On
February 26, 2008, the Grand Jury of Jackson County, West
Virginia, returned an Indictment against Petitioner charging
him with one count of first degree murder in violation of
W.Va. Code § 61-2-1 (Count One) and one count of
conspiracy to commit first degree murder in violation of
W.Va. Code § 61-10-31 (Count Two). (Document No. 9-1.)
On April 18, 2008, Petitioner filed his “Notice of
Intent to Rely on Defense of Defendant's Mental
Condition.”
(Document No. 17-2.) On December 20, 2008, following a
five-day jury trial, Petitioner was convicted of both first
degree murder and conspiracy to commit murder. (Document Nos
9-2 and 17-17.) The jury made a recommendation of mercy.
(Id.) On December 22, 2008, the Circuit Court
sentenced Petitioner to life with mercy as to his conviction
for first degree murder and not less than one year nor more
than five years as to his conspiracy conviction. (Document
No. 9-3.) The sentences were ordered to run consecutively to
each other. (Id.)
On
February 20, 2009, Petitioner, by counsel, filed a
“Renewed Motion for New Trial Filed in Light of
Post-Trial Disclosure to Defendant of Material That Should
Have Been Disclosed to Defendant Prior to Trial Pursuant to
Brady v. Maryland.” (Document No. 9-4.) On
July 23, 2009, Petitioner, by counsel, filed an
“Amended Renewed Motion for New Trial Filed in Light of
PostTrial Disclosure to Defendant of Material That Should
Have Been Disclosed to Defendant Prior to Trial Pursuant to
Brady v. Maryland.” (Document No. 9-5.) By
Order filed on September 25, 2009, the Circuit Court denied
the above Motions. (Document No. 9-6.)
On
February 1, 2010, Petitioner, by counsel, Matthew L. Clark
filed a Petition for Appeal with the Supreme Court of Appeals
of West Virginia (“SCAWV”). (Document No. 9-9.)
In his appeal, Petitioner raised the following assignments of
error:
1. The trial court erred in failing to strike two prospective
jurors for cause, Michelle Lemon and Cassia Scott, upon
motion of Petitioner's counsel based upon various answers
given by the prospective juror in voir dire.
2. The trial court erred in not granting Petitioner's
Motion for Judgment of Acquittal made at the close of the
State's case in chief and renewed prior to entry of the
jury's verdict as the evidence on which jury reached a
verdict of guilty on the charges of murder in the first
degree and conspiracy to commit a felony was insufficient as
a matter of law for a reasonable jury to find that the
Petitioner acted with premeditation, deliberation or a
specific intent to kill the alleged victim.
3. The trial court erred in admitting evidence that was fruit
of an unlawful search of a cellular telephone owned by the
Petitioner, Larry S. White, II, and erred in its holding that
Petitioner did not maintain a legitimate, reasonable
expectation of privacy in the electronic data of the cellular
telephone. Said unlawful search produced evidence that [sic]
provided a foundation to obtain further information including
search warrants. Absent the initial unlawful search and the
fruits thereof, little, if any, evidence was present
supportive of the convictions for murder in the first degree
or conspiracy to commit a felony-murder in the first degree.
4. The trial court erred in admitting evidence in violation
of Rule 801(d)(2)(E) of the West Virginia Rules of Evidence
absent a proper foundation for admission of the statements of
alleged co-conspirator.
5. The trial court erred in failing to grant the
Appellant's Amended Renewed Motion for New Trial Filed In
Light Of Post-Trial Disclosure to Defendant of Material That
Should Have Been Disclosed to Defendant Prior to Trial
Pursuant to Brady v. Maryland.
6. The trial court erred in denying Petitioner's Motion
for New Trial as the cumulative error in Petitioner's
trial and the insufficiency of the evidence supportive of
verdicts of murder in the first degree and conspiracy to
commit a felony mandated that a new trial should have been
granted.
7. The trial court erred in denying Petitioner's Motion
for New Trial as cumulative error present in the pretrial,
trial, and post-trial proceedings mandated that a new trial
be granted.
(Id.) On February 1, 2010, the SCAWV granted the
Petitioner's Petition for Appeal. (Document No. 9-10.) On
June 14, 2010, Petitioner filed his Brief. (Document No.
9-11.) On August 11, 2010, the State filed its response
brief. (Document No. 9-12.) On February 10, 2022, the SCAWV
affirmed Petitioner's conviction and sentence. State
v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011))
(“White I”).
B.
First State Habeas Petition (Case
No. 11-C-29):
On
March 3, 2011, Petitioner, acting pro se, filed his
Petition for Writ of Habeas Corpus in the Circuit
Court of Jackson County. (Document No. 9-14.) Subsequently,
the Circuit Court
appointed Shawn D. Bayliss as habeas counsel.
(Id.) On January 20, 2014, Mr. Bayliss filed an
Amended Habeas Petition on behalf of Petitioner.
(Document No. 16-20.) In the Amended Petition, Petitioner
asserted the following grounds for relief:
1. Petitioner was denied effective assistance of counsel at
critical stages of the proceedings in the underlying criminal
matter, in violation of the Sixth and Fourteenth Amendments
of the United States Constitution and Article III
§§ 10 and 14 of the West Virginia Constitution.
This denial deprived him of due process and gave rise to
grave defects in pretrial strategy, plea negotiations, and
the Petitioner's understanding of the nature and possible
consequences of the proceedings against him.
2. The Petitioner believes that the pre-trial publicity in
the Jackson County area was so great that it prevented him
from being able to impanel a fair and impartial jury.
3. The Petitioner believes that his rights have been violated
such that he has been unfairly punished for the trial court
imposing against him consecutive sentences for the same
transaction such that it is an unfair and unjust punishment
for him to be required to serve additional time for what is
essentially the same offense.
4. The Petitioner believes that his right to a fair trial
were greatly prejudiced by the jury being privileged of his
confession to the crimes herein. The alleged confession made
by the Petitioner was coerced, and therefore cannot be a
valid basis for his conviction. In order for this Court to
consider whether or not a confession was coerced, the Court
should conduct an examination based upon the totality of the
circumstances State v. Farley, 192 W.Va. 247, 452
S.E.2d 50 (1994). Mr. White made a confession only after law
enforcement officers had traveled to the State of Indiana and
extradited him back to Jackson County, West Virginia. During
the course of a six (6) hour interview, Mr. White ultimately
confessed to killing the victim. Only after being thoroughly
intimidated for such a protracted period of time, did he
confess. He has no recollection of being properly advised of
his Miranda rights. At no time would Mr. White had [sic] an
expectation that he would be free to leave upon returning to
West Virginia. The coercive atmosphere created by the closed
quarters travel and six (6) hours of investigation without an
attorney present was designed to extract an involuntary
confession from the Petitioner, and therefore, the guilty
pleas should be vacated.
5. Petitioner was denied a fair trial by the suppression of
helpful evidence by
the prosecutor in violation of Brady v. Maryland,
373 U.S. 83 (1963) and State v. Youngblood, 650
S.E.2d 119 (2007).
6. The Petitioner believes that the underlying conviction
should be vacated as his trial counsel failed to obtain,
investigate, review and challenge the composition of the
grand jury or its procedures.
7. The Petitioner believes that the underlying conviction
should be vacated as his trial counsel's refusal to
subpoena certain witnesses and records.
8. The Petitioner believes that the underlying conviction
should be vacated and a new trial granted as the Court
violated his Constitutional rights by making incorrect
rulings on evidentiary issues. This is made manifest in the
Court's denying his renewed Motion for New Trial without
hearing any testimony and thus denying Petitioner the
opportunity to sufficiently test the new evidence and present
his case.
9. The Petitioner believes that the underlying conviction
should be vacated because of inappropriate statements by the
trial judge.
10. The Petitioner believes that the underlying conviction
should be vacated because of inappropriate statements of the
prosecutor.
11. The Petitioner believes that the underlying conviction
should be vacated as there was not sufficient evidence
presented at the trial of his case to support the jury's
findings of guilt.
12. The Petitioner believes that the underlying conviction
should be vacated as he received a severer sentence than he
reasonably expected.
13. The Petitioner believes that the
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