State ex rel. Myers v. Painter

• Decision Date: 06 December 2002
• Docket Number: No. 30514.,30514.
• Citation: 576 S.E.2d 277,213 W.Va. 32
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, ex rel. Stanley M. MYERS, Petitioner Below, Appellant v. Howard PAINTER, Warden, Mount Olive Correctional Complex, Respondent Below, Appellee.

576 S.E.2d 277

213 W.Va. 32

STATE of West Virginia, ex rel. Stanley M. MYERS, Petitioner Below, Appellant v. Howard PAINTER, Warden, Mount Olive Correctional Complex, Respondent Below, Appellee.

No. 30514.

Supreme Court of Appeals of West Virginia.

Submitted November 6, 2002.

Decided December 6, 2002.

James T. Kratovil, Charles Town, for the Appellant.

Pamela Jean Games-Neely, Prosecuting Attorney, Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, for the Appellee.

PER CURIAM:

In this appeal from the Circuit Court of Berkeley County, the appellant contends that the circuit court erred in refusing to grant the appellant a writ of habeas corpus. After reviewing the record, we conclude that the appellant was prejudiced by ineffective assistance of counsel in his underlying criminal trial. Furthermore, we find error in that the circuit judge to whom the underlying criminal case was assigned deemed himself disqualified and then improperly appointed another circuit judge to hear the case.

We reverse the circuit court's order denying the appellant's requested writ of habeas corpus, grant the writ, and remand the appellant's case for a new trial.

I.

The appellant, Stanley M. Myers, was convicted by a jury in June 1996 of three counts of first degree sexual assault and one count of third degree sexual assault. In February 1997, the appellant was sentenced to an indeterminate sentence of not less than fifteen nor more than thirty-five years on each of the first three counts, and one to five years on the fourth count. The sentences are to run consecutively. The appellant appealed his conviction to this Court, but the petition for appeal was refused.

The appellant then filed in the circuit court the instant petition for a writ of habeas corpus directed to the appellee, Howard Painter, the warden of the correctional facility where the appellant is incarcerated.¹ The appellant asserted that he was entitled to the writ because, inter alia, he had been denied the effective assistance of counsel at trial, and had been denied the ability to participate in several critical stages of his case. The appellant also asserted he was entitled to the writ because the circuit judge originally assigned to the case—Judge Christopher C. Wilkes—recused himself, and then improperly transferred the matter to another judge in the same circuit, Judge Thomas W. Steptoe, Jr.²

In an order dated March 27, 2001, the circuit court denied the petition for a writ of habeas corpus. The circuit court ruled that the appellant received effective assistance of counsel, and that the intra-circuit transfer of the appellant's case conformed to then-existing administrative rules regarding the disqualification and assignment of replacement judges. It is this order by the circuit court that we review in the instant case; we present the pertinent facts in the body of our discussion.

II.

A.

The appellant challenges the circuit court's conclusion that he received effective assistance of counsel at trial.

As we stated in State ex rel. Daniel v. Legursky, 195 W.Va. 314, 320, 465 S.E.2d 416, 422 (1995), "[a]n ineffective assistance of counsel claim presents a mixed question of law and fact; we review the circuit court's findings of historical fact for clear error and its legal conclusions de novo. This means that we review the ultimate legal claim of ineffective assistance of counsel de novo and the circuit court's findings of underlying predicate facts more deferentially." See also, Syllabus Point. 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.").

This Court has recognized that the Sixth Amendment to the Constitution of the United States and Article III, § 14, of the Constitution of West Virginia not only assures the "assistance of counsel" to a defendant in a criminal proceeding but also assures that such a defendant receives competent and effective assistance of counsel. As stated in Cole v. White, 180 W.Va. 393, 395, 376 S.E.2d 599, 601 (1988): "The right of a criminal defendant to assistance of counsel includes the right to effective assistance of counsel." See State ex rel. Levitt v. Bordenkircher, 176 W.Va. 162, 167, 342 S.E.2d 127, 133 (1986); State ex rel. Wine v. Bordenkircher, 160 W.Va. 27, 30, 230 S.E.2d 747, 750 (1976); State ex rel. Favors v. Tucker, 143 W.Va. 130, 140, 100 S.E.2d 411, 416 (1957), cert. denied, 357 U.S. 908, 78 S.Ct. 1153, 2 L.Ed.2d 1158 (1958); State ex rel. West Virginia-Pittsburgh Coal Co. v. Eno, 135 W.Va. 473, 482, 63 S.E.2d 845, 850 (1951).

Claims of ineffective assistance of counsel are governed by the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and subsequently adopted by this Court in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In Syllabus Point 5 of Miller, we stated:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-prong 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.

Failure to meet the burden of proof imposed by either part of the Strickland / Miller test is fatal to a habeas petitioner's claim. Daniel, 195 W.Va. at 321, 465 S.E.2d at 423.

The first prong of this test requires that a petitioner "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court then must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690,104 S.Ct. at 2066. The petitioner's burden in this regard is heavy, as there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." 466 U.S. at 689,104 S.Ct. at 2065. In Syllabus Point 6 of Miller, we further explained that:

In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

The Strickland Court pointed out that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. This Court has likewise emphasized that counsel's strategic decisions must rest upon a reasonable investigation:

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. "Courts applying the Strickland standard have found no difficulty finding ineffective assistance of counsel where an attorney neither conducted a reasonable investigation, nor demonstrated a strategic reason for failing to do so." Daniel, 195 W.Va. at 320, 465 S.E.2d at 422 (citation omitted).

The second or "prejudice" requirement of the Strickland / Miller test looks to whether counsel's deficient performance adversely effected the outcome in a given case. Furthermore, prejudice must only be proven by a preponderance of the evidence:

One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence.

Syllabus Point 22, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

The appellant has identified a number of separate acts and omissions, several of which we discuss below, where he contends the conduct of his trial counsel was deficient. He argues that there is a reasonable probability that in the absence of these acts and omissions, taken together, the outcome of his trial would have been different.

The appellant points to the fact that written psychological profiles of the victims were prepared and placed under seal in the circuit court file prior to trial, but that copies of the profiles were never provided to the appellant. The circuit court apparently noted at a hearing that some of the information contained in the profiles was inconsistent with prior statements given by the victims. When the appellant's trial counsel asked the prosecutor for a copy of these profiles, the prosecutor allegedly refused to provide the records, and then the appellant's counsel took no further action to obtain these profiles.

In State v. Allman, 177 W.Va. 365, 352 S.E.2d 116 (1986), this Court approved a procedure whereby criminal defense attorneys may apply to the circuit court to obtain a copy of the confidential psychiatric...