Mills v. Ames

• Decision Date: 15 April 2019
• Docket Number: No. 18-0177,18-0177
• Court: West Virginia Supreme Court
• Parties: Marvin Mills, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent

Marvin Mills, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent

No. 18-0177

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 15, 2019

(Raleigh County 06-C-784)

MEMORANDUM DECISION

Petitioner Marvin Mills, by counsel Stephen P. New, appeals the January 25, 2018, order of the Circuit Court of Raleigh County that denied his petition for a writ of habeas corpus following his conviction of first-degree murder with use of a firearm. Donnie Ames, Superintendent, Mount Olive Correctional Complex,¹ by counsel Robert L. Hogan, filed a response in support of the circuit court's order.

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.

In September 1999, petitioner drove to Richmond Cleaners in Beckley, West Virginia, stepped inside, removed his .38 caliber gun from the manila envelope he was carrying,² and shot Pamela Cabe two times, causing her death. Petitioner then crossed the street, tossed his handgun nearby, and waited for the police. The police recovered the handgun with petitioner's help and took him into custody. Petitioner confessed to the murder.³

In May 2000, petitioner was tried before a jury in the Circuit Court of Raleigh County on the charge of first-degree murder. Given the overwhelming evidence that he shot the victim, petitioner did not dispute this fact at trial. He was convicted of first-degree murder by use of a firearm and was sentenced to life in prison without the recommendation of mercy. Petitioner appealed and this Court reversed his conviction and remanded the matter for a new trial. See State v. Mills, 211 W. Va. 532, 566 S.E.2d 891 (2002) ("Mills I") (finding reversible error in the trial court's failure to grant a motion to strike a prospective juror for cause and the prosecutor's improper references to petitioner's decision not to testify).

In November 2003, following a second jury trial, petitioner was again convicted of first-degree murder by use of a firearm and was sentenced to life without mercy. Petitioner appealed and this Court affirmed his conviction. See State v. Mills, 219 W. Va. 28, 631 S.E.2d 586 (2005) ("Mills II").

Petitioner filed a pro se petition for a writ of habeas corpus in 2006. Various appointed counsel came and went and petitioner's present counsel was appointed in May 2011. On June 26, 2013, petitioner, by counsel, filed an extensive amended habeas petition.

Following a July 15, 2014, hearing, the habeas court entered a detailed thirty-page order denying relief, specifically acknowledging that, at the habeas hearing, petitioner adopted a strategy that he had not previously employed in either of his trials, appeals, or early on in his request for habeas relief: actual innocence. The habeas court rejected any claim that this "new 'contention in fact'" constituted "new evidence" warranting habeas relief because petitioner had the opportunity to make such claim in both trials, in his two appeals, and in his earlier post-conviction pleadings.

The habeas court further found that the following grounds for relief alleged in the amended petition were previously and finally adjudicated in petitioner's appeal of his conviction following the second trial: violation of the right to confront witnesses; prosecutorial misconduct (as to the prosecutor's closing argument); failure to strike jurors; improper media involvement; and media coverage of the jury view of the crime scene. See generally Mills II, 219 W. Va. 28, 631 S.E.2d 586; W. Va. Code § 53-4A-1. As for the other grounds alleged (with the exception of the ineffective assistance of counsel claim), the habeas court concluded that petitioner failed to rebut the presumption that he intelligently and knowingly failed to advance certain issues that could have been raised prior to or during trial or on direct appeal—i.e., "911 Recordings"; "Failure [to] preserve audiotape recorded statements"; prosecutorial misconduct; prior acts of prosecutorial misconduct involving conduct other than the prosecutor's closing argument; prosecutor acted as an "over[-]zealous advocate"; violation of Trial Court Rule 17 by the circuit judges; appearance of bias by "[t]he 10^th Judicial Circuit"; failure to bifurcate trial and sentencing; failure to bifurcate on the issue of eligibility for probation; and "[f]ruit of the [p]oisonous [t]ree—[n]o Miranda warning/coercion to give 'voluntary statement.'" See generally Mills II, 219 W. Va. 28, 631 S.E.2d 586; W. Va. Code § 53-4A-1.

Thus, the remaining issue before the habeas court was whether petitioner received ineffective assistance of trial counsel on the following grounds: (1) failure to question or move to suppress petitioner's statement, which petitioner now claims was coerced; (2) "[d]efense counsel pled petitioner guilty[;]" (3) failure to dispute the State's claim that petitioner planned a "sneakattack" on the victim; (4) failure to investigate eyewitness's claim; (5) failure to impeach witness's inconsistent statements; (6) failure to investigate and clarify firearm examiner testimony; (7) failure to challenge the gun-residue kit; and (8) failure to move for mistrial or file pretrial motions regarding missing evidence.

The habeas court addressed and rejected each of petitioner's ineffective assistance arguments. See Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) ("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."). This appeal followed.

This Court reviews orders denying habeas relief under 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, in part, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).

In petitioner's first assignment of error, he argues that the habeas court incorrectly concluded that trial counsel was not ineffective. Petitioner argues, as he did below, that trial counsel was ineffective in failing to question law enforcement about the circumstances surrounding his confession, which petitioner now claims was coerced and should have been suppressed. The habeas court found that, at the suppression hearing (at which petitioner refused to testify) and in his two appeals from his convictions,⁴ he never claimed that his confession was coerced or, as he now contends, that he requested a lawyer three times before making his statement.⁵ Petitioner does not challenge these findings in this appeal. Further, trial counsel testified that petitioner never advised him of the alleged circumstances surrounding his confession. Rather, the evidence showed that petitioner twice confirmed that he understood his Miranda⁶ rights before giving his confession and that he agreed in the recorded confession that his statement was not coerced. Petitioner fails to make any compelling argument on appeal that the habeas court abused its discretion in finding that trial counsel was not ineffective in failing to investigate the alleged circumstances surrounding petitioner's confession.

Petitioner also argues, as he did below, that trial counsel was ineffective for conceding to the jury that petitioner killed the victim; failing to investigate an eyewitness's claim that the shooter appeared to be "black or Hispanic [be]cause he was dark skinned," which is a physical description that does not match petitioner's; failing to impeach the testimony of an eyewitnesswho, at the first trial, described the shooter as having a long beard and pony tail, but in the re-trial, failed to mention a pony tail; failing to undermine the testimony of the State's firearm expert; and failing to re-test the gunshot residue found on petitioner's hand, which petitioner now claims could have been alternatively explained by the fact that, on the morning of the murder, he had used two different nail guns that "create[d] powder residue." We find no error. Despite petitioner's new theory of actual innocence, the evidence that he shot the victim was overwhelming. Thus, it is abundantly clear that trial counsel, in concert with petitioner, acted reasonably in conceding the same in order to focus defense efforts on persuading the jury to convict on a charge that was lesser than the indicted charge of first-degree murder and/or to recommend a sentence of mercy. The above arguments that petitioner claims support an ineffective assistance claim are wholly inconsistent with the well-founded defense strategy employed by trial counsel in both trials and in his appeals of those convictions. The habeas court did not err in concluding that trial counsel was not ineffective in this regard.

Petitioner's remaining arguments in support of his claim that trial counsel was ineffective need not be addressed. First, petitioner argues that trial counsel failed to dispute the State's claim that petitioner planned a "sneak attack" on the victim and that the State improperly used "[s]neak attack rhetoric" "extensively" throughout its case-in-chief and during closing argument. Petitioner argues that trial counsel's...