                             STATE OF WEST VIRGINIA
 

                           SUPREME COURT OF APPEALS
 


Don G. Galloway,
Petitioner Below, Petitioner                                                      FILED
                                                                            September 19, 2016
vs) No. 15-1005 (Summers County 12-C-01)                                        RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
David Ballard, Warden,
 

Mount Olive Correctional Center,
 

Respondent Below, Respondent
 



                               MEMORANDUM DECISION
        Petitioner Don G. Galloway, by counsel Paul R. Cassell, appeals the Circuit Court of
Mercer County’s September 18, 2015, order denying his petition for writ of habeas corpus. The
State, by counsel Benjamin F. Yancey III, filed a response in support of the circuit court’s order.
Petitioner filed a reply and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in denying habeas relief because his trial counsel was constitutionally ineffective, his
sentence was disproportionate, and there was cumulative error.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In July of 2008, a Summers County grand jury indicted petitioner on two counts of
possession with intent to deliver, one count of intimidation of and retaliation against a public
officer, three counts of battery on a police officer, and one count of obstructing an officer.
Petitioner, by counsel Jason Parmer, filed a motion to suppress the evidence seized by a search
warrant on the grounds that the search warrant affidavit was “bare bones, conclusory, and
contains false information offered by Deputy James A. Chellis in intentional or reckless
disregard of the truth.” Following a hearing on petitioner’s motion to suppress seized evidence,
the circuit court denied his motion finding that the search warrant did not contain false
information and contained sufficient information to establish probable cause to search
petitioner’s residence. Thereafter, the circuit court permitted Mr. Parmer to withdraw as counsel,
and appointed attorney Jason Grubb the following month to represent petitioner.




                                                 1


        Following a jury trial, petitioner was convicted of one count of possession of a controlled
substance with intent to deliver.1 A recidivist information was filed stating that petitioner had
previously been convicted of voluntary manslaughter, possession of a controlled substance with
intent to deliver, and third degree sexual assault. On February 24, 2010, the circuit court
sentenced petitioner to life as a habitual offender.

        In September of 2010, Petitioner filed a direct appeal with this Court alleging that Deputy
Chellis did not present sufficient evidence within the affidavit or the search warrant itself to
establish probable cause thereby making the search of defendant’s home illegal and requiring the
suppression of all evidence seized as the search violated the Fourth Amendment to the United
States Constitution and Article III, Section 6, of the West Virginia Constitution. By ordered
entered March 11, 2011, this Court affirmed petitioner’s conviction. See State v. Galloway, No.
101185 (W.Va. Mar. 11, 2011)(memorandum decision).2

        Several years later, petitioner, pro se, filed a motion for a new trial based upon newly­
discovered evidence that Juror Andy Ward withheld personal knowledge of the case and
committed misconduct by withholding the fact that he had a prior conflict with petitioner
following an incident in which Juror Ward and petitioner were using drugs. Ultimately, the
circuit court denied petitioner’s motion. In 2014, petitioner filed a petition for writ of habeas
corpus alleging that he received ineffective assistance of counsel, received a disproportionate
sentence, and there was cumulative error. Following an omnibus evidentiary hearing, the circuit
court entered an order denying petitioner’s petition for writ of habeas corpus. This appeal
follows.

       This Court reviews a circuit court order denying habeas corpus relief under the following
standard:

               “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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        On appeal, petitioner argues that the circuit court erred in denying habeas relief based on
his claim that his trial counsel was constitutionally ineffective, his sentence was disproportionate,
and cumulative error.

       1
         Prior to trial, Mr. Grubb filed a motion to sever the possession with intent to deliver
charges from the remaining counts in the indictment. Ultimately, the circuit court granted
petitioner’s motion to sever only the charge of intimidation/retaliation against a public officer.
       2
        This Court refused petitioner’s petition for rehearing. Thereafter, the Supreme Court of
the United States denied petitioner’s petition for a writ of certiorari.
                                                 2

        Our review of the record supports the circuit court’s decision to deny petitioner post­
conviction habeas corpus relief based on errors alleged in this appeal, which were also argued
below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the
assignment of error raised on appeal. Furthermore, petitioner argues that cumulative error in the
proceedings below violated his right to due process of law. See Syl. Pt. 5, State v. Smith, 156
W.Va. 385, 193 S.E.2d 550 (1972) (holding that “[w]here the record of a criminal trial shows
that the cumulative effect of numerous errors committed during the trial prevented the defendant
from receiving a fair trial, his conviction should be set aside, even though any one of such errors
standing alone would be harmless error.”). In light of our rulings on petitioner’s other grounds
for relief, petitioner’s final assignment of error must fail. We have not found numerous errors in
the record before us. As such, we reject petitioner’s argument under the cumulative error
doctrine. Given our conclusion that the circuit court’s order and the record before us reflect no
clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings
and conclusions as they relate to petitioner’s assignment of error raised herein and direct the
Clerk to attach a copy of the circuit court’s September 18, 2015, “Order Denying Writ of Habeas
Corpus” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: September 19, 2016

CONCURRED IN BY:

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

DISSENTING:

Justice Brent D. Benjamin




                                                3


                                                                                                     is'-           JOO::::' 

    ,   "




                                                                                                    r,t)   :J-'.:   ""
                                                                                                    c-,             ~
                        mTHE CIRCUIT COURT OF SUMMERS COUNTY, WEST VIR~
                                                                                                                    o::n
                                                                                                    rn:::;
                                                                                                    -x;~,

                                                                                                    t.r.-'""'l'l
                                                                                                                    tn
                                                                                                                    IT.!
                                                                                                                    -'"    .-
                                                                                                                           ... ~l
                                                                                                                           ! ,;
                                                                                                                           t~   .:

                                                                                                    (J?~:           0:>    G
                                                                                                    0-­
            STATE OF WEST VIRGINIA EX REL,
                                                                                                    :c~,s:          >-     ""'..::::
            DON G. GALLOWAY,                                                                         ~~             3:     l'l
                 Petitioner,                                                                         :<-e:}..
                                                                                                            ~       'R     r::
                                                                                                     ~~;'i
                                                                    .                        <~                     N
                                                                                                                    0
            v.                                                      CIVIL ACllON NO.: 12-C-Ol -,

            DAVID BALLARD, WARDEN, 

            MOUNT OLIVE CORRECllONAL CENTER, 

                 Respondent.                                                                   SEn: 2315

                                    ORDER DENYING WRIT m~HABEAS CORPUS

                     On a prior day, the Petitioner, Don G. Galloway, filed apro sepetition for a Writ of Habeas

            Corpus under West Virginia Code §53-4A-I, and supporting documeots with the Clerk; of this Court.

            On May 1, 2014, the Petitioner filed an ameoded Petition for a Writ of Habeas Corpus.

)                    The Court condocted an omnibus hearing on this Petition on August 14, 2015, with the

            Petitioner appearing in person and by counsel, Paul Cassell, Esq., and the Respondeot appeared by

            the Prosecuting Attorney of Summers County, Arr;y Mann, and the Assistant Prosecuting A ttomey of

            Summers County, Kristin R. Cook After having considered the petition, the supporting documents,

            and the arguments of counsel, and having consulted the appropriate legal authorities, the Court

        DENIES the Petition for a Writ of Habeas Corpus.

                                   FACTUAL AND PROCEDURAL BACKGROUND

                 A. Pretrial

                     The Petitioner was indicted on July 15, 2008, for two counts ofpossession of a controlled

        substance with intent to distribute, one count of intimidation of and retaliation against public officers,

        three counts of battery on a police officer, and one count of obstructing an officer. The underlying

        charges arose from a search of the Petitioner's residence at 140 Railroad Avenue, Hinton, WV. The
)
                                                               1
\
I
    Petitioner was found in a bedroom with an individual named Stepharrie Ratliff When arrested, the

    officers found a bottle of Oxycontin in the Defendant's hand, and an unlabeled bottle ofXanax in a

    drawer in the bedroom, and a large sum of money. Further, the Defendant was involved in an

    altercation with the police, which served as the basis for the charges of intimidation of and retaliation

    against a public officer, battery on a police officer, and obstructing.

            Throughout the course ofthe proceedings, the Petitioner was unsatisfied with his counsel and

    requested new counsel at multiples points during the case. For a portion ofhis pretrial litigation, the

    Petitioner was represented by Jason D. Parmer. Mr. Parmer identified possible issues with the search

    warrant and made a motion to suppress the evidence seized from the search. On January 30,2009,

    the COUlt held a hearing on the motion to suppress and Mr. Parmer identified inconsisten?ies and

    argued that the confidential informants were unreliable, rendering the affidavit insufficient to support

)   issuance of a search warrant Ultimately, the Court ruled against the Petitioner, and held that the

    affidavit was sufficient to support issuance oftb.e search warrant.

            Pursuant to a request by the Petitioner for the appointment of a differ,ent attorney, the Court

    released Jason Parmer as counsel, and appointed Mr. Jason Grubb as counsel ofrecord. Mr. Grubb

    represented the Petitioner from this point on.

            At the time Ivfr. Grubb was appointed, most of the pretrial motions had been heard and

    decided. Mr. Grubb testified at the oIlll1ibus hearing that he reviewed the work performed up to his

    appointment, determined that it was sound work, and did not see any strategy in asking the Court to

    reconsider motions which had already been ruled on. Specifically with regard to the motion to

    exclude the search, Mr. Grubb f"Qund that the COUlt had made up its mind on the matter, and accepted

    that the evidenee would be admitted.



)
                                                        2

)
            Moving forward with lhe case as he received it, :Mr. Grubb determined lhat the best strategy

    was to attack lhe credibility oflhe search warrant and the.seizure ofthe evidence, and to defend lhe

    case under that strategy. Mr. Grubb stated that he believed that it was a very effective strategy, and

    lhought it worked well

       B.   Trial

            Thc first issue complained of at trial occurred during voir dire. The Court asked lhe jury if

    anyone knew the Petitioner, lhenDefendant, lhough any social or business contact Juror Andy Ward

    did not indicate that he knew lhe Petitioner in any way. There is some inconsistency between lhe

    Petitioner and his trial cmmsel as to what happened next The Petitioner asserts in his pleadings lhat

    he told his attorney, he might have known Juror Ward.:Mr. Grubb, trial counsel, testified at lhe

    onmibus hearing lhat the Petitioner never told him that he knew Juror Ward. Defendant fuiled to

)   testify or offer any evidence to refute Mr. Grubb's testimony during the onmibus hearing.

            Petitioner's counsel pursued a trial strategy which highlighted the inconsistencies in the

    search warrant to undermine the State's case, and asserted that the Xanax seized as a result of the

    search belonged to Stephanie Ratliff. Ms. Ratliff was called as a witness by the Petitioner, and she

    testified that the pills belonged to her. On cross-examination, M~. Ratliff admitted that she did not

    remove the label from lhe seized bottle, and lhat she never removed the Xanax bottle from her purse

    and placed it in lhe drawer. Trial Counsel did not enter Ms. Ratliff's prescription into evidence. At

    the onmibus hearing, trial counsel testified that he diligently attempted to acquire lhe prescription,

    bot ultimately was unable to do so.

            During trial, the Defendant waived his Fifth Amendment right to remain silent and testified

    that he removed the Xanax from Ms. Ratliff's purse and he intended to share it between a friend and

    himself, but not to sell it He further testified that the money seized was not earned through drug
)
                                                        3

)
    activity, but rather through work income, gambling, and a tax return. On cross-examination, the

    Prosecution asked the Petitioner whether he could provide his tax return or any other-paperwork

    which would substantiate his claims.

            The final issue in this case involves the recidivist charge. In 2004 the Petitioner was

    convicted ofa manslaughter committed in 1988. Between 1988 and 2004, the Petitioner committed

    and was convicted oftwo additional charges: third degree sexoal assault in 1995, and possession of a

    controlled substance, with intent to distribute, in 2000.

            ill connection with this case, the Petitioner's counsel argued that the Petitioner's 2004

    manslaughter conviction is inapplicable under the recidivism statute, because although it was the

    Petitioner's last conviction, the Petitioner had not been convicted ofmanslaughter before he had

    committed and been convicted ofthe other two charges. Ultimately, the Court rejected that theory

)   and p=itted all three prior convictious to be used in the recidivism charge.

            ill the most recent case, Criminal Case No. 08-F-35, Petitioner was found guilty of one count

    ofpossession of a controlled substance, XaIlllX, with the intent to distribute. After the conviction, the

    State filed an information charging the Petitioner with being a recidivist, pursuant to WVC § 61-11­

    18. The Petitioner was adjudicated to be a recidivist; and sentenced to life imprisonment. This matter

    is now bcforethe Court on the Petitioner's Petition for Habeas Corpus.

                                                     LAW

        A. Habeas Corpus

            Any person convicted of a crime and incarcerated who contends that such denial infringes his

    rightq as to render the convietion or sentence void under the Constitution may file a petition fur the

    writ of habeas corpus see1cing for release from such illegal confinement; or correction of sentence.

    W. Va. Code § 53-4A-l et seq. A writ of habeas corpus is available if and only ifthe contention has
)
                                                        4
,,
 \


     not been previously and finally adjudicated or waived in the proceedings which resulted in the

     conviction and sentence or in any other proceeding which the petitioner has institoted to secure relief

     from such conviction or sentence. Id. Where a petitioner alleges but fails to prove be is being

     illegally held, relief should be denied. Syl. pt. 1, Echard v. Holland, 177 W. Va. 138,351 S.E.2d 51

     (1996).

         B. Ineffective Assistance of Counsel

               Both the United States Constitution and the West Virginia COl1Btitotion guarantee the Right

     to ('-Ounse!. U.S. Const. amend. VI; W. Va. Canst. art. ill, § 14. West Virginia applies the two-prong

     test for ineffuctive assistance of counsel established by the United States Supreme Court in

     Stricldand v. Washington, 466 U.S. 668 (1984). Sy1. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d

     114 (1995). Finrt, counsel's perfOlmance must be deficient under an objective standard of

)	   reasonableness; and second, "there is a reasonable probability that, butfor counsel's unprofessional

     errors, the result of the proceedings wonldhave been different." Strickland. A reasonable probability

     is "a probability sufficient to lnldermine confidence in the outcome." Stricldand at 694.

         C. Cruel and Unusual PunisIunent

               Both the state and federal constitutiol1B prohibit sentences which are disproportionate to the

     crime committed. See State v. Richardson, 214 W. Va. 410, 413, 589 S.E.2d 552,555 (2003). The

     Court applies a two stage analysis to determine whether a sentence is disproportionate: a subjective

     test and a balancing test. First, under the subjective test, "[p]uni'lhment may be constitutionally

     impennissible ... ifit is so disproportionate to the crime for which it is inflicted that it shocks the

     conscience and offends fundamental notiol1B ofbuman dignity." Syl. pt. 5 State v. Cooper, 172 W.

     Va. 266, 304 S.E2d 851 (1983).lfthe punishment is not disproportionate under the subjective test,

     the court must consider the balancing test. Under the balancing test, the Court mnst weigh various
)	
                                                          5
     factors including the age ofthe defendant, prior record of the defendant, rehabilitative potential

     (including post arrest conducl, age and maturity), statements ofthe victim, evaluations made in

    anticipation of sentencing, and remorse ofthe defendant. ld. at 271-72, 856; see also sy1. pt. 6, State

    v. Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009). When reviewing a lire recidivist sentence for

    proportionality, the sentence must be evaluated under two viewpoin1s:

                      first, th.e nature of the third offeI1.<;C and, second, the nature of the
                      other convictions that support the recidivist sentence .... We do not
                      believe that the sole emphasis can be placed on the character of
                      the final felony which triggers the life recidivist sentence since a
                      recidivist statute is also designed to enhance the penalty for persons
                      with repeated felony convictions, i.e., the habitoal offenders.
                      However; for th.e purposes of proportionality, the third felony is
                      entitled to more scrutiny th.an the preceding felony convictions since
                      it provides th.e ultimate nexus to th.e sentence."


    Wamstreet v. Bordenkircher, 166 W. Va. 523,533-34,276 S.E.2d 205,212 (1981) (emphasis
)
    added).

        D. Cumulative F...rror

              When th.e Court finds harmless error, "[tJhe cumulative effect of two or more individually

    harmless errors has th.e potential to prejudice a defendant to the same extent as a single reversible

    error." United State v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990); see also United States v.

    Martinez, 277 F.3d 517,532 (4th. CiT. 2002). The West Virginia Supreme Court ofAppeals has

    similarly held that "[wJhere the record of a eriminal trial shows that the cumulative effect of

    numerous errors committed during the trial prevented the defendant from receiving a fair trial, his

    conviction should be set aside, even th.ough aoy one of such errors standing alone would be harmless

    error." Syl. Pt. 5, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972).

                                                  ANALYSIS

)
                                                         6
    )
                In his Petition, the Petitioner has four essential claims.: ineffective assistance of counsel,

         cruel and unusual punisbment, cumulative error, and all additional Lash list claims.

            A. 	The Petitioner's representation does not evidence ineffective assistanee of counsel.

                Within his ineffective assistance counsel claim, the Petitioner asserts that his representation

        was deficient for five reasons: first, counsel :fuiled to properly investigate and undennine the

        inadequate search warrant; second, counsel falled to properly address the Xanax charge; third,

        counsel ineffectively exercised vair dire and thereby denied the Petitioner his Due Process rights

        with regard to Juror Ward; fourth, counsel improperly permitted the prosecutor to shift the burden of

        proof; and fifth, counsel was ineffective in explaining the effect ofthe state's promise not tei enhance

        the 2004 voluntary n:umslaughter charge.

                        1. 	 Co1l.l1Scl properly investigated and attempted to undermine the search
                            warrant.
)               The Petitioner asserts that counsel's perfonnance was deficient because it failed to

        adequately investigate and exploit the inconsistencies ofthe search warrant. A review of the record

        indicates that the Petitioner had multiple counsel substitutions leading up to trial. Before the

        appointment of Mr. Grubb, his trial attorney, the Petitioner was represented by Mr. Jason D. Parmer.

        Mr. Parmer investigated the case and identified potential issues regarding the search warrant. He

        prepared and filed a MotioD. to Suppress Seized Evidence. That motion was denied in the Court's

        Order Denying Motion to Suppress Seized Evidence.

                Mr. Grubb testified at the omnibus hearing that when he took over the case, he did not see

        any merit in re-litigating those issues already settled, including the motion to suppress. Rather than

        simply dismiss the perceived inconsisteuces however, he focused on them as a trial strategy to

        impeach the credibility oflaw enforcement.

    \
/
                                                           7
              Based on Mr. Grubb actions, it is clear thllt he considered the inconsi<;tencies underlying the

      execution ofthe search warrant and pursued an effective and cohesive trial strategy. Under the first

     prong of Strickland, counsel's performance must be objectively unreasonable. The Court cannot find

     that it was objectively unreasonable to decide not to re-litigate settled issues, and to instead attack the

     ineonsi~tencies   as a trial strategy. 'The Court therefore holds that the Defendant did not receive an

     inewctive assistance of counsel for failure to re-litigate the Motion to Suppress Seized Evidence.

                       2. Counsel effectively addressed the Xanax charge.

             The Petitioner argues that he received ineffective assistance of counsel because Mr. Grubb

     did not produce Ms. Ratliff's prescription for the Xanax which was the subject ofthe Petitioner's

     possession with intent to distribute charge. At trial, the Petitioner's argument was that Ms. Ratliff

     was in possession ofthe Xanax, because it was her prescription. However, the evidence shoWed that

)	   the Xanax was found in a drawer in the bedroOl1l and not in Ms. Ratliff's purse, the label had been

     removed, and she had neitherremoved the medication from her purse, nor removed the label. On

     direct examination at trial, the Defendant testified that he took the medication not to sell, but rather to

     share between himself and a friend. At the omnibus hearing, Mr. Grubb testified that he made

     diligent efforts to contact Ms. Ratliff and track down her prescription, but was unsuccessful. Mr.

     Grubb did however put Ms. Ratliff on the stand at trial to take direct testimony as to the ownership of

     theXanax.

             under the first prong ofStrickland, counsel's performance must be deficient under an

     objective stanclMd ofreasoIlllbleness to constitute ineffective assistance. In the case presently at bar,

     counsel made diligent efforts to track down the prescription, but was unsuccessful. Although he

     could not produce the prescription, he did produce the wituess who directly testified as to ownership

     ofthe medication. Although it may have been preferable to have the prescription, the failure to
)
                                                         8

)
     acquire it after due diligence is not deficient representation under an objective standard of

     reasonableness.

             If the fullure to produce the prescription could be considered objectively umeasonable, tbe

     Defendant's argument would nonetheless full under the second prong of Strickland. MS. Ratliff;

     testi:fied that she did not remove the label from the prescription, nor did she remove it from her purse

    and place it in the drawer. The Petitioner testified that he did take the medication from Ms.. Ratliff

    and intended to share it between him and his friend. There is clear evidence ofpossession by the

    Petitioner, regardless ofwhether the medication was properly proscribed to MS. Ratliff. Therefore,

    the Court holds that the failure to produce Ms. Ratliff's prescription does not constitute ineffeetive

    assistance of counsel.

                    3. 	 Counsel was not ineffeetive during voir dire and the Petitioner's due process
                         rights were not violated.
)
            The Petitioner argues his counsel was ineftective because he failed to make further inquiry of

    Juror Andy Ward as to his past relationships with the Petitioner, and because he fuiled to have Juror

    Ward stricken for cause. The Petitioner asserts that, during voir dire, he told his counsel that he

    might know Juror Ward. His trial counsel, Mr. Grubb denied that the Petitioner told him he might

    know Juror Ward.

            In support ofthe Petitioner's argument, he has submitted a letter from his friend, Dewey

    Mann, stating that Juror Ward was the same Mr. Ward with whom they had previously engaged in

    drug activity. In this same leiter, Mr. Mann recalls a conversation where thc Petitioner told him that

    he thought it was a different Mr. Ward because Juror Ward appeared difterent from the man he

    remembered. At the omnibus hearing, the Prosecutor represented that there are two men in the

    jurisdiction with the name Andy Ward.

)
                                                       9

)
            Under the Strickland standard, the Petitioner must first prove that his counsel '8 performance

     fell below an objective standard ofreasonableness. The Petitioner claims that he told his counsel at

    voir dire that he might know Juror Ward, but does not assert that he was sure, or even confident of

    that fact. Even based on the representations ofhis companion, Mr. Mann, the Petitioner believed

    Juror Ward to be a different person that the Mr. Ward with whom he engaged in drug activity.

    Petitioner failed to offer any evidence on this point at the omnibus hearing.

            Based on the evidence, the Court finds that the Petitioner did not state to his cOUIJBel that he

    knew Juror Ward. 1nereibre, the Court holds that cOUIJBel's performance was not objectively

    unreasonable under the first prong ofStrlc/rland because he was un<k"'l: no duty to make further

    inquiry of Juror Ward or strike him for cause where he did not know there was a potential

    relationship between the Petitioner and the Juror.

                    4. CounseJ did not impennissibly allow the State to shift the burden of proof
)                      becanse the Defendant opened the door to questions about a tax return.

            The Petitioner argues that cOUllBel impemrissibly permitted thc prosecutor to shift the burden

    to the Defendant to prove his innocence in a criminal case. Thc law is clear that the Defendant is

    presumed inoocent until proven guilty. Under the Fifth Amendment, the prosecution cannot compel

    the Defendant to give up his right to remain silent and take the stand. When the Defundant chooses to

    take the stand, however, he is subject to cross-examination on the subjects he raises.

            In this case, the Petitioner waived his right as a criminal Defendant to remain silent. He took

    the stand and testified on direct examination that the currency seized during the search was not

    received from the sale of drugs, but rather from his earnings, gambling wins, and tax return. This

    eurrency was the basis for the possession with intent to distnbute charge. On cross examination, the

    Prosecution asked the Defendant to produce pay stubs and his tax return. The Prosecution further


)                                                        10
)
    inquired about the size of the bills seized from the Petitioner, and initiated a line of questioning to

     suggest that the bills were too large to be earrwd during gambling.

             This line of questioning is directly related to Petitioner's testimony on direct examination.

    When the Petitioner testified that the sei:T~d money was not eamed through drug sales but rather

    through legitimate means, he opened the door to questions to impeach the Defendant's testimony.

            The only remaining argument is that cOUIIBel was ineffective by asking those questions, and

    thereby opening the door to the subjeets on cross examination. The Court finds that Petitioner cannot

    meet its burden under either prong of Strickland. First, counsel's performance was not deficient

    under an objective standard ofreasonableness because it is a sound trial strategy to counter the

    Prosecution's assertion that the money in the Defendant' possession was earned through drug sales.

    Second, there is not a reasonable probability that the outcome ofthe trial would be different because

)   without the Petitioner's testimony, because there would be no Way to counter the Prosecution's

    assertion that money was actually the product of drug sales.

            The Court holds that allowing the Petitioner to testify as to the soume ofthe money seized

    was not an ineffective assistance ofcouosel, and counsel did not impeIlllissibly allow the Prosecution

    to shift the burden ofproofbecause the Petitioner's assertions about the PetitiOller's pay stubs and

    tax return.

                    5. 	 Counsel was not ineffective in explaining the effect of the state's promise not
                         to enhance the 2004 voluntary manslaughter cb.arge.

            In his Petition, the Petitioner argues that he was ineffectively represented by counsel, because

    the effect of the manslaughter plea was not properly explained to him. His argument appears to be

    twofuld: first, his counsel from the 2004 manslaughter conviction improperly explained the effect of

    his taking a plea; and second,:M:r. Gubb failed to properly explain the effect Dfhis manslaughter plea,

)   as the case was moving forward to trial.
                                                       11
    )
                 As to the Petitioner's fin,1 claim, the Court n:;iects his argument because his representation

         during his 2004 manslaughter conviction is not a subject ofthe present proceedings.

                 As to the Petitioner's second claim, the Court finds that counsel W3B not ineffective in

        explaining the effect of his previoUB 2004 manslaughter convietion. The recidivist enhancement is a

        result of the Petitioner's paBt crimes. Counsel had no control over the past convictiollS of the

        Petitioner, and cannot be held aecolUltable for them. The Petitioner's only argument appears to be

        that Mr. Grubb was confused about how the enhancement applied to the Petitioner's case, and

        perhaps that would have influenced the Petitioner's decision to take a plea. In support ofhis

        argument, the Petitioner points to the record where Mr. Grubb argued that the 2004 manslaughter

        convietion was inapplicable and he made multiple st5tements such as, "I'm a little mixed up this

        morning," and "discombobulated this morning," in support ofhis argument thst Mr. Grubb didn't

)       know what he was doing. Transcript Pretrial Hearing, February 23, 2010, page 7.

                Based upon the Court's review of the record, cOUDSel demonstrated an adequate

        understanding of the enhancement statute. At most, the record'demonstrates that Mr. Grubb was a bit

        mixed up, but in no way do his statements extend to a showing that Mr. Grubb was unclear on the

        statute. Ultimately, Mr. Grubb had no control over the Petitioner's prior convictions, and his attempt

        to defeat the recidivism charge argued on FebraaT)' 23,2010, was nothing more thanzea10usly

        advocating for his client. Because his argument did not carry the day does not create an inference that

        he misinformed his client, it is merely proofthat the law was not on his client's side.

            R The Petitioner's sentence does not constitute cruel and unusual punishment.

                'The Petitioner argues that hh sentence oflife imprisonment with the possibility ofparole

        after 15 years is disproportionate !1Uder both stages of the analysis set forth in Cooper. Simply put,

        the Petitioner argues that a li.re sentence for di5tributing Xanax shocks the conscience at the first
)
                                                            12 

    stage, and the non-violent nature ofthe offunse and ac,quittal of other charges militate in fuvor of not

    imposing the life sentence. In his argornem, the Petitioner places particnlar weight on Wcm.street and

    its proposition that the third felony is entitled to the most scrutiny because it provides the ultimate

    nexus fur the seIl!ence.

            The State comends that Petitioner is anideal candidate for the recidivist life seIl!ence. The

    State concedes that the ultimate nexus for the life seIl!ence was a distribution ofXanax conviction;

    however, that conviction was ouly the most reeeIl! in what has proven to be a sigoificant criminal

    history. Thc imposition of a recidivist life seoteoce does not shock the conscience, because of the

    repeated criminal conduct of the Petitioner.

            Although the Court notes that the third felony is entitled more scrutiny than the prior

    convictions under Wanstreet, the Court is inclined to agree with the State. Under the first stage of

)   Cooper, the Court finds that the Petitioner had a substantial criminal history prior to this conviction,

    that there were adequate grounds to impose a recidivist life senteoce, and the sentence is therefore

    subjectively reasonable. Although a life seIl!ence for a single'Xanax distribution would be clearly be

    disproportionate, this is not the case presently at bar.

            Under the second sta!,YC of Cooper, the Court finds that weighing the mctors set forth in

    Cooper gravitate to finding the life sentence proportional to the recidivist conduct ofthe Petitioner.

    Although the distribution conviction is in and of itself non-violent, the Petitioner has proven himself

    capable of great violence through his prior convictiolJS, and proven an inability to conform to the

    laws. As stated in Wanstreet, the emphasis is not solely on the final conviction.

        C. The Petitioner did not suffer from cumulative error.




)
                                                        13
•       <




)
                    Plainly stated, the Petitioner argues that, even though cOUilllel's conduct did not reach the

            level ofreversible error, it nonetheless constituted multiple acts ofharmless error. The cumulative

            effect of such harmless errors merits setting m.ide his conviction and granting him a new trial.

                    The Court is inclined tu agree with the Respondent that no error occurred, and any such

            perceived error would not have amounted tu cumulative error meriting setting the conviction aside,

            but rather, harmless error.

                D. The Petitioner's remaining Losh List claims are denied.

                    The Petitioner has raised a significant number of claims in his Lash checklist which were

            neither argued at the omnibus hearing, nor raised in the briefs. Those claims are; prejudicial pretrial

            publicity, mental competency at time of trial, incapacity to stand trial due to drug usage, suppression

            ofhelpful evidence by prosecutor, State's knowing use ofpetjured testimony, unfulfilled plea

)           bargains, irregularities in arrest, no preliminary hearing, refusai of continuance, constitutional errors

            in evidentiary rulings, claims ofprejudicial statements by prosecutor, severer sentence than expected,

            excessive sentence, and mistaken advice of counsel as tu parole or probation eligibility.

                    Upon its review of the PetitiOll, the omnibus hearing, and the case file of the criminal case,

            the Court cannot find any merit in the remaining Lash list claims asserted by the Defendant. In a

            habeas action, the Petitioner bears the burden ofproving he is being illegally held. Therefore, the

            Petitioners remaining claims raised on the Lash list are denied.

                                                       CONCLUSION

                    A Derendant is entitled to competent representation, not necessarily the best representation

            available. In the case presently at bar, the Petitioner received proressional and competent

            representation, and none of the five complained of errors alleging ineffective assistance ofcounsel

            mect the first prong ofllie Strickland test. The life sentence and recidi:viam charge based on a single
    )
                                                               14
     conviction ofXanax distnbution, if viewed ini~olation, may appear disproportionate, but when

     considered in connection with the Defendant's past criminal record, it paints the picture of a habitual

     offender and a clear candidate for the life sentence. Because the Court finds no error in trial counsel's

     representation, the Court holds that the Petitioner's case did not suffer from cumulative error. Finally,

     the Court holds that the Petitioner has not met his burden ofproving that he is being illegally held,

     and so denies the remainder ofthe Petitioner's claims raised in the Lash list.

             Accordingly, it is hereby ORDERED and ADJUDGED that:

             L       The Petition for Writ of Habeas Corpus is DENIED.

             2. 	    This is a final order and the Circuit Clerk is directed to remove this matter from the

                     a(:tive docloct ofthe Court.

            3. 	     The Circuit Clerk shall send a certified copy ofthis order to the Prosecuting Attorney

                     of Summers County; the Petitioner, Don G. Galloway, and counsel for the Petitioner,
)
                    Paul R Cassell, Esq. 


     Dated: August 28,2015. 



                                                                ROBERT A. IRONS, CIRCUIT JUDGE




                                                                                  A TRUE COpy.
                                                                                    •     ArreST'

                                                                                 LERK
                                                                                      vnk.,   0. ~"-:+
                                                                                Su..,,' CIRCUIT COu
                                                                                  ".VlERs co., Wy RT




)	
                                                       15 

