Blickenstaff v. Ames

• Decision Date: 12 January 2022
• Docket Number: 20-0176
• Court: Virginia Supreme Court
• Parties: Michael Blickenstaff, Plaintiff Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Defendant Below, Respondent

Michael Blickenstaff, Plaintiff Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Defendant Below, Respondent

No. 20-0176

Supreme Court of Appeals of West Virginia

January 12, 2022

Jefferson County 18-C-47

MEMORANDUM DECISION

Petitioner Michael Blickenstaff, by former counsel David P. Skillman, filed an appeal of the January 29, 2020, order of the Circuit Court of Jefferson County denying his petitions for a writ of habeas corpus and dismissing his case with prejudice. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick Morrisey and Holly M. Flanigan, filed a response in support of the circuit court's order. By order entered on February 18, 2021, this Court determined that petitioner's brief was deficient and directed petitioner's newly-appointed counsel, Kirk H. Bottner, to file an amended petitioner's brief. The order further directed respondent to file an amended respondent's brief. Complying with the Court's directive, petitioner, by counsel Kirk H. Bottner, filed an amended petitioner's brief.^[1] Respondent, by counsel Patrick Morrisey and William E. Longwell, filed a summary response.

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,

1

a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner's conviction arises from events occurring on August 25, 2014. On that day, he rode with Nicole M., his child's mother, to take the couple's child to daycare. During the trip, petitioner threatened Nicole M. with a knife and took over driving the vehicle. He drove for five hours with Nicole M. and the child through Maryland, West Virginia, and Virginia. During the drive, petitioner threatened to stab Nicole M., threatened to carve his initials into Nicole M.'s forehead, cut Nicole M.'s neck with the knife, and punched Nicole M.'s mouth, causing a tooth to break through her upper lip. Nicole M. did not physically resist petitioner when he took control of the vehicle or during the drive. At the conclusion of the five-hour drive, petitioner returned Nicole M. and the child to Nicole M.'s apartment in Maryland. Nicole M. reported the incident to law enforcement the following day, and petitioner was indicted in Maryland and West Virginia on crimes arising from the incident.

Petitioner was convicted of false imprisonment in Maryland and then extradited to West Virginia to stand trial on one count of kidnapping. Before his trial in West Virginia, petitioner filed a motion asking the West Virginia trial court to dismiss the case on the ground that he was illegally extradited to West Virginia. The trial court denied the motion.

During petitioner's trial on the kidnapping charge, the State presented testimony through an expert witness, Katherine Spriggs, a program manager at Shenandoah Women's Center, to explain why Nicole M. did not physically resist petitioner during the kidnapping. Ms. Spriggs testified that domestic violence victims' compliance with abusers is more often out of fear than consent to the abuse. Before trial, petitioner had filed a motion to exclude Ms. Spriggs's testimony on the ground that her testimony would be irrelevant and unduly prejudicial; however, he did not provide an explanation as to why her testimony would be irrelevant and unduly prejudicial, and the trial court denied the motion. Petitioner did not make any objection to Ms. Spriggs's testimony at trial, nor did he present testimony of an expert witness to rebut Ms. Spriggs's testimony.

At the conclusion of his trial, petitioner was convicted of kidnapping and sentenced to life in prison without mercy. Petitioner appealed his conviction to this Court. On appeal, petitioner argued that the trial court erred by permitting Ms. Spriggs's testimony and by admitting a prior conviction for second-degree assault against Nicole M. into evidence. The Court found no merit to either argument and affirmed petitioner's conviction. See State v. Blickenstaff, 239 W.Va. 627, 630, 804 S.E.2d 877, 880 (2017). Specifically, regarding Ms. Spriggs's testimony, the Court determined that petitioner's motion to exclude Ms. Spriggs's testimony was properly denied because it lacked sufficient specificity to "alert the trial court to the specific nature of his claimed defect." Id. at 631, 804 S.E.2d at 881. The Court went on to find that "Ms. Spriggs's testimony on Nicole M.'s state of mind during her kidnapping . . . is relevant to whether she consented to her kidnapping." Id. at 631 n.12, 804 S.E.2d at 881 n.12.

In March of 2018, petitioner filed a pro se petition for a post-conviction writ of habeas corpus ("pro se petition"). Therein, petitioner asserted multiple grounds for relief, including arguing that he was denied due process and effective assistance of counsel when his trial counsel failed to object to the testimony of Ms. Spriggs. The circuit court appointed counsel to petitioner

2

and directed counsel to file an amended petition and Losh list.^[2]

In September of 2018, petitioner's appointed counsel filed the amended petition for writ of habeas corpus ("amended petition"). The amended petition included numerous grounds for relief, including the assertion that petitioner's trial counsel was ineffective by failing to (1) timely and properly object as to the relevancy and prejudice of Ms. Spriggs's testimony, (2) retain an expert witness to testify on petitioner's behalf and rebut the testimony of Ms. Spriggs, (3) properly and completely instruct the jury regarding petitioner's kidnapping charge, and (4) request or offer a jury instruction on lesser-included offenses. The amended petition also contended that petitioner's extradition from Maryland to West Virginia was flawed. The amended petition set forth petitioner's request for an evidentiary hearing.

Petitioner attached numerous documents to his amended petition, including a Losh list and several forms associated with the Interstate Agreement on Detainers ("IAD").^[3] The Losh list consisted of a five-page document. The first page of the document directed petitioner to "check each ground that [he] consider[ed] inapplicable to the conviction(s) challenged in the habeas corpus petition," and the document indicated that checked grounds "will be deemed to have been waived." The document also directed petitioner to "initial each ground waived just to the right of each ground which is checked." Thirty-three of the fifty-three grounds were checked; however, petitioner's initials do not appear anywhere in the document. The final page of the document contained sections titled "certificate of petitioner" and "certificate of counsel," and each of these sections was followed by a signature line. No signatures appear on any page of the five-page document.

In October of 2018, petitioner filed a pro se amended petition for writ of habeas corpus ("pro se amended petition"), asserting two additional grounds for habeas relief that were not included in the amended petition.

In March of 2019, the circuit court held a short hearing in the case. Petitioner was not present for the hearing, but his counsel appeared on his behalf. The circuit court indicated its intent to stay the case pending this Court's decision in State v. Scruggs, ^[4] believing that Scruggs may be dispositive of an issue in the habeas proceeding.

A second hearing was held in December of 2019. During the hearing, the circuit court

3

observed that the Court had issued its decision in Scruggs, and the circuit court told petitioner, "[T]he decision in the Scruggs[] case pretty much forecloses the bulk of your petition." Petitioner's counsel requested that the circuit court proceed to hold an evidentiary hearing, but the circuit court responded that an evidentiary hearing would be unnecessary. No mention was made during the hearing of the Losh list. The circuit court concluded the hearing by deciding that petitioner was not entitled to habeas relief. The court directed respondent's counsel to prepare an order.

The circuit court entered an order on January 29, 2020, with its ruling on the pro se petition, the amended petition, and the pro se amended petition. The circuit court determined that an evidentiary hearing was unnecessary, it denied all habeas relief sought, and it dismissed the case with prejudice. In the order, the circuit court addressed issues raised in the three petitions, including whether petitioner's trial counsel was ineffective, whether the State failed to bring petitioner to trial within one hundred and eighty days pursuant to the IAD, whether the State took custody of petitioner without first ensuring petitioner had waived extradition, whether petitioner was entitled to relief on any ground "specifically waived" in petitioner's Losh list, and whether petitioner was entitled to relief on any other ground.

With regard to the issue concerning ineffective assistance of trial counsel, the circuit court found that "[p]etitioner's assertions lack the specificity required for habeas relief to be granted." The Court determined that, as to each of the four claims that petitioner's trial counsel was ineffective, petitioner had failed to establish the necessary elements for relief as described in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

Regarding petitioner's claim that his trial counsel was ineffective by failing to timely and properly object to the testimony of Ms. Spriggs, the circuit court determined that petitioner failed to state, "with any...