Roger P. v. Pszczolkowski, 20-0468

• Decision Date: 20 May 2021
• Docket Number: No. 20-0468,20-0468
• Court: West Virginia Supreme Court
• Parties: Roger P., Petitioner Below, Respondent v. Karen Pszczolkowski, Superintendent, Northern Correctional Facility, Respondent Below, Respondent

Roger P., Petitioner Below, Respondent v. Karen Pszczolkowski, Superintendent,Northern Correctional Facility, Respondent Below, Respondent

No. 20-0468

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

May 20, 2021

(Raleigh County (14-C-1039-B)

MEMORANDUM DECISION

Petitioner Roger P., by counsel Kyle G. Lusk, Matthew A. Bradford, and Brandon L. Gray, appeals the Circuit Court of Raleigh County's June 11, 2020, order denying his second petition for a writ of habeas corpus.¹ Respondent Karen Pszczolkowski, Superintendent, Northern Correctional Center, by counsel Lara K. Bissett, filed a response to which petitioner submitted a reply.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

In May of 2005, petitioner was indicted on eight counts of first-degree sexual assault; four counts of first-degree sexual abuse; four counts of incest; and four counts of sexual abuse by a parent, guardian, or custodian. His trial counsel filed motions for discovery and a motion to suppress; counsel also took steps to obtain a competency and criminal responsibility evaluation.² Petitioner was tried before a jury on January 30 and February 2, 2006, and he was convicted ofeleven counts: three counts of first-degree sexual assault; one count of first-degree sexual abuse; three counts of incest; and four counts of sexual abuse by a parent, guardian, or custodian. Trial counsel filed post-conviction motions for new trial and judgment of acquittal, but the circuit court denied those motions. Petitioner was sentenced to a term of incarceration of thirty to seventy years.

Petitioner filed his first petition for a writ of habeas corpus seeking resentencing by the circuit court so that he could file a direct appeal. The circuit court denied that petition, and petitioner appealed that denial to this Court in [Roger P.] v. McBride, No. 11-0525, 2012 WL 3055668 (W. Va. Apr. 16, 2012) (memorandum decision) ("Roger P. I"). In that memorandum decision, this Court reversed the circuit court's denial of habeas corpus relief, and petitioner was resentenced pursuant to that decision. Petitioner then filed his direct appeal through appellate counsel, Charles Catlett and Crystal Walden. See State v. Roger P., No. 12-0792, 2014 WL 620483 (W. Va. Feb. 14, 2014) (memorandum decision) ("Roger P. II"). Mr. Catlett was petitioner's original appellate counsel; he filed the notice of appeal alleging that the jury instruction at issue omitted an element of intent and that the circuit court erred by failing to grant petitioner's motion to strike a juror for cause. The circuit court found that those strategic decisions are not reviewable in habeas proceedings pursuant to State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), and State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995). Prior to oral argument, Ms. Walden replaced Mr. Catlett as appellate counsel and argued the case before this Court. Ms. Walden made a strategic decision to waive the second ground for appeal and presented only the improper jury instruction argument. This Court affirmed petitioner's conviction by memorandum decision in Roger P. II. In that decision, this Court found that the trial court's instruction was incorrect but concluded that it was harmless error and petitioner's conviction was based on "extensive and overwhelming evidence of petitioner's commission of sexual acts against his stepdaughter."

Petitioner, acting as a self-represented litigant, filed a petition for a writ of habeas corpus on November 10, 2014, alleging the following: (1) ineffective assistance of trial counsel based on counsel's failure to file a motion for mental examination and failure to move for a speedy trial; (2) ineffective assistance of trial counsel based on counsel's "failure to be prepared for trial;" and (3) error with respect to the trial court's instruction on the issue of intent. By order entered on March 6, 2015, the circuit court denied the first and third grounds, finding that the first was not supported by the record and this Court had conclusively determined the merits of the third. In that same order, the court appointed counsel and allowed petitioner to set forth grounds for relief related to the following: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel with respect to the trial court's denial of the final defense motion to continue; and (3) ineffective assistance of appellate counsel with respect to issues raised in post-trial motions.

Petitioner, through counsel, filed an amended habeas petition on August 25, 2015, setting forth the grounds for relief allowed by the March 6, 2015, order. The circuit court held a hearing on the amended habeas petition on November 27, 2017, during which former trial counsel, Hassan Rasheed, and former appellate counsel, Ms. Walden, testified. In January of 2018, petitioner's former trial counsel, Gary Frasher, and former appellate counsel, Mr. Catlett, testified. Mr. Catlett testified that he concentrated on two issues on appeal as "a matter of strategy . . . if I have one good issue or two good issues, [I] stick to those, because that forces the Court to address those issues rather than write an opinion about a third issue and, in passing, say, oh, those other issues are without merit." Similarly, Ms. Walden testified regarding her decision to abandon the secondground for appeal, stating there are "some things that are stronger than others and, if you fill your brief with 14 issues, . . . in my opinion from my experience, that's a signal to the Court that you have a weak case and you're throwing everything against the wall and hoping that something will catch their attention." Ms. Walden further testified that it was her strategic decision that the instructional issue was the stronger issue so she wanted to limit the Court's discussion to that issue. Petitioner also submitted a Losh list detailing his acknowledged waiver of claims.³ The circuit court deemed petitioner's claims, aside from ineffective assistance of trial counsel claims, waived "as there was no direct claim in the [p]etition beyond ineffective assistance of counsel." Both petitioner and the State were ordered to submit proposed findings of fact and conclusions of law to the circuit court.

In its June 11, 2020, order denying petitioner's instant petition for habeas corpus, the circuit court found that petitioner could have previously advanced his ineffective assistance of trial counsel claim but failed to do so. It also concluded that petitioner never offered evidence to rebut the presumption, under West Virginia Code § 53-4A-1(c), that he intelligently and knowingly waived this claim. Despite this finding of waiver, the circuit court addressed the substance of petitioner's ineffective assistance of counsel claims, beginning by categorizing petitioner's assertions as follows: (1) defense counsel had no coherent theory of the case; (2) defense counsel's opening statement was completely ineffectual; (3) defense counsel made no effort to impeach the credibility of any of the State's witnesses; (4) defense counsel put on no affirmative defense and called no defense witnesses; and (5) defense counsel's closing argument all but conceded the inevitable. As to the sixth ground of his habeas petition, the circuit court found that although "it appears that [p]etitioner waived any claim on this ground in the First Amended Petition, such claim nevertheless will be addressed on its merits using the 'objective standard of reasonableness' element of the Strickland/Miller test."⁴

The circuit court went on to find that the defense goal at trial was "to either reduce the severity of the individual charges or to reduce their number by requiring a very specific showing of when and what occurred with each count of the indictment." Mr. Frasher testified that petitioner's multiple confessions would have been difficult to overcome and that, if the confessions were believed, it would result in a high probability of conviction on some counts. The circuit court concluded that defense counsel's strategy was "objectively reasonable considering the overwhelming evidence against [p]etitioner." With regard to petitioner's contention that counsel's opening statement was ineffectual, the circuit court concluded that a review of that statement demonstrates that it was objectively reasonable and was made in an attempt to encourage the jury to keep an open mind and consider the testimony with a skeptical eye. In addressing the argument that trial counsel did not impeach the credibility of the State's witnesses, the circuit court found that "the trial record demonstrates that this ground is baseless . . . [because t]rial counsel made a reasonable cross examination of each and every State witness[, including addressing] biases against [petitioner], examined motivations regarding the custody of the victim, and analyzed alleged preconceptions on the part of the investigating officer."

With regard to petitioner's assertion that trial counsel failed to present an affirmative defense or call witnesses, the circuit court found that "[a] review of the entire record confirms that the strategic decision to attack specific counts in an attempt to reduce the severity or number of charges was a reasonable strategy. . . . Accordingly, [petitioner] fails to sustain his burden of proving that defense counsel's strategy constituted ineffective assistance of counsel." Regarding petitioner's contention that trial counsel's closing argument conceded the inevitable, the circuit...