Opinion
No. 15-1092
06-21-2016
Antonio Prophet, Petitioner Below, Petitioner v. David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent
(Berkeley County 15-C-66)
MEMORANDUM DECISION
Petitioner Antonio Prophet, pro se, appeals three orders of the Circuit Court of Berkeley County. In the first order, entered February 12, 2015, the circuit court (a) found that petitioner's pro se petition was "not sufficient" for a fair adjudication of his grounds for relief; (b) appointed habeas counsel to file an amended petition; and (c) preserved petitioner's objections to the rulings therein. In the second order, entered June 24, 2015, the circuit court summarily dismissed twenty-two of the grounds raised by petitioner in his habeas proceeding and directed respondent to file an answer to his remaining claims. In the third order, entered October 28, 2015, the circuit court disposed of petitioner's ineffective assistance of counsel claims and denied his petition for a writ of habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Cheryl K. Saville, filed a response, and petitioner filed a reply.
The circuit court's February 12, 2015, and June 24, 2015, orders are under appeal because, when the last order disposing of the last of all claims is appealed, "[that] appeal brings with it all prior orders." Riffe v. Armstrong, 197 W.Va. 626, 637, 477 S.E.2d 535, 546 (1996), modified on other grounds, Moats v. Preston Cnty. Comm'n, 206 W.Va. 8, 521 S.E.2d 180 (1999).
The 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 orders is appropriate under Rule 21 of the Rules of Appellate Procedure.
In 2012, a Berkeley County jury convicted petitioner on two counts of first degree murder and one count of first degree arson following an apartment fire that killed petitioner's girlfriend and her three-year-old son. The jury did not recommend mercy on either of the murder convictions. Accordingly, the circuit court sentenced petitioner to two life terms of incarceration without the possibility of parole for the murder convictions, and to a determinate term of twenty years of incarceration for the arson conviction, to be served consecutively.
Petitioner appealed his convictions which this Court addressed in State v. Prophet, 234 W.Va. 33, 762 S.E.2d 602, cert. denied, ___ U.S. ___, 135 S.Ct. 683, 190 L.Ed.2d 396 (2014), raising the following assignments of error: (1) insufficient evidence; (2) improper cross examination of petitioner regarding a novel written by him; (3) improper comments by the prosecutor on petitioner's post-arrest silence; (4) erroneous refusal to give an instruction proffered by petitioner; (5) prosecutor's use of allegedly perjured testimony; (6) prosecutorial misconduct; and (7) judicial misconduct. This Court rejected the assignments of error and affirmed petitioner's convictions. 234 W.Va. at 40-47, 762 S.E.2d at 609-16.
On February 5, 2015, petitioner filed a petition for a writ of habeas corpus. By order entered February 12, 2015, the circuit court (a) found that petitioner's pro se petition was "not sufficient" for a fair adjudication of his grounds for relief; (b) appointed habeas counsel pursuant to Rule 4(b) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings ("habeas rules") to file an amended petition; and (c) preserved petitioner's objections to the rulings therein. Habeas counsel filed petitioner's amended petition on May 12, 2015, and included a request that the circuit court consider petitioner's pro se petition as if it were "incorporate[d] by reference."
Based on our review of the record, we reject petitioner's claim that the circuit court did not give proper consideration to his pro se petition.
The circuit court entered its June 24, 2015, order that summarily dismissed twenty-two of petitioner's grounds for relief. First, the circuit court dismissed petitioner's claim that, in essence, asked the court to effectively reverse this Court's decision in Prophet for allegedly erroneous rulings therein.
Second, the circuit court found that petitioner waived the following claims because both grounds were capable of being raised in his criminal appeal, but were not: (1) undue media coverage influenced the jury; and (2) the trial court erred in denying his motions to strike two jurors for cause.
Next, the circuit court found the following claims were previously and finally adjudicated in Prophet: (1) insufficient evidence; (2) improper questioning by the prosecutor regarding petitioner's post-arrest silence; (3) erroneous failure to exclude evidence of petitioner's novel; (4) prosecutor's use of allegedly perjured testimony; (5) erroneous refusal to give an instruction proffered by petitioner; and (6) prosecutorial misconduct.
Fourth, the circuit court dismissed the following claims pursuant to Rule 4(c) of the habeas rules because petitioner did not support those grounds with "adequate factual support": (1) judicial misconduct; (2) mental competency at the times of the offenses; (3) mental competency to stand at trial; (4) suppression of exculpatory evidence; (5) prosecutorial falsification of transcript; (6) lack of preliminary hearing; (7) unfair grand jury composition and procedure; (8) defective indictment; (9) improper venue; (10) undue pre-indictment delay; (11) refusal to subpoena witnesses; (12) refusal to disclose witness notes following the witness's testimony; and (13) improper use of informants.
Finally, the circuit court ordered respondent to file an answer and respond to petitioner's claims of ineffective assistance of counsel and that he should receive a new trial because of the cumulative effect of various alleged instances of ineffective assistance.
Respondent filed an answer on September 21, 2015. Thereafter, the circuit court entered its October 28, 2015, order. The circuit court found that it had been "fully briefed" and that an evidentiary hearing "would not aid the [c]ourt" in adjudicating petitioner's ineffective assistance claims. The circuit court determined that neither petitioner's trial counsel nor his appellate counsel were ineffective. Accordingly, the circuit court denied petitioner's habeas petition.
Petitioner assigns error to the circuit court's failure to address the cumulative effect of various alleged instances of ineffective assistance. Respondent counters that the circuit court had no reason to address that issue given its finding that petitioner did not prove any of the alleged instances of inadequate representation. We agree and find that the circuit court had no need to address the cumulative error doctrine.
Petitioner appeals the circuit court's denial of habeas relief. We apply the following standard of review in habeas cases:
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).
Rule 4(c) of the habeas rules provides, as follows:
The petition shall be examined promptly by the judge to whom it is assigned. The court shall prepare and enter an order for summary dismissal of the petition if the contentions in fact or law relied upon in the petition have been previously and finally adjudicated or waived. The court's summary dismissal order shall contain specific findings of fact and conclusions of law as to the manner in which each ground raised in the petition has been previously and finally
adjudicated and/or waived. If the petition contains a mere recitation of grounds without adequate factual support, the court may enter an order dismissing the petition, without prejudice, with directions that the petition be refiled containing adequate factual support. The court shall cause the petitioner to be notified of any summary dismissal.See also Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (holding that a circuit court may deny a habeas petition without a hearing "if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no relief.").
We find that the circuit court's February 12, 2015, June 24, 2015, and October 28, 2015, orders adequately resolve all issues raised by petitioner in his habeas petition except for the following two issues which we now address. First, petitioner contends that the circuit court violated his constitutional right to represent himself, noting that throughout his habeas proceeding, he stated a preference to proceed pro se. "The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace." State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996). We find that despite his stated preference, petitioner opposed a motion by his attorney to withdraw as habeas counsel on the ground that allowing the attorney to withdraw would unduly delay his habeas proceeding. Petitioner also disputed his attorney's assessment that the attorney-client relationship was irreparably broken because he believed that contact between them had been "respectful and cordial." Thereafter, habeas counsel withdrew the motion and continued her representation of petitioner. Given that petitioner took inconsistent positions to whether he should be represented by an attorney, we conclude that petitioner waived his objection to the circuit court's appointment of habeas counsel.
Second, petitioner contends that our decision in Prophet did not address provisions of the United States Constitution and, instead, resolved that appeal solely based on provisions of the West Virginia Constitution. Respondent counters that the circuit court correctly determined that the relevant claims were fully and finally adjudicated in Prophet. We agree with respondent. When we rendered our decision in Prophet, we clearly considered both the United States and West Virginia Constitutions. For example, in addressing petitioner's claim that the prosecutor improperly commented on his post-arrest silence, we discussed the distinction between prearrest silence and post-arrest silence given that "impeachment by use of prearrest silence does not violate the Fourteenth Amendment [to the United States Constitution]." Prophet, 234 W.Va. at 43, 762 S.E.2d at 612 (quoting Jenkins v. Anderson, 447 U.S. 231, 240 (1980)) (Internal quotations and other citations omitted.). With regard to those issues under which only our own decisions are mentioned, we clearly considered the underlying principles of federal constitutional law. See Adkins v. Leverette, 161 W.Va. 14, 19-20, 239 S.E.2d 496, 499 (1977) (noting that "a state may not interpret its constitutional guarantee . . . below the federal [constitutional] level"). Therefore, we conclude that the circuit court did not err in finding that our decision in Prophet fully and finally adjudicated all issues raised therein.
Having reviewed the circuit court's February 12, 2015, "Order Appointing Counsel and Directing Counsel for Petitioner to File An Amended Petition and Completed [Losh] List," June 24, 2015, "Order Summarily Dismissing Certain Grounds and Ordering Respondent to Answer," and October 28, 2015, "Order Denying Petition," we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to all other issues raised by petitioner in this appeal. The Clerk is directed to attach copies of the circuit court's February 12, 2015, June 24, 2015, and October 28, 2015, orders to this memorandum decision. We conclude that the circuit court did not abuse its discretion in denying petitioner's petition for a writ of habeas corpus.
See Losh v. McKenzie, 166 W.Va. 762, 768-770, 277 S.E.2d 606, 611-12 (1981).
Petitioner may raise those grounds dismissed by the circuit court pursuant to Rule 4(c) of the habeas rules in a subsequent petition provided that he supplies adequate factual support for those claims in accordance with that rule. However, we find that the circuit court overlooked that petitioner alleged judicial misconduct in Prophet. We rejected that assignment of error, finding that petitioner's accusations of bias were "frivolous." 234 W.Va. at 46, 762 S.E.2d at 616. Therefore, we find that petitioner may not re-raise the issue of judicial misconduct because that issue was previously and finally adjudicated by our decision in Prophet. --------
For the foregoing reasons, we affirm.
Affirmed. ISSUED: June 21, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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