Opinion
No. 17-0773
04-09-2018
Roy Wisotzkey, Petitioner Below, Petitioner v. Ralph Terry, Acting Warden, Mt. Olive Correctional Center, Respondent Below, Respondent
(Berkeley 17-C-348)
MEMORANDUM DECISION
Petitioner Roy Wisotzkey, appearing pro se, appeals the August 15, 2017, order of the Circuit Court of Berkeley County denying his petition for writ of habeas corpus. Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Center, by counsel Shannon Frederick Kiser, filed a summary response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying habeas relief.
Petitioner originally listed David Ballard as respondent to this action. However, Ralph Terry is now the acting warden at the facility in question. Accordingly, the proper public officer has been substituted pursuant to Rule 41(c) of the Rules of Appellate Procedure.
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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.
Following a jury trial in August of 2013, petitioner was convicted of felony murder, first-degree robbery, conspiracy, and burglary. Petitioner was sentenced to life imprisonment, with parole eligibility for felony murder; fifty years of incarceration for first-degree robbery; not less than one nor more than five years for conspiracy; and not less than one nor more than fifteen years for burglary. The felony murder and robbery sentences were ordered to run consecutively to each other and concurrently to the sentences for conspiracy and burglary. Petitioner appealed his conviction and this Court affirmed the trial court's rulings. See State v. Wisotzkey, No. 13-1240, 2014 WL 6607462 (W.Va. Nov. 21, 2014)(memorandum decision).
In May of 2016, petitioner filed a pro se petition for writ of habeas corpus. The circuit court appointed habeas counsel and permitted counsel to file an amended petition. Counsel filed the amended petition and a Losh list alleging thirteen assignments of error. Thereafter, the circuit court summarily dismissed the amended petition. Petitioner did not appeal that decision.
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). --------
In July of 2017, petitioner filed a second petition for writ of habeas corpus alleging ineffective assistance of habeas counsel. The circuit court found that the record was adequately detailed to proceed without a hearing on the petition. Ultimately, the circuit court found that petitioner was not entitled to relief and denied the petition without further proceedings by its August 15, 2017 order. Petitioner appeals from that order.
We apply the following standard of review in habeas appeals:
"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).Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).
On appeal, petitioner argues that the circuit court erred by denying his second petition for writ of habeas corpus based on the alleged ineffective assistance of petitioner's first habeas counsel. Petitioner asserts that the circuit court erred in (1) concluding that habeas counsel was adequately prepared for the first habeas proceeding; (2) concluding that petitioner offered no evidence establishing how habeas counsel's performance was deficient; and (3) increasing the burden of proof by requiring petitioner to show what evidence would have been discovered, but for petitioner's ineffective counsel. Respondent argues that petitioner fails to prove that his habeas counsel rendered ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the appeal should be denied. We agree with respondent.
We review ineffective assistance of counsel claims as follows:
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.Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Furthermore,
[i]n reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6.
On appeal, petitioner's argues that his first habeas counsel was ineffective and the circuit court erred in finding that counsel was adequately prepared. Petitioner argues that the circuit court's order stating that many of petitioner's habeas claims were a "mere recitation of grounds without factual support" is proof of counsel's ineffectiveness. Petitioner asserts that this is evidence enough to show that his habeas counsel was deficient. Petitioner must show that "[c]ounsel's performance was deficient under an objective standard of reasonableness." Miller, 194 W.Va. at 6, 459 S.E.2d at 117. Denial of a petition alone, however, is not enough to show that counsel's performance was deficient under an objective standard of reasonableness.
Petitioner emphasizes that he was appointed counsel for his first pro se petition because his claims were meritorious and that the dismissal after appointment of counsel was the fault of counsel. Yet, petitioner's counsel asserted the same claims from petitioner's pro se petition and the petition was still denied. Petitioner claims that his counsel did not review the record, yet the amended petition includes a detailed recitation of facts apparently written by counsel. Further, petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Miller, 194 W.Va. at 6, 459 S.E.2d at 117. Petitioner asserts that the circuit court would have granted habeas relief if he was adequately represented. Again, however, petitioner states no basis other than denial of the petition was the effect of ineffective assistance of counsel. Accordingly, we find that the circuit court did not err in denying petitioner's second petition.
Further, petitioner argues that the circuit court erred in denying his petition because he received ineffective assistance of habeas counsel. Specifically, petitioner claims that his attorney's representation was deficient because (1) habeas counsel failed to allege ineffective assistance of appellate counsel for a failure to raise certain errors on direct appeal; (2) habeas counsel failed to adequately investigate and brief certain claims; and (3) petitioner was "duped" into signing a Losh list. However petitioner also raised these arguments in his petition below, the circuit court thoroughly addressed these claims in its order denying petitioner's second petition for habeas relief. The circuit court's order includes well-reasoned findings and conclusions as to the assignment of error concerning ineffective assistance of counsel now raised on appeal, and we find no error or abuse of discretion in the circuit court's denial of petitioner's amended petition. Because we find no clear error or abuse of discretion in the circuit court's order or record before us, we hereby adopt and incorporate the circuit court's findings and conclusions as they relate to petitioner's assignment of error raised on appeal and direct the Clerk to attach a copy of the circuit court's August 15, 2017, "Order Dismissing Petition for Writ of Habeas Corpus" to this memorandum decision.
For the foregoing reasons, we affirm the circuit court's August 15, 2017, order denying petitioner's instant petition for writ of habeas corpus.
Affirmed. ISSUED: April 9, 2018 CONCURRED IN BY: Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
Image materials not available for display.