                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS
                                   FILED
                                                                                   November 6, 2015
                                                                                  RORY L. PERRY II, CLERK

                                                                                SUPREME COURT OF APPEALS

                                                                                    OF WEST VIRGINIA

Ricky Vincent Pendleton,
Petitioner Below, Petitioner

vs) No. 14-1307 (Berkeley County 14-C-639)

David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent.





                                 MEMORANDUM DECISION
        Petitioner Ricky Vincent Pendleton, pro se, appeals the November 26, 2014, order of the
Circuit Court of Berkeley County denying 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. In conjunction with his appeal, petitioner filed a motion
seeking the production of the May 22, 1996, grand jury transcript, to which respondent filed a
response.1

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On May 22, 1996, petitioner was indicted on the felony charges of kidnapping, malicious
wounding, grand larceny, and aggravated robbery. These charges stemmed from an incident in
which petitioner and an accomplice beat Ryan Frankenberry and robbed him of his wallet and
vehicle. The beating was so severe that the victim required multiple surgeries, including the
insertion of titanium plates and screws in the victim’s facial bones. Following a jury trial,
petitioner was found guilty on all counts, and the jury recommended mercy in regard to his
conviction for kidnapping. Petitioner was thereafter sentenced to life imprisonment with mercy

       1
           We will address petitioner’s motion with the merits. See discussion infra.

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for his kidnapping conviction, two to ten years in prison for his conviction of malicious
wounding, one to ten years in prison for his conviction of grand larceny, and sixty years in prison
for his conviction of aggravated robbery. These sentences were ordered to run consecutively to
one another and consecutively to a prior federal sentence. Petitioner appealed his convictions to
this Court, which refused his appeal. Petitioner subsequently had his omnibus habeas corpus
proceeding in Pendleton v. Ballard, No. 12-0653, 2013 WL 2477245, at *7 (W.Va. Supreme
Court, May 24, 2013) (memorandum decision), in which petitioner was represented by counsel
and the circuit court specifically found that “there [was] no need for an evidentiary hearing.”2
Petitioner appealed the circuit court’s denial of habeas relief, which this Court affirmed. Id. at *2.

        On September 15, 2014, petitioner filed the instant habeas petition alleging ineffective
assistance of counsel in the first habeas proceeding. The circuit court summarily denied the
petition on November 26, 2014. In its order, the circuit court found that every ground for relief
petitioner raised was previously waived and/or adjudicated (either on direct appeal or in
Pendleton) except for two issues. The circuit court determined that within context of ineffective
assistance of habeas counsel, petitioner could still argue (1) that petitioner’s right to a speedy trial
was violated; and (2) that the grand jury that indicted petitioner was conducted in an improper
way. As to the first issue, the circuit court found that habeas counsel chose not to focus on the
speedy trial argument because it was logically inconsistent with petitioner’s contention that trial
counsel did not have enough time to prepare for trial and that a continuance should have been
granted. The circuit court found this was a strategic decision that habeas counsel was entitled to
make. Second, the circuit court determined that in arguing that the grand jury procedures were
unfair, petitioner was contending that the victim’s statement to the police was wrongfully
withheld from the grand jury. The circuit court concluded that habeas counsel properly made the
strategic decision not to focus on this argument to maintain logical consistency because, in
Pendleton, petitioner was also claiming that the State utilized irrelevant evidence against him.3
Accordingly, the circuit court concluded that neither instance constituted ineffective assistance.



       2
        In Syllabus Point 2 of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606, 608 (1981),
this Court held, as follows:

                        A judgment denying relief in post-conviction habeas corpus
               is res judicata on questions of fact or law which have been fully and
               finally litigated and decided, and as to issues which with reasonable
               diligence should have been known but were not raised, and this
               occurs where there has been an omnibus habeas corpus hearing at
               which the applicant for habeas corpus was represented by counsel
               or appeared pro se having knowingly and intelligently waived his
               right to counsel.
       3
         While a careful reading of the victim’s statement belies petitioner’s assertion that he did
not participate in beating the victim, petitioner asserts that the statement inculpates only
petitioner’s accomplice in the crimes against the victim. See discussion infra.
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        Petitioner now appeals the circuit court’s November 26, 2014, order denying his habeas
petition. 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, 418, 633 S.E.2d 771, 772 (2006). In West
Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (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, 6, 459 S.E.2d 114, 117 (1995).

        On appeal, the parties dispute whether every ground for relief except for the two issues
identified by the circuit court was adjudicated and/or waived in prior proceedings. “A prior
omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known
or which with reasonable diligence could have been known; however, an applicant may still
petition the court on the following grounds: ineffective assistance of counsel at the omnibus
habeas corpus hearing[.]” Syl. Pt. 4, Losh, 166 W.Va. at 762-63, 277 S.E.2d at 608. Upon review
of our memorandum decision in Pendleton, which adopted and incorporated the circuit court’s
order denying that habeas petition, we agree with respondent that the doctrine of res judicata bars
petitioner from raising any issue other than the two grounds that the circuit court addressed in the
instant case: (1) that petitioner’s right to a speedy trial was violated; and (2) that the grand jury
that indicted petitioner was conducted in an improper way.

        As to the first of those two issues, we agree with the circuit court that habeas counsel’s
decision not to emphasize the argument that petitioner’s right to speedy trial was violated
constituted a strategic decision rather ineffective assistance. In Syllabus Point 6 of Miller, we
held, in pertinent part, that in judging ineffective assistance of counsel claims, courts are to refrain
“from engaging in hindsight or second-guessing of trial counsel’s strategic decisions.” 194 W.Va.
at 6, 459 S.E.2d at 117. More fundamentally, we note that petitioner acknowledges that he was
arraigned on March 16, 1998, and went to trial on July 21, 1998, but complains of a pre­
arraignment delay in bringing him to trial.4 In State v. Carter, 204 W.Va. 491, 493-95, 513 S.E.2d
718, 720-22 (1998), we reaffirmed that a pre-arraignment delay does not count toward the
running of the three-term rule and, therefore, does not violate our speedy trial statute, West
Virginia Code § 62-3-21. See Syl. Pt. 1, State v. Kellison, 56 W.Va. 690, 47 S.E. 166 (1904),
overruled on other grounds by, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964)
(same). Therefore, the argument that petitioner sought for counsel to make is without merit.
       4
        Petitioner was apprehended in the State of New Jersey and was, thereafter, in federal
custody for a time.

                                                       3

Accordingly, we conclude that it was not ineffective assistance for counsel not to make the
argument.

        Second, petitioner contends that the victim’s statement to the police was wrongfully
withheld from the grand jury. Respondent counters that the victim’s statement was not withheld
from the grand jury. Respondent further asserts that petitioner was not entitled to the grand jury
transcript because the law enforcement officer who appeared at the grand jury did not testify at
trial. We note that, in Pendleton, we rejected petitioner’s argument that he was prejudiced by the
non-disclosure of the grand jury transcript as lacking “any support.” 2013 WL 2477245, at *17.
Nevertheless, petitioner speculates that the officer misled the grand jury into believing that the
victim’s statement supported probable cause that petitioner participated in the attack on the
victim. Upon a careful reading of the victim’s statement, we determine that the statement did
support probable cause that petitioner took part in the beating because the victim indicates that
petitioner “must have been” present given that the victim was “bombarded” during the attack.
Therefore, we deny petitioner’s motion seeking the production of the May 22, 1996, grand jury
transcript and conclude that the circuit court did not abuse its discretion in denying petitioner’s
habeas petition.

        For the foregoing reasons, we affirm the circuit court’s November 26, 2014, order denying
petitioner’s petition for writ of habeas corpus.

                                                                                         Affirmed.

ISSUED: November 6, 2015


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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