Richard A. White v. Ralph Terry, Acting Warden

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Richard A. White, FILED Petitioner Below, Petitioner February 23, 2018 EDYTHE NASH GAISER, CLERK vs) No. 17-0071 (Nicholas County 13-C-124) SUPREME COURT OF APPEALS OF WEST VIRGINIA

Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Richard A. White, by counsel Christopher S. Moorehead, appeals the Circuit Court of Nicholas County’s December 29, 2016, order denying his amended petition for writ of habeas corpus. Respondent Ralph Terry, Acting Warden, by counsel Shannon Frederick Kiser, filed a response.1 On appeal, petitioner argues that the circuit court erred in denying him habeas corpus relief on the ground of ineffective 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.

On December 2, 2009, petitioner shot and killed Harvey Hersman. Petitioner was subsequently indicted on one count of murder. Following a two-day trial, the jury found petitioner guilty of first-degree murder and did not recommend mercy. On August 23, 2011, the circuit court sentenced petitioner to life in prison without the possibility of parole. Petitioner appealed to this Court, and we affirmed his sentence and conviction. See State v. White, 231 W.Va. 270, 744 S.E.2d 668 (2013).

Thereafter, petitioner filed a pro se petition for writ of habeas corpus. The circuit court appointed counsel, and on August 6, 2015, petitioner filed an amended petition for writ of habeas corpus. In his amended petition, petitioner alleged ineffective assistance of counsel; denial of his

1 Since the filing of the petition in this case, the warden at Mt. Olive Correctional Complex has changed, and the acting warden is now Ralph Terry. The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure.

right to a fair, impartial, and objective jury; prosecutorial misconduct; and insufficient evidence. The circuit court held an omnibus hearing on January 14, 2016. By order entered on December 29, 2016, the circuit court denied petitioner’s amended petition. 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).

On appeal, petitioner challenges only the circuit court’s denial of his ineffective assistance of counsel claims.2 Specifically, petitioner claims that his attorney’s representation was deficient for six distinct reasons: (1) counsel failed to attempt to suppress petitioner’s statement to the police;3 (2) counsel precluded petitioner from testifying at trial and failed to meaningfully advise petitioner as to his right to testify; (3) counsel failed to object to a jury instruction on self-defense that included a duty to retreat; (4) counsel failed to seek a mental health evaluation for competency, responsibility, and diminished capacity given petitioner’s prior head injury; (5) counsel failed to strike a juror who was sympathetic to the West Virginia State Police; and (6) counsel failed to maintain an adversarial nature by largely failing to object during trial.

2 Petitioner also conclusorily states that the combined effect of the asserted ineffective representation warrants a new trial. Petitioner, however, offers no law or analysis concerning the cumulative error doctrine, and he does not present this as an assignment of error. Thus, petitioner has not properly presented an allegation of cumulative error for this Court’s review. See W.Va. R. App. Pro. 10(c)(7) (“The [petitioner’s] brief must contain an argument exhibiting clearly the points of fact and law presented, the standard of review applicable, and citing the authorities relied on, under headings that correspond with the assignments of error.”). 3 Petitioner asserts that the circuit court erroneously analyzed this ground under an ineffective assistance of counsel framework. Petitioner, however, presents his own assignment of error in terms of an ineffective assistance of counsel claim, and his argument makes references to counsel’s “failure . . . to challenge the statement.” Although petitioner failed to include his amended petition in the record on appeal, thereby preventing this Court from determining how the claim was presented in that filing, the transcript from petitioner’s omnibus hearing indicates that this claim was presented as an ineffective assistance of counsel claim. Accordingly, to the extent that petitioner is arguing that this claim should have been addressed differently, we can discern no error in the circuit court’s consideration of this ground as an ineffective assistance of counsel claim.

Petitioner’s arguments presented on appeal were thoroughly addressed by the circuit court in its order denying petitioner habeas relief. The circuit court’s order includes well- reasoned findings and conclusions as to the assignments of error now raised on appeal, and we find no error or abuse of discretion in the circuit court’s denial of petitioner’s amended petition. Because we find no clear error or abuse of discretion in the circuit court’s order or record before us, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised on appeal and direct the Clerk to attach a copy of the circuit court’s December 29, 2016, “Final Order Denying Writ of Habeas Corpus and Dismissing Case” to this memorandum decision.

For the foregoing reasons, we affirm the circuit court’s December 29, 2016, order denying petitioner’s amended petition for writ of habeas corpus.

Affirmed. ISSUED: February 23, 2018 CONCURRED IN BY:

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