White v. Plumley, 14-1272

• Decision Date: 23 November 2015
• Docket Number: No. 14-1272,14-1272
• Court: West Virginia Supreme Court
• Parties: Larry S. White II, Petitioner Below, Petitioner v. Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent

Larry S. White II, Petitioner Below, Petitioner v. Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent

No. 14-1272

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 23, 2015

(Jackson County 11-C-29)

MEMORANDUM DECISION

Petitioner Larry S. White II, by counsel Shawn D. Bayliss, appeals the Circuit Court of Jackson County's October 28, 2014, order denying his petition for writ of habeas corpus. Respondent Marvin Plumley, Warden, by counsel Benjamin F. Yancey III, filed a response. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition because he established that he was entitled to relief based upon the State's suppression of exculpatory evidence, the State's use of illegally obtained evidence, and that he was denied the right to effective assistance of counsel.

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 February of 2008, petitioner and his co-defendant were each indicted on one count of first-degree murder and one count of conspiracy to commit first-degree murder for the death of Mohamed Mahmoud A. Mahrous ("the victim").¹ Following trial, the jury found petitioner guilty of both felonies and recommended mercy for the murder charge. Thereafter, in December of 2008, petitioner filed a motion for new a trial which was denied by the circuit court. The circuit court then sentenced petitioner to life with mercy for the charge of first-degree murder, and a term of not less than one year nor more than five years for the conspiracy charge. The two sentences were ordered to be served consecutively.

In July of 2009, petitioner filed an "Amended Renewed Motion for New Trial" alleging that the State failed to disclose court records from North Carolina that documented the issuance of domestic violence protective orders against the victim concerning petitioner's co-defendant, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and State v. Youngblood, 221 W.Va. 20, 650S.E.2d 119 (2007). Several days later the circuit court held a hearing on petitioner's motion and denied petitioner relief.

In February of 2010, petitioner filed a direct appeal with this Court asserting that the circuit court committed the following errors: (1) failing to grant his motions to strike two prospective jurors; (2) convicting him upon insufficient evidence; (3) admitting evidence that was the fruit of an unlawful search of a cellular telephone; (4) admitting certain out-of-court statements under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence; and (5) refusing to grant his "Amended Renewed Motion for New Trial" based upon alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court held oral argument on January 12, 2011, pursuant to Rule 20 of the Rules of Appellate Procedure. By order submitted February 10, 2011, this Court affirmed the judgment finding petitioner guilty of one count of first-degree murder and one count of conspiracy to commit a felony, and sentencing him to life with mercy for the first-degree murder conviction, and a consecutive sentence of one to five years for the conspiracy. See State v. White, 227 W.Va. 231, 707 S.E.2d 841 (2011) (Davis, J.), republished as, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011).

In March of 2011, petitioner, pro se, filed his first petition for writ of habeas corpus in circuit court. Thereafter in January of 2014, the circuit court appointed petitioner counsel and filed an amended petition for writ of habeas corpus alleging the following grounds for relief: 1) ineffective assistance of counsel; 2) pre-trial publicity; 3) consecutive sentences; 4) coerced confession; 5) suppression of helpful evidence by the prosecutor (Brady violation); 6) challenges to the composition or procedure of the grand jury; 7) refusal to subpoena witnesses (ineffective counsel); 8) evidentiary rulings regarding his renewed motion for a new trial; 9) prejudicial statements by the trial judge; 10) prejudicial statements by the prosecutor; 11) sufficiency of the evidence; 12) more severe sentence than expected; 13) excessive sentence; 14) impaired counsel (ineffective counsel); and 15) rate of compensation for counsel. In August of 2014, petitioner filed a motion to continue and a motion for leave to amend his amended petition for writ of habeas corpus asserting that Riley v. California, 134 S.Ct. 2473 (2014), may apply to his case.² The circuit court then held an omnibus evidentiary hearing, after which it denied petitioner habeas relief. It is from this order that petitioner appeals.

This Court reviews appeals of circuit...