State Ex Rel. William David Belcher v. Hoke, No. 11-0494

CourtSupreme Court of West Virginia
Writing for the CourtMenis E. Ketchum
PartiesState ex rel. William David Belcher, Petitioner Below, Petitioner v. Adrian Hoke, Warden, Respondent Below, Respondent
Docket NumberNo. 11-0494
Decision Date16 February 2012

State ex rel. William David Belcher, Petitioner Below, Petitioner
v.
Adrian Hoke, Warden, Respondent Below, Respondent

No. 11-0494

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: March 9, 2012
Dated: February 16, 2012


(Mercer County 09-C-286)

MEMORANDUM DECISION

Petitioner William David Belcher, by counsel, Derrick W. Lefler, appeals from the circuit court's order denying his petition for post-conviction habeas corpus relief. The State of West Virginia, by counsel, Thomas W. Rodd, has filed its response on behalf of respondent, Adrian Hoke, Warden. Petitioner seeks reversal of the circuit court's decision and habeas corpus relief.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented in the parties' written briefs and the record on appeal, 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 Revised Rules of Appellate Procedure.

Petitioner was convicted by a jury of first degree murder with a recommendation of mercy on April 8, 2008. Petitioner's appeal from his criminal conviction was denied by the Court on March 12, 2009. On June 22, 2009, petitioner filed a pro se petition for a writ of habeas corpus. Thereafter, the circuit court appointed habeas counsel. Following an omnibus hearing, the circuit court entered its February 15, 2011, "Order Denying the Petitioner's Petition for Writ of Habeas Corpus Ad Subjiciendum and Removing It from the Court's Active Docket."

Petitioner now appeals the denial of his habeas corpus petition below and raises two issues: ineffective assistance of counsel and wrongful trial bifurcation. "In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply 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, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).

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The Court has carefully considered the merits of each of petitioner's arguments as set forth in his petition for appeal and has reviewed the record designated on appeal. Finding no error in the denial of habeas corpus relief, the Court affirms the decision of the circuit court and fully incorporates and adopts, herein, the lower court's detailed and well-reasoned "Order Denying the Petitioner's Petition for Writ of Habeas Corpus Ad Subjiciendum and Removing It from the Court's Active Docket" entered on February 15, 2011. The Clerk of Court is directed to attach a copy of the same hereto.

For the foregoing reasons, we affirm.

Affirmed.

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Thomas E. McHugh

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STATE OF WEST VIRGINIA. ex rel. William David Belcher PETITIONER,

v.

Adrian Hoke,1 WARDEN HUTTONSVILLE CORRECTIONAL COMPLEX RESPONDENT.

Civil Action No. 09-C-286

ORDER DENYING THE PETITIONER'S PETITION FOR WRIT OF HABEAS

CORPUS AD SUBJICIENDUM AND REMOVING IT FROM THE COURT'S ACTIVE

DOCKET

On May 10, 2010, this matter came-before the Court, the Honorable Judge Derek C, Swope presiding, for a hearing on the Petitioner's Petitions for Post Conviction Habeas Corpus Relief, brought pursuant to the provisions of Chapter 53, Article 4A of the West Virginia Code, as amended, which were filed by the Petitioner pro se and also by and through Ms court-appointed counsel, Derrick W. Lefler, Esq. The Petitioner filed a pro se Petition for Writ of Habeas Corpus on June 22, 2009. Counsel for Petitioner filed an Amended Petition for Writ of Habeas Corpus on January 20, 2010. Thereafter, counsel for Petitioner filed a Second Amended Petition for Writ of Habeas Corpus on May 7, 2010. The Petitioner and his counsel appeared" at the Omnibus hearing. Scott Ash, Esq., Assistant Prosecuting Attorney, appeared on behalf of the State of West Virginia.

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The Petitioner is seeking post-conviction habeas corpus relief from his May 17, 2004 sentence of life with, mercy for the offense of First Degree Murder. The Petitioner was ordered to be confined for the remainder of his natural life as provided by law for the offense of Murder in the First Degree, and due to the jury's recommendation of mercy, the defendant will be eligible for parole in fifteen (15) years from the date of his confinement, absent a showing that he is being unlawfully detained due to prejudicial constitutional errors in the underlying criminal proceedings.

Whereupon the Court, having reviewed and considered the Petitions, the court files, the transcripts, the arguments of counsel and the pertinent legal authority, does hereby DENY the Petitioner's Petitions for Habeas Corpus relief.

In support of the aforementioned ruling, the Court makes the following GENERAL FINDINGS of FACT and CONCLUSIONS OF LAW:

I. FACTUAL/PROCEDURAL HISTORY

Case No. 03-F-128

A. The Indictment

By a True Bill returned on June 11, 2003, by the Mercer County Grand Jury, the Petitioner, William David Belcher, was indicted for the offense of Murder-First Degree."" The victim was the Petitioner's girlfriend, Bernadette McCoy; The crime occurred on February 27, 2003, at the victim's home on Pisgah Road in Mercer County, West Virginia.

B. Pre-Trial Proceedings

After the shooting but prior to the action of the' Grand Jury, the matter came on for arraignment pursuant to Mr. Belcher having been arrested upon the charge of murder in the First Degree on February 28, 2003. George Sitler, Esq. and Omar Aboulhosn, Esq.,2 were appointed

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to represent Mr. Belcher, and Mr. Belcher was directed to advise the Court by March 7, 2003 if he intended to retain private counsel. Upon a motion by Mr. Belcher's counsel, the Court ordered that the defense be provided with a copy of Mr. Belcher's statement once it was transcribed. The Petitioner's trial counsel further moved the Court to grant Mr. Belcher bond in the matter, to which the State objected. After due consideration; the Court denied the Petitioner's morion for bond, and the Petitioner was remanded to the Southern Regional Jail.

On June 23, 2003, the Defense moved for discovery of any Statement of Mr. Belcher, Mr Belcher's prior record, documents and tangible objects, reports of examinations and tests and the State's witnesses. On July 29, 2003, the Petitioner, by and through counsel George Sitler, Esq., and Omar Aboulhosn, Esq. requested a continuance of the trial, which was subsequently granted.

Defense counsel retained the West Virginia Psychiatric Services of South Charleston and the West Virginia and Process Strategies of Charleston, West Virginia to conduct forensic ' examinations of the Petitioner for use in the preparation and presentation of the Petitioner's case. David A. Clayman, PLD., of Process Strategies opined on September 26, 2003, that the Petitioner "had the factual and rational capacity to understand the proceedings against him and to participate in his defense. The only limitations would arise- from his inability to read materials relevant to his case and to track highly complex concepts and actions within the courtroom. There is no indication that he should not be able to grasp these issues if they are explained to him in simplistic terms." He further found that "(t)here is no evidence that Mr. Belcher was suffering from a mental disease or defect at the time of the alleged crime such that he would have been unable to distinguish right from wrong or to conform his behavior to the law." (See report of Process Strategies; filed on March 30, 2004 as Defendant's Exhibit 1 at the hearing held on March 22, 2004.)

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John D, Justice, M.D. of Psychiatric Services examined the Petitioner on behalf of his first trial counsel on May 20, 2003. He stated that "(i)n summary, it is my professional opinion, . with reasonable medical certainty, that the defendant is Competent to Proceed to Trial and is Criminally Responsible for bis behavior." (See report of Psychiatric Services; filed on March 30, 2004 as Defendant's Exhibit 2 at the hearing held on March 22, 2004).

On July 31st, 2003, the Petitioner retained private counsel, Wayne D. Inge, Esq., and asked that Mr. Inge be substituted as Ms counsel in place of Mr. Sitler and Mr. Aboulhosn, who were granted leave to withdraw as counsel for the Petitioner on August 1, 2003.

On November 19, 2003, the Petitioner, through counsel Mr. Inge moved to continue the trial until the next term of court, and- also moved the Court to allow the Petitioner to undergo further psychological/psychiatric examinations. On November 21, 2003, the Court granted the continuance and set the trial for the February 2004 Term of Court. On December 18, 2003, Petitioner, by and through counsel Mr. Inge filed a Rule 16 Request, a Motion for Exculpatory Evidence, a Motion for Disclosure of 404(b) Evidence, a Motion for Early Disclosure of Rule...

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