Bowman v. Leverette

Decision Date19 March 1982
Docket NumberNo. 14430,14430
Citation289 S.E.2d 435,169 W.Va. 589
PartiesGlen N. BOWMAN, Sr. v. Bobby J. LEVERETTE, Warden, West Virginia Penitentiary.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. W.Va.Code, 53-4A-1(d) [1967] allows a petition for post-conviction habeas corpus relief to advance contentions or grounds which have been previously adjudicated only if those contentions or grounds are based upon subsequent court decisions which impose new substantive or procedural standards in criminal proceedings that are intended to be applied retroactively.

2. The decisions in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and State v. O'Connell, W.Va., 256 S.E.2d 429 (1979), do not require full retroactive application.

Gold & Khourey and Louis H. Khourey, Moundsville, for plaintiff.

Chauncey H. Browning, Atty. Gen., and Thomas N. Trent, Asst. Atty. Gen., Charleston, for defendant.

McHUGH, Justice:

This is an appeal by Glen N. Bowman, Sr., from an order of the Circuit Court of Marshall County, entered on December 13, 1978, denying his petition for a writ of habeas corpus. The appellant assigns the summary dismissal of his petition as error and asks this Court to consider his substantive claims to relief.

Glen N. Bowman, Sr., is currently serving a life sentence in the West Virginia Penitentiary at Moundsville. He was sentenced by an order of the Intermediate Court of Kanawha County, dated June 13, 1969, to life imprisonment after a jury returned a verdict of guilty of first degree murder. That order was appealed and this Court affirmed the judgment in State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971). The facts of the criminal case which underlie this post-conviction relief proceeding are fully set forth in that opinion.

I. THE PROCEDURAL QUESTION

On September 26, 1977, this Court refused to hear a petition for a writ of habeas corpus filed by Glen N. Bowman, Sr. That petition sought relief based upon State v. Pendry, W.Va., 227 S.E.2d 210 (1976). The petition was filed again on June 6, 1978, after this Court's decision in Jones v. Warden, W.Va., 241 S.E.2d 914 (1978). We once again refused to entertain the petition. On June 27, 1978, Bowman filed a petition for habeas corpus in the Circuit Court of Marshall County that advanced substantially the same contentions, and relied substantially upon the same grounds, as those petitions which previously had been refused by this Court. On December 13, 1978, the circuit court held that this Court had refused the contentions put forth in the appellant's petition and that such refusal was res judicata to the contentions and grounds in the petition before it. On that basis the circuit court denied the relief sought and this appeal followed.

The appellant argues that the denial of relief in the Circuit Court of Marshall County, on the grounds that the summary refusal by this Court of similar contentions was res judicata, was error. The appellant says that under W.Va.Code, 53-4A-1(b) [1967], a contention raised in a post-conviction habeas corpus petition is only finally adjudicated when there has been a decision on the merits after a full and fair hearing.

The West Virginia Legislature has provided for post-conviction habeas corpus relief in W.Va.Code, 53-4A-1 [1967], et seq. The scope of such relief is set forth in W.Va.Code, 53-4A-1(a) [1967]:

Any person convicted of a crime and incarcerated under sentence of imprisonment therefor who contends that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common-law or any statutory provision of this State, may, without paying a filing fee, file a petition for a writ of habeas corpus ad subjiciendum, and prosecute the same, seeking release from such illegal imprisonment, correction of the sentence, the setting aside of the plea, conviction and sentence, or other relief, if and only if such contention or contentions and the grounds in fact or law relied upon in support thereof have not been previously and finally adjudicated or waived in the proceedings which resulted in the conviction and sentence, or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings which the petitioner has instituted to secure relief from such conviction or sentence. Any such petition shall be filed with the clerk of the supreme court of appeals, or the clerk of any circuit court, said supreme court of appeals and all circuit courts of this State having been granted original jurisdiction in habeas corpus cases by the Constitution of this State, or with the clerk of any court of record of limited jurisdiction having criminal jurisdiction in this State....

This subsection allows for post-conviction habeas corpus review "if and only if" the contention or contentions raised by the petitioner have not been previously and finally adjudicated or waived in the petitioner's criminal trial and appeal or in previous habeas corpus proceedings. We have considered what constitutes a waiver of contentions in the recent case of Losh v. McKenzie, W.Va., 277 S.E.2d 606 (1981). The case presently before us raises the question of what constitutes a final adjudication of contentions presented in a petition for post-conviction habeas corpus relief. W.Va.Code, 53-4A-1(b) [1967], directly addresses that issue:

For the purposes of this article, a contention or contentions and the grounds in fact or law relied upon in support thereof shall be deemed to have been previously and finally adjudicated only when at some point in the proceedings which resulted in the conviction and sentence, or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, there was a decision on the merits thereof after a full and fair hearing thereon and the time for the taking of an appeal with respect to such decision has not expired or has expired, as the case may be, or the right of appeal with respect to such decision has been exhausted, unless said decision upon the merits is clearly wrong. 1

It is not denied that the three contentions advanced by the appellant in this case were raised and resolved against him at his trial in the Intermediate Court of Kanawha County and on his appeal after his conviction. See State v. Bowman, supra. The appellant, however, argues that W.Va.Code, 53-4A-1(d) [1967], applies to his case and, therefore, we should consider the substance of his contentions. W.Va.Code, 53-4A-1(d) [1967], provides:

For the purposes of this article, and notwithstanding any other provisions of this article, no such contention or contentions and grounds shall be deemed to have been previously and finally adjudicated or to have been waived where, subsequent to any ... proceeding or proceedings in which said question otherwise may have been waived, any court whose decisions are binding upon the supreme court of appeals of this State or any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or the Constitution of West Virginia, or both, impose upon State criminal proceedings a procedural or substantive standard not theretofore recognized, if and only if such standard is intended to be applied retroactively and would thereby affect the validity of the petitioner's conviction or sentence.

A review of the appellant's substantive claims to relief, which were briefed and argued on this appeal, reveal them to be without merit under the standards set in these statutes. The circuit court's dismissal of the writ was, therefore, not error because W.Va.Code, 53-4A-1(d) does not apply to this case. We affirm the judgment of the Circuit Court of Marshall County.

II. THE SUBSTANTIVE ISSUES

In his petition for post-conviction habeas corpus relief, the appellant, Glen N. Bowman, Sr., as the basis upon which he seeks relief, asserts that three erroneous instructions were given to the jury at his trial on the first degree murder charge. We will consider each instruction in order.

A. State's Instruction Number Four

The State's instruction number four read:

The Court instructs the jury that mere words, however 'insulting or opprobrious' they may be, communicated directly or indirectly to the defendant, will neither justify or [sic] excuse he defendant from the commission of an assault upon a person, and as a matter of law, where the defendant has committed such an assault with a deadly weapon, proof that the victim or his wife uttered such words is not sufficient provocation to justify such an assault.

The appellant argues that this instruction violates the principle of State v. Pendry, supra, by relieving the State of its burden of proof on a material element of the crime charged. In State v. Pendry we held, in syllabus point 4:

In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary.

State's instruction number four did not use or create any presumption. The instruction is a...

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