Ballard v. Ferguson

• Decision Date: 25 October 2013
• Docket Number: No. 12–1028.,12–1028.
• Citation: 232 W.Va. 196,751 S.E.2d 716
• Court: West Virginia Supreme Court
• Parties: David BALLARD, Warden, Mount Olive Correctional Complex, Respondent Below, Petitioner v. Brian Bush FERGUSON, Petitioner Below, Respondent.

232 W.Va. 196
751 S.E.2d 716

David BALLARD, Warden, Mount Olive Correctional Complex, Respondent Below, Petitioner
v.
Brian Bush FERGUSON, Petitioner Below, Respondent.

No. 12–1028.

Supreme Court of Appeals of
West Virginia.

Submitted Oct. 16, 2013.
Decided Oct. 25, 2013.

[751 S.E.2d 717]

Syllabus by the Court

1. A final judgment entered by a circuit court under the provisions of the West Virginia Post–Conviction Habeas Corpus Act may be appealed by either party under W. Va.Code § 53–4A–9(a) (1967) (Repl. Vol. 2008)

2. “A trial court lacks jurisdiction to enter a valid judgment of conviction against an accused who was denied effective assistance of counsel and a judgment so entered is void.” Syllabus point 25, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

3. “In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Syllabus point 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

4. “The fulcrum for any ineffective assistance of counsel claim is the adequacy of counsel's investigation. Although there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and judicial scrutiny of counsel's performance must be highly deferential, counsel must at a minimum conduct a reasonable investigation enabling him or her to make informed decisions about how best to represent criminal clients. Thus, the presumption is simply inappropriate if counsel's strategic decisions are made after an inadequate investigation.” Syllabus point 3, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995).

Marcia Ashdown, Prosecuting Attorney, Perri DeChristopher, Assistant Prosecutor, Morgantown, WV, for Petitioner.

Darrell Ringer, The Law Offices of Darrell Ringer, Morgantown, West Virginia, Paul W. Schmidt, Sarah L. Wilson, Christian J. Pistilli, Covington & Burling, Washington, District of Columbia, for Respondent.

DAVIS, Justice:

This is an appeal of David Ballard, Warden of Mount Olive Correctional Complex (“the State”), from an order of the Circuit Court of Monongalia County that granted habeas corpus relief to Brian Bush Ferguson (“Mr. Ferguson”). The State contends that (1) the circuit court erred in finding that Mr. Ferguson was denied effective assistance of trial

[751 S.E.2d 718]

counsel and (2) the circuit court erred in limiting the testimony of one of its expert witnesses during the habeas corpus proceeding.¹ Finding no error in the circuit court's rulings, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On February 2, 2002, at around 7:00 p.m., Jerry Wilkins was shot in the back outside his apartment near University Avenue in Morgantown, West Virginia. ² Mr. Wilkins died in a hospital shortly after the shooting. Within hours of the shooting, the police received varying descriptions of the assailant from several witnesses.³ The police also learned that Mr. Ferguson ⁴ was a person known to have a grudge against the victim. ⁵ Subsequent to the investigation by the police, Mr. Ferguson was indicted by a grand jury for first degree murder.

A jury trial was held in the case in November of 2002. During the trial, the State called Brian Johnson, a friend of Mr. Ferguson, as a witness. Mr. Johnson testified that, a few weeks before the murder, he saw a large stainless steel revolver in Mr. Ferguson's apartment.⁶ Mr. Ferguson called it a magnum.⁷ There was also testimony by Mr. Johnson that, after the murder, Mr. Ferguson told him that the weapon was “long gone, that police had no eyewitness to identify the perpetrator and that there was no gunshot residue.” ⁸ Mr. Johnson also testified that Mr. Ferguson was not with him prior to the murder.⁹ A friend of the victim, Solomon Wright, testified that the victim stated shortly before his murder that if anything happened to him, Mr. Ferguson would be responsible. Another witness, Bernard Russ, testified that Mr. Ferguson once stated that “I am going to get Jerry when his fraternity brothers are not around.” ¹⁰ There also was evidence that suggested Mr. Ferguson was stalking the victim prior to the murder.¹¹ The State additionally presented evidence that Mr. Ferguson once threatened the victim with a knife.

Mr. Ferguson testified in his own defense and called several witnesses. One of Mr. Ferguson's witnesses, his girlfriend Ebony Gibson, testified that Mr. Ferguson did not pull a knife on the victim.¹² Mr. Ferguson testified that although he did not like the victim, he never threatened the victim with a knife, nor did he ever indirectly threaten the victim. Mr. Ferguson testified that he was alone in his apartment during the afternoon on the day that the victim was killed. Later, he went to a recreation center.¹³ Mr. Ferguson denied killing the victim.

[751 S.E.2d 719]

The jury returned a verdict on November 26, 2002, finding Mr. Ferguson guilty of murder in the first degree, without a recommendation of mercy. The trial court subsequently sentenced Mr. Ferguson to prison for life without the possibility of parole. Mr. Ferguson appealed the verdict to this Court, and we affirmed the judgment in State v. Ferguson, 216 W.Va. 420, 607 S.E.2d 526 (2004), cert. denied,546 U.S. 812, 126 S.Ct. 332, 163 L.Ed.2d 45 (2005).

Mr. Ferguson filed a petition for habeas relief in March of 2006. By order dated September 11, 2007, the circuit court summarily dismissed the petition without holding an omnibus hearing. Mr. Ferguson filed a petition for appeal with this Court. We remanded the case to the circuit court to hold an omnibus hearing. The circuit court held a three-day omnibus hearing in September 2011. During the hearing, Mr. Ferguson called two witnesses who testified that, shortly after the victim was killed, a person named Robert Coles told them that he had killed the victim. One of the two witnesses, Mary J. Linville, testified that she gave a statement to the police informing them of Mr. Coles' confession prior to the trial. There was evidence that Mr. Ferguson's trial counsel learned of Ms. Linville's statement implicating Mr. Coles through material obtained from the State during discovery. There was also evidence that trial counsel failed to do an independent investigation of Ms. Linville's statement. By order entered August 8, 2012, the circuit court found that Mr. Ferguson was denied effective assistance of counsel because trial counsel failed to investigate the confession by Mr. Coles. The order required the State to release Mr. Ferguson if it did not retry him or file an appeal. This State filed this appeal.

II. STANDARD OF REVIEW

In this appeal, we are called upon to review the trial court's order in a habeas corpus proceeding. We have held the following regarding the standard of review of such an order:

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). See also Syl. pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975) (“Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong.”).

III. DISCUSSION

In this proceeding, the State has filed an appeal from the circuit court's decision granting habeas relief to Mr. Ferguson. Our cases have recognized, and we so hold, that “[a] final judgment entered by a circuit court under the provisions of the West Virginia Post–Conviction Habeas Corpus Act may be appealed ... by either party [under W. Va.Code § 53–4A–9(a) (1967) (Repl. Vol. 2008) ].” Coleman v. Brown, 229 W.Va. 227, 231 n. 6, 728 S.E.2d 111, 115 n. 6 (2012). See also State v. Green, 207 W.Va. 530, 534 n. 5, 534 S.E.2d 395, 399 n. 5 (2000) (“The State's right to appeal an adverse ruling in habeas corpus is expressly provided by statute.”).

The State argues that the circuit court committed error in granting Mr. Ferguson habeas relief. According to the State, trial counsel made a reasonable strategic decision to not conduct an independent investigation of Ms. Linville's statement implicating Mr. Coles. The circuit court determined that the decision to not investigate Ms. Linville's statement was not reasonable. The circuit court further reasoned that such failure to

[751 S.E.2d 720]

investigate probably affected the outcome of the case.

Our law is clear in recognizing that the Sixth Amendment of the federal constitution and Article III, § 14 of the state constitution guarantee not only the assistance of counsel in a criminal proceeding but that a defendant has “the right to effective assistance of counsel.” Cole v. White, 180 W.Va. 393, 395, 376 S.E.2d 599, 601 (1988). We have held that “[a] trial court lacks jurisdiction to enter a valid judgment of conviction against an accused who was denied effective assistance of counsel and a judgment so entered is void.” Syl. pt. 25, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). We have adopted a two-pronged test to determine whether a defendant has received effective assistance of counsel:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of...