Thomas B. v. Ames, No. 18-0980

• Decision Date: 23 March 2020
• Docket Number: No. 18-0980
• Court: West Virginia Supreme Court
• Parties: Thomas B., Plaintiff Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Defendant Below, Respondent

Thomas B., Plaintiff Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex,

Defendant Below, Respondent

No. 18-0980

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 23, 2020

(Marion County CC-24-2011-C-320)

MEMORANDUM DECISION

Petitioner Thomas B., by counsel Justin Gregory, appeals the Circuit Court of Marion County's October 3, 2018, order denying his petition for writ of habeas corpus.¹ Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Benjamin F. Yancey, III, submitted a response.

The Court has considered the parties' briefs and 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.

Petitioner was arrested on January 5, 2007, and charged with three counts of sexual abuse by a parent, guardian, or custodian and three counts of incest. Petitioner and his family retained Charles E. Anderson as petitioner's attorney. On January 11, 2007, the following additional charges were added: nineteen counts of sexual abuse by a parent, guardian or custodian; seven counts of incest; seven counts of sexual assault; and eight counts of use of obscene matter with intent to seduce a minor. On January 19, 2007, petitioner waived his preliminary hearing based upon the advice of his counsel. On February 5, 2007, petitioner was indicted by the grand jury in a forty-four count indictment with the following: seven counts of sexual assault in the first-degree; fourteen counts of sexual abuse by a parent, guardian, or custodian; fourteen counts of incest; seven counts of sexual assault in the second-degree; and two counts of use of obscene matter with intent to seduce a minor.

Petitioner was tried before a jury in April and May of 2008. The jury found petitioner guiltyof all counts, with the exception of one count of use of obscene matter with intent to seduce a minor. Petitioner was sentenced to confinement in a state penitentiary for not less than fifteen nor more than thirty-five years for each of seven counts of sexual assault in the first-degree; not less than ten nor more than twenty years for each of seven counts of sexual abuse by a parent, guardian, or custodian; not less than five nor more than fifteen years for each of seven counts of incest; not less than ten nor more than twenty-five years for each of seven counts of sexual assault in the second-degree; not less than ten nor more than twenty years for each of seven counts of sexual abuse by a parent, guardian, or custodian; not less than five nor more than fifteen years for each of seven counts of incest; and not more than five years for the count of use of obscene matter with intent to a seduce minor.² The circuit court denied petitioner's request for home confinement and refused to consider probation as an alternative sentence.

Petitioner appealed his conviction to this Court in Appeal No. 090275, but that petition was refused by this Court by order entered on June 3, 2009. Pursuant to petitioner's request, the circuit court then appointed habeas counsel for petitioner, Robyn Babineau. However, on November 17, 2009, petitioner filed a petition for writ of habeas corpus without the assistance of counsel. On May 14, 2010, Ms. Babineau filed a motion to withdraw as counsel, and the circuit court entered an order substituting attorney Heidi M. George Sturm to represent petitioner. On October 25, 2011, Ms. Sturm filed a letter with the circuit court wherein she informed petitioner that after reviewing his case she did not believe he had a valid claim for habeas corpus relief. On November 27, 2011, petitioner filed a second habeas corpus petition before the circuit court without the assistance of counsel. On November 28, 2011, the circuit court permitted Ms. Sturm to withdraw as habeas counsel.

On November 29, 2011, petitioner filed a petition for a writ of mandamus with this Court, which was refused on March 23, 2012, as moot. The circuit court entered an order commencing an omnibus proceeding, and it appointed attorney D. Conrad Gall as petitioner's habeas counsel. Mr. Gall filed an amended habeas petition on December 14, 2011. On January 3, 2012, the circuit court entered an order substituting habeas counsel and appointing Shirley L. Stanton as counsel. On June 18, 2013, petitioner filed a motion for replacement of habeas counsel without the assistance of counsel. The circuit court entered an order substituting attorney Justin Gregory as petitioner's habeas counsel, and on November 29, 2016, Mr. Gregory filed an amended petition for writ of habeas corpus on petitioner's behalf. In that petition, petitioner raised the grounds of ineffective assistance of counsel, improper and prejudicial comments at closing by the prosecutor, and preserved grounds raised as set forth in Losh.³

Omnibus hearings were scheduled in 2017, but they were all continued. On September 1, 2017, the State filed its response to the amended petition. On March 27, 2018, the circuit court conducted an omnibus hearing on the petition, including taking testimony from petitioner's trial counsel, Mr. Anderson; petitioner; victims A.B. and B.B.; and Renee Harris, a psychologist. Atthe conclusion of the hearing, the circuit court gave petitioner's counsel sixty days to submit proposed findings of fact and conclusions of law. Mr. Gregory filed petitioner's Losh list on April 26, 2018, asserting twelve grounds: trial court lacked jurisdiction; prejudicial pre-trial publicity; consecutive sentences for the same transaction; suppression of helpful evidence by prosecutor; ineffective assistance of counsel; excessiveness or denial of bail; no preliminary hearing; constitutional errors in evidentiary rulings; prejudicial statements by the trial judge; prejudicial statements by the prosecutor; more severe sentence than expected; and excessive sentence.

On May 29, 2018, Mr. Gregory filed a second amended petition for writ of habeas corpus, and the State filed its response on June 8, 2018. The circuit court received the State's proposed findings on June 15, 2018, and Mr. Gregory's proposed findings on June 29, 2018. The circuit court entered its "Opinion/Final Order Denying Relief Sought in Petition for Writ of Habeas Corpus" on October 3, 2018, setting forth detailed findings of fact and conclusions of law. The circuit court specifically addressed each of petitioner's twelve alleged errors. It found that petitioner failed to set forth a factual analysis, legal argument, or present any evidence to support his contention that the trial court lacked jurisdiction. It also found that the record was devoid of any evidence that petitioner was prejudiced by any pre-trial publicity, including quoting portions of the jury voir dire.

The circuit court next considered petitioner's ineffective assistance of counsel claims based on various theories. The circuit court ultimately found that

[w]ith regard to all ten of [petitioner's] claims for ineffective assistance of counsel, . . . [petitioner] has failed to meet the standard set forth in the Strickland/Miller test.[⁴] In regard to the first prong, there is no evidence before the [c]ourt sufficient to overcome the presumption that the efforts, acts, or omissions of [trial counsel] fell outside the bounds of reasonable professional assistance. In regard to the second prong, there is no evidence before the [c]ourt to establish a reasonable probability that, but for counsel's errors, the results of the proceedings would have been different.

While petitioner contended that the prosecutor made improper comments on three occasions during her closing argument, the circuit court found that her arguments were based on the evidence and any inferences reasonably derived therefrom failed to satisfy the four-factor test set forth in Sugg.⁵ Petitioner appeals from the denial of his second amended petition for writ of habeas corpus.

We review the circuit court's denial of petitioner's second habeas petition as follows:

"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 reviewthe 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).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

On appeal, petitioner sets forth seven assignments of error. However, we will address only the first two assignments of error because petitioner failed to set forth argument as to the remaining assignments of error.⁶

At the outset, petitioner asserts that the circuit court erred in finding that his claim of ineffective assistance of counsel is without merit. In this assignment of error, he sets forth ten subparts. With regard to ineffective assistance of counsel claims, this Court has long held as follows:

2. "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." Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

3. "In deciding ineffective . . . assistance [of counsel] claims, a court need not address both prongs of the conjunctive standard of Strickland v. Washington,

...