioner and Ms. Devonshire at the apartment at about 9:00 p.m., on June 5. Eliz.abeth Kay Devonshire, Angela's mother, testified that she awoke at 3;00 a.m., on June 6th and looked out the window toward her daughter's apartment. She testified that everything was quiet and that she noticed that her daughter's curtains were pulled tight. At 4:36 a.m. on June 6th a passing motorist called 911 and reported that Ms. Devonshire's apartment was on fire. A fire marshal testified at trial that the fire was incendiary in nature and originated in the middle ofthe living room floor of the ( apartment. Angela and Andre died in the fue and their bodies were found in the burned apartment. Although Andre's body was too badly burned to determine a cause of death, the medical examiner determined that Angela's throat was slit and that she died prior to the fire. 100 infant, Daronte, was found alive on Angela Devonshire's parents' patio in blood-spattered clothing. The blood on the baby's clothing was later determined by an expert to be the petitioner's. After the fire, Petitioner fled to North Carolina where he was arrested and had injuries on his hands. Heather Aronhalt, a cashier at a convenience store, testified that she saw Mr. Prophet enter the store at 7 a.m. on June 6th, and that he had a cut on his neek and blood on him. Katie Draughon, Mr. Prophet's ex-girlfriend who lived in Mauassas, Virginia, testified that Mr. Prophet contacted her on the moming of June 6th and indicated that he was stranded in ( Berkeley County, West Virginia and needed a ride. Ms. Draughon hired a taxi to trausportMr. ORDER DENYING PETITION FOR HABEAS CORPUS Page 2 of14 n"'7! ( Prophet to Virginia. Ms. Draughon testified that she met briefly with Mr. Prophet in Virginia and supplied him with clothes, a cell phone, and a twenty-dollar bill and took Mr. Prophet to the train station. Joseph Medina and Anica Small, who was with Joseph Medina on June 5th and 6th, both testified that Mr. Medina received text messages from Mr. Prophet at around 4:30 a.m. saying that he needed help. Joseph Medina testified that he and the petitioner had been friends since grade school. Mr. Medina testified that he initially ignored text messages but did call the petitioner later that day. According to Mr. Medina, Mr. Prophet told him that Ms. Devonshire had been going through his pockets and "stuff happened." Mr. Prophet testified he came to Martinsburg, West Virginia, at the behest ofJoseph Medina, in May 2010. At that time, Mr. Medina was staying with a woman named Shannon. In ( mid-May, Mr. Prophet met Ms. Devonshire at Shannon's house when Angela came there to buy drugs from Mr. Medina. Mr. Prophet and Ms. Devonshire developed a relationship. Prior to June 5,2010, Mr. Prophet visited Ms. Devonshire's apartment eight or nine times and had spent the night there on five or six occasions. Mr. Prophet testified that on June 3rd, Mr. Medina stole Chareese Davis's laptop and gave it to Mr. Prophet to hold while Mr. Medina extorted mOney from Ms. Davis in exchange for her computer. Mr. Prophet claims he became angry at Mr. Medina for involving him in the extortion scheme and an argoment ensued wherein Mr. Medina threatened to harm Mr. Prophet, Ms. Devonshire, and her family. Mr. Prophet testified that after the argument, he placed the laptop in some weeds for Mr. Medina to retrieve. Mr. Prophet then called 911 anonymously to report Mr. Medina's threats and was directed by the 911 operator to call the Martinsburg Police ( Department which directed him to call the Berkeley County Sheriff's Department. .ORDER DENYING PETITION FOR HABEAS CO~RP=U",-S_ _ _ ~_ __ P e30fl4 J •• ( Mr. Prophet testified that on June 5th, Mr. Medina called him to wish him a happy birthday, but he felt the call was made for the purpose of detennining Mr. Prophet's location. Mr. Prophet testified that at 12:30 a.m., on June 6th, Angela woke up Mr. Prophet to tell him there were two guys at the door who would not leave. After the men told Mr. Prophet they were looking for Ms. Devonshire to collect a debt, Mr. Prophet convinced them to leave, but the men promised to return. Mr. Prophet inquired about the two men and Ms. Devonshire denied knowing them. Mr. Prophet testified that later on, as he and Ms. Devonshire were on the poreh smoking cigarettes one of the men looking for Ms. Devonshire, "Boogy," attacked Mr. Prophet and Ms. Devonshire. Mr. Prophet testified that a fight ensued between him and Boo gy who had a knife, and that the fight worked its way inside. According to Mr. Prophet, the other man looking to ( collect a debt from Ms. Devonshire appeared wearing a Baltimore Orioles baseball cap and holding a gun. Mr. Prophet testified that as the two attackers gained conn:ol, Boogy took him downstairs for the purpose of breaking into the garage to steal something and that when he arrived back upstairs in the apartment, Angela was lying on a mattress with her throat slit and the three-year-old Andre was beside her in a pool of blood. According to Mr. Prophet, at that point he sprayed the gun-wielding Baltimore Orioles-capped man with mace and fled the apartment. Mr. Prophet testified that he then ran through the woods, shots were fired at him and he heard the voice of a third man whom he thought may have been Mr. Medina. Mr. Prophet testified that, upon seeing smoke coming from the apartment, he ran back into the apartment, grabbed six­ week-old Daronte, and placed him on Angela's parents' patio. Mr. Prophet purported to then bang on the Devonshires' door and when nobody answered, he panicked and fled. Mr. Prophet ( ORDER DENYJNG PETIDON FOR HABEAS CORPUS Page 4 ofl4 ( admitted that he did not call emergency services or law enforcement and that he told no one about the events surrounding the victims' deaths and the fire until he testified at trial The prosecutor cross examined Mr. Prophet about a novel that Mr. Prophet wrote several years earlier titled Enter the Fire: Seven Days in the Life. In a prior stipUlation, the parties had agreed that the State could not use the novel in the State's case-in-chief, but that the State would be free, subject to the rules of evidence, to refer to the novel in rebuttal. Whilll the prosecutor questioned Mr. Prophet about the novel, Mr. Prophet's counsel objected on the basis of the stipulation and relevancy. The trial COUlt determined that the stipUlation did not prevent the novel's use during cross-examination ofthe petitioner and further, that the novel was relevant to the petitioner's credibility. The circuit court denied Mr. Prophet's post-trial motions for acquittal and for a new trial, ( and the court sentenced the petitioner to life in prison without the possibility of parole fur each first-degree murder conviction and a determinate teon oftwenty years for the arson conviction, with the sentences to run consecutively. The COUlt also awarded $11,220.61 in restitution. Post-Trial Litigation Mr. Prophet then appealed his conviction to the West Virginia Supreme Court of Appeals alleging 1) insufficient evidence to support conviction, 2) undue prejudice from cross­ examination of Mr. Prophet on his novel, 3) prosecutor's eomments on post-arrest silence violated due process, 4) circuit court erred by not giving proffered instruction on opportunity, 5) prosecutor knowingly presented perjured testimony, 6) prosecutor made improper remarks, and 7) prosecutor engaged in misconduct. State v. Prophet, 234 W. Va. 33, 762 S.E.2d 602, cert. denied, 135 S. Ct. 683, 190 1. Ed. 2d 396 (2014) reh 'g denied, 135 S. Ct. 1035, 1901. Ed. 2d ( _ _ _ORDER DENYING PETITION FOR HABEAS CORP'¥'U'"'S'--_ _ _ _ _ _ __ ( 900 (2015). The West Virginia Supreme Court affinned the trial court's conviction and found none of the purported errors. ld. Mr. Prophet then appealed to the United States Supreme Court which denied the writ of certiorari. Prophet v. West Virginia, 135 S. Ct. 683, 684,190 L. Ed. 2d 396 (2014). Mr. Prophet petitioned the United States Supreme Court to reconsider and the Supreme Court denied a rehearing. Prophet v. West Virginia, 135 S, Ct, 1035, 190 L. Ed. 2d 900 (2015), Meanwhile, Mr, Prophet petitioned this court for a writ ofhabeas corpus and on May 12,2015 Petitioner, by couusel Lisa A. Green, filed his Amended Petition and Memorandum in Support which was timely filed and properly verified by the Petitioner. Subsequently, Mr. Prophet petitioned for a writ of habeas corpus and this Court dismissed 23 ofMr, Prophet's 25 claims for relief and ordered the Respondent to answer the ( remaining two claims ineffective assistance oftrial counsel and ineffective assistance of appellate counsel. After this Court dismissed 23 ofthe claims, Mr, Prophet moved the Court to reconsider the dismissal, and the Court denied the motion, Conclusions of Law Petitions for writs ofhabeas corpus are "civil in character and shall under no circumstances be regarded as criminal proceedings or a criminal case." W. Va. Code § 53·4A- I (a); State exre/, Harrison v. Coiner, 154 W. Va. 467 (1970), Persons convicted of crimes and currently incarcerated, may file a petition for writ of habeas corpus contending one or more of the following: 1) a denial or infringement of the petitioner's constitutional rights rendering a conviction or sentence void, 2) lack ofjurisdiction, 3) the sentence is beyond the autllorized maximum, and 4) "the conviction or sentence is otherwise subject to collateral attack upon any ( ORDBR DBNYING PETITION PORHABBAS CORPUS Page 6 ofl4 .,..,-­ , . ( ground of alleged error heretofore available under the common law or anY,statutory provision of this state." W. Va. Code § 53-4A-l(a). A habeas eorpus proceeding is markedly different from a direct appeal or writ oferror in that only errors involving constitutional violations shall be reviewed. 8y1. Pt. 2., Edwards v. Leverette, 163 W. Va. 571 (1979). Petitious for writ ofhabeas corpus are governed in part by West Virginia Code §53-4A-l. 'The habeas corpus statute "contemplates the exercisc of discretion by the court." Perdue v. Coiner, 156 W. Va. 467 (J 973). The circuit court denying or granting relief in a habeas corpus proceeding must llllike spccific findings offact and conclusions of law relating to each contention raised by the petitioner. State ex rel. Watson v. Hill, 200 W. Va. 201 (1997). To sustain his Petition, Petitioner must prove his claims by a preponderance of ( thc evidence. "The court shall prepare and enter an order for summary dismissal ofthe petition if the contentious in filct or law relied upon in the petition have been previously and fmallyadjudicated or waived." W. Va. R Habeas 4(c). What's more, if"the petition contains a mere recitation of grounds without adequate factual support, the court may enter an order dismissing the petition, withont prejudice, with directions that the petition be refiled containing adequate filctnal support." Id. Finally, for "all petitions not dismissed summarily as provided in Rule 4(c), the court shall order the respondent to file an answer..." W. Va. R Habeas 4(d). Ifthe conrt upon review of the petition, exhibits, affidavits, or other documentary evidence is satisfied that petitioner is not entitled to relief, the court may deny a petition for writ of habeas eorpus without an evidentiary hearing. Sy1. Pt. 1, Perdue 11. Coiner, 156 W. Va. 467 ( (1973); State ex reI. Waldron v. Scott,.222 W. Va. 122 (2008). Upon denying a petition for writ of habeas corpus the court must make specific findings offact and conclusions oflawas to each ORDER DENYING PElTIION FOR HABEAB j::ORPUS _ _ ~_~~_ _ n ~ ( contention raised by the petitioner, and must also provide specific findings as to why an evidentiary hearing was unnecessary. Syi. Pt. 1, State ex rei. Watson v. Hill, 200 W. Va. 201 (1997); Syi. Pt. 4.; Markley v. Coleman, 215 W. Va. 729 (2004); R. Hab. Corp. 9(a). This Court reviews claims of ineffective assistance of counsel under the following two­ part test: whether (1) Counsel's performance was deficient under an objective standard ofreasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed2d 74 (1984); State v. Miller, 459 S.E.2d 114 (W.Va. 1995). Then, to determine whether perfonnance was deficient, 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. SyI. Pt. 6, State v. Miller, 194 W. Va. 3,459 S.E.2d 114 (1995). Thus, Petitioner has a heavy burden to prove previous counsel's ineffectiveness. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attomey wonld have so acted in the defense of an accused." Syl. Pt. 21, State v. Tlwmas, 157 W.Va. 640, 203 S.E.2d445 (1974). ANAI,YSIS . The Court has been fully briefed and an evidentiary hearing on this matter wonld not aid <. '1e Court in rendering its opinion. Ground 11 - Ineffective Assistance of Trial Counsel. ORDER DENYING PETITION FOR HABEAS CORPUS ( Mr. Prophet alleges that his constitutional right to effective assistance of trial counsel was denied because trial counsel: 1) failed to thoroughly and independently investigate the crime, 2) failed to file a motion in limine to preclude the introduction of Mr. Prophet's book, 3) failed to move for limiting instruction on Mr. Prophet's book, 4) failed of trial counsel to object to questioning regarding post arrest silence, 5) fuiled of trial counsel to object to improper closing argument, 6) fuiled to object to bias of the trial court, 7) failed to lodge appropriate objections, and 8) failed to relay Mr. Prophet's version of events to the State. 1) First, Mr. Prophet alleges that trial counsel failed to thoroughly and independently investigate the crime by not searching for blood evidence from the woods on the Devonshire property, failing to interview Mr. Medina, and failed to investigate reports of threats to law ( enforc=nt. Mr. Prophet alleges that he hid in the woods after getting into a scuffle with the an attacker and may have lost some blood there. Mr. Prophet offers little evidence that his blood was in the woods, where the blood was in the woods, that he notified counsel to investigate where to search for blood, that counsel refused to search for blood, or that finding his blood in the woods somehow would have affected the outcome of the trial. Had trial counsel searched for blood in the woods it is very unlikely that it would have been found. Mr. Prophet alleges that his trial counsel should have immediately found and questioned Jospeh Medina. When Mr. Prophet was arrested, Mr. Medina had already been arrested on other charges and was represented by counsel. There is no indication that Mr. Medina would have cooperated with Mr. Prophet's counsel at the time. There is no indication that Mr. Medina would have offered any infonnation favorable to Mr. Prophet at the time, as Mr. Medina gave ( \ incriminating statements against to the police and testified against Mr. Prophet at trial. ORDER DENYING PE'I111~l!fQJLHABJ:AS CORPUS. _ _ ( Mr. Prophet alleges that his trial counsel failed to investigate reports to Jaw enfurcement about threats from Mr. Medina and that trial counsel only subpoenaed computer aided dispatch ("CAD") sheet right before trial. The CAD sheets where introduced at trial and Mr. Prophet testified at trial about his calls to law enforcement about threats from Mr. Medina. AU of this evidence was used at trial. Because counsel obtained this evidence and used it at trial this there is no evidence that counsel's performance was deficient or that if he investigated this information earlier the outcome of the trial would have been different. In sum, Mr. Prophet fails to prove that counsel's investigation was deficient under an objective standard of reasonableness, or a reasonable probability that, but for counsel's inadequate investigation, the result of the proceedings would have been different. 2) Second, Mr. Prophet alleges that trial counsel trial counsel was ineffective ~y failing to ( file a motion in limine to preclude the introduction of Mr. Prophet's book. Trial counsel objected to the introduction of Mr. Prophet's book on multiple occasions, and the trial court heard extensive argument on the use of the book as evidence at trial. Finally the Supreme Court upheld he trial court's rulings regarding the book. State v. Prophet, 234 W. Va. 33, 762 S.E.2d 602, cert. denied, 135 S. Ct. 683, 190 L. Ed. 2d 396 (2014) reh'g denied, 135 S. Ct. 1035,190 L. Ed. 2d 900 (2015). When counsel objeyted to the introduction of evidence, whether before or during trial, makes no difference for terms of effeetive assistance of counsel. Trial counsel preserved the alleged error of introducing the evidence, and the Supreme Court upheld the trial court's ruJing. It is clear tIui:t trial couusel tried to preclude the use of the book at trial, and that had trial counsel done so with a written motion in limine, the trial court's rnling would not have been different. Finally, even had the trial court precluded the use of the book in cross-examination it is unlikely , { that the result of the trial would have beon different. ORDER DENYING PETmON FOR HABEAS CORPUS ( 3) Mr, Prophet alleges ineffective assistance of counsel for fuiling to move for a limiting instruction on Mr. Prophet's book. 'This evidence was direct rcbuttal evidence and not simply to impeach the credibility of Mr. Prophet, thus a limiting instruction would not have been appropriste. Even if a limiting instroction were appropriate, counsel need not move for a limiting instruction as it is within the strategic decisions of trial counsel whether or not to shine even further light on obviously damning evidence. Finally, had a limiting instruction been given as Mr. Prophet alleges was proper, it is very unlikely that the result of the trial would have been different. 4) Mr. Prophet next alleges that trial counsel was ineffective by failing to object to questioning regarding post-Miranda silence, At trial, counsel objected to questioning regarding ( Mr. Prophet's silence. Mr. Prophet appealed the Court's ruling, and the Supreme Court found no error. Because, Mr, Manford did object to the State questioning Mr. Prophet about his silence, trial counsel's performance was not deficient. 5) Mr. Prophet alleges that trial counsel was ineffective for failing to object to improper closing argument Although, trial counsel did not object to the closing argument, the supreme court reviewed the comments and found that the comments were not improper or unfairly prejudicial. Nonetheless, whether to object to prejudicial statements in a closing argument is a tough call for a trial attorney, because an objection will only shine a light on the prejudicial statement, especially if the objection is overruled. Although it is prejudicial to call a defundant a liar, in this case it was not unfairly prejudicial because the evidence in this case supported that conclusion. 'The jury, in rendering its verdict, also came to the conclusion that Mr. Prophet's (, testimony was not believable, and found him guilty. Accordingly, Counsel's performance was not deficient and the outcome ofthe trial would not likely heve differed had counsel objected. ORDER DENYING p~mIQN FOR HNIEAS CORPUS,,--_~ ( 6) Mr. Prophet alleges that trial counsel was ineffective for fuiling to object to bias on the part of the trial court. There is no evidence of bias by the trial court, thus this claim must fail. 7) Mr. Prophet alleges that his trial counsel was ineffective because counsel: fuiled to "lodge other appropriate objections and to raise proper grounds for his post-trial motions," fuiled to question Lieutenant Hannison about some heroin purchase, failed to get Mr. Medina's false testimony stricken from the record, failed to present a constitutionally adequate closing, and presented the case in an inculpatory "style." Mr. Prophet further alleges a number of things that he says his counsel should have objeeted to including excessive court security, and the vietim's family "shouting" comments about Mr. Prophet in the presence of the jury, among others. The Court finds no deficiencies in trial counsel's perfurmance in any ofthe alleged deficiencies under this section. Further, Mr. Prophet does not offer any evidence that the trial outcome would have ( been different had trial counsel performed the way that he believes counsel should have perfurmed. 8) Mr. Prophet alleges that his trial counsel was ineffective because they fuiled "to relay version of events to the prosecutor and to assert his innocence." Mr. Prophet has produced no evidence that this occurred, nor has he produced evidence that counsel failing to relay attorney­ client communications is objectively unreasonable, nor is there any inkling of evidence that the outcome of the trial would have been different if Mr. Prophet's attorneys told the State wbat Mr. Prophet's testimony would be. At the very least, the state would have been even more prepared to cross-examine Mr. Prophet. Accordingly, this claim must fail. Because Mr. Prophet failed to prove any deficient performance of trial counsel, and failed to show that the results would have been different had trial counsel performed as Mr. Prophet ORDER DENYING PETITION FOR HABEAS CORPUS J • ' ( alleges counsel should have, Mr. Prophet's claim of ineffective assistance of trial counsel is DENIED. Ground 12 - Ineffective Assistance of Appellate Counsel Lastly, Mr. Prophet argues that his appellate counsel, Chistopher J. Prezioso, was ine:ffilctive because 1) counsel's argument was weakly presented, and 2) counsel's failure to raise the "constitutional underpinnings regarding Petitioner's righto remain silent." Respondent provided the Court with all of the appellate briefs. The Court has review all of the appellate briefs and the Supreme Court's decision and finds that there is no basis for Mr. Prophet's blanket assertion that the appeal was weakly presented. More specifically, the Court finds that appellate counsel did argue the "constitutional underpinnings regarding Petitioner's right to remain silent." (, See Mr. Prophet's appellate brief at 44. Additionally, the Supreme Court of Appeals of West Virginia thoroughly analY7..ed the issue of post arrest silence in Section III C of its opinion. State 11. Prophet, 234 W. Va. 33,43-44,762 S.E.2d 602,612-13 (2015). Because Mr. Prophet failed to prove any deficient performance of appellate counsel, and fhlled to show that the results would have beeo di:ffilrent had appellate couusel performed as Mr. Prophet alleges counsel should have, Mr. Prophet's claim of ineffective assistance of appellate counsel is DENIED. Conclusion The Court would not be aided by a hearing on this Petition, and for the foregoing reasons, Mr. Prophet's Petition for Habeas Corpus is DENIED. The Clerk shall enter this Order as of the date written below and shall transmit attested ( copies to all counsel and parties of record, including the Prosecuting Attorney for Berkeley County and Lisa A. Green, Esq., counsel for the Petitioner. mmRR DENYING PETIDON FOR BEAS CORPUS ,~ , , ( This is a final Order. The Clerk is directed to retire this matter from the aetive docket. ENTER this Z'iday of V~015. MICHAEL D. LORENSEN, JUDGE TWENTY-THIRD JUDICIAL CIRCtnT BERKELEY COUNTY, WEST VIRGINIA A TRUE Copy ATTEST Virginia M. Sine By: ~Uit Court Deputy Clerk ( ( ORDBRDB~GPETTI10NFORHABEASCORPDS