          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                September 2013 Term                         FILED
                                 _______________                   November 21, 2013
                                                                       released at 3:00 p.m.
                                                                     RORY L. PERRY II, CLERK
                                    No. 11-1271                    SUPREME COURT OF APPEALS
                                  _______________                       OF WEST VIRGINIA



           STATE OF WEST VIRGINIA EX REL. WILLIAM R. ADKINS,

                        Petitioner Below, Petitioner


                                          v.

          DENNIS DINGUS, Warden, McDowell County Correctional Center,

                       Respondent Below, Respondent


       ____________________________________________________________

                    Appeal from the Circuit Court of Logan County

                       The Honorable Eric H. O’Briant, Judge

                             Civil Action No. 01-C-323-O


                                     AFFIRMED


       ____________________________________________________________

                             Submitted: October 16, 2013

                              Filed: November 21, 2013


Matthew Brummond, Esq.                         Patrick Morrisey, Esq.
Assistant Public Defender                      Attorney General
Charleston, West Virginia                      Christopher Dodrill, Esq.
Counsel for the Petitioner                     Assistant Attorney General
                                               Charleston, West Virginia
                                               Counsel for the Respondent


The Opinion of the Court was delivered PER CURIAM.

JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
                              SYLLABUS BY THE COURT



              1.     “‘An ineffective assistance of counsel claim presents a mixed

question of law and fact; we review the circuit court’s findings of historical fact for clear

error and its legal conclusions de novo. This means that we review the ultimate legal

claim of ineffective assistance of counsel de novo and the circuit court’s findings of

underlying predicate facts more deferentially.’ State ex rel. Daniel v. Legursky, 195

W.Va. 314, 320, 465 S.E.2d 416, 422 (1995).” Syl. pt. 1, State ex rel. Vernatter v.

Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999).



              2.     “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).



              3.     “In 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


                                              i
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.” Syl. pt. 6,

State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).



              4.     “‘A man attacked in his own home by an intruder may invoke the

law of self-defense without retreating.’ Syllabus point 4, State v. Preece, 166 W. Va. 176,

179 S.E. 524 (1935).” Syl. pt. 1, State v. W.J.B., 166 W. Va. 602, 276 S.E.2d 550 (1981).



              5.     “The occupant of a dwelling is not limited in using deadly force

against an unlawful intruder to the situation where the occupant is threatened with serious

bodily injury or death, but he may use deadly force if the unlawful intruder threatens

imminent physical violence or the commission of a felony and the occupant reasonably

believes deadly force is necessary.” Syl. pt. 2, State v. W.J.B., 166 W. Va. 602, 276

S.E.2d 550 (1981).



              6.     “The amount of force that can be used in self-defense is that

normally one can return deadly force only if he reasonably believes that the assailant is

about to inflict death or serious bodily harm; otherwise, where he is threatened only with

non-deadly force, he may use only non-deadly force in return.” Syl. pt. 1, State v. Baker,

177 W. Va. 769, 356 S.E.2d 862 (1987).




                                            ii
              7.      “The essential predicates of a plain view warrantless seizure are (1)

that the officer did not violate the Fourth Amendment in arriving at the place from which

the incriminating evidence could be viewed; (2) that the item was in plain view and its

incriminating character was also immediately apparent; and (3) that not only was the

officer lawfully located in a place from which the object could be plainly seen, but the

officer also had a lawful right of access to the object itself.” Syl. pt. 3, State v. Julius, 185

W. Va. 422, 408 S.E.2d 1 (1991).




                                               iii
Per Curiam:

              This case is before the Court on appeal by the petitioner, William Adkins,

of the Circuit Court of Logan County’s August 9, 2011, order denying the petitioner’s

request for habeas corpus relief. The petitioner is currently serving a sentence on a first

degree murder conviction at the McDowell County Correctional Center. In this appeal,

the petitioner alleges that both his trial counsel and his appellate counsel were ineffective

and that he is entitled to habeas corpus relief. He claims that the circuit court erred in

denying the requested relief. The respondent, Warden Dennis Dingus,1 asserts that no

error was committed below.



              After a thorough review of the record presented for consideration, the

briefs, the legal authorities cited, and the arguments of the petitioner and the respondent,

we find that the circuit court did not err in denying the petitioner’s requested habeas

corpus relief. Therefore, we affirm the circuit court’s order.



                                             I.


                 FACTUAL AND PROCEDURAL BACKGROUND


              The petitioner, William “Bill” Adkins, shot and killed his ex-girlfriend’s

adult son, 27-year-old Shawn Dingess (“the victim”), on September 3, 1999. The

       1
        While this case was pending before the Court, Dennis Dingus replaced Michael
Coleman as warden in this case. Pursuant to Rule 41(c) of the West Virginia Rules of
Appellate Procedure, the name of the current public officer has been substituted
accordingly in this action.

                                             1

shooting took place in the petitioner’s home. According to the petitioner, he had arrived

home to find the victim in the house, but he did not know how the victim got in.2 The

victim demanded money from the petitioner, claiming that he intended to use the money

to repay a debt owed by the petitioner to the victim’s mother. The petitioner refused to

pay, claiming that he did not owe his ex-girlfriend any money, and asked the victim to

leave. The victim did not leave. Instead, both men sat in the living room together for a

couple of hours drinking beer.



              Sometime while the men were in the living room together, the petitioner

noticed that the victim had a gun. When the victim left the room to obtain more beer, the

petitioner claims he retrieved his own gun and hid it under a cushion on the couch. The

petitioner asserted at trial that sometime after the victim returned to the living room, the

victim again requested money and became violent, threatening the petitioner with his

gun. In response, the petitioner used the gun he had hidden under the couch cushion,

shooting and killing the victim. After the shooting, the petitioner walked to his parents’

house nearby. The petitioner did not report the shooting to the police. The victim’s body

was discovered later that day by friends who had arrived at the house to pick up the

victim. The petitioner was arrested at his parents’ home shortly thereafter.




       2
       The petitioner testified at trial that he and the victim had previously lived in the
home together.


                                             2

              Medical and forensic evidence showed that the victim was shot five times.

Two of the three shots to the victim’s back were taken at close range, within six inches.

The victim also suffered injuries to his head, including sixteen abrasions and a fractured

skull. Blood was found on the petitioner’s clothes and inside the barrel of his gun. At

trial, the petitioner testified that all of his shots were taken from a distance no closer than

four feet. He claimed he did not beat the victim in the head at any point and could not

explain how the victim’s blood got on his pants or inside his gun.



              The petitioner’s three-day trial took place between March 20, 2000, and

March 22, 2000. At the conclusion of the trial, the jury found that the petitioner was

guilty of first degree murder, but it recommended mercy. Petitioner appealed his

conviction on November 27, 2000 to this Court. The Court entered an order on January

24, 2001, refusing the request to hear the appeal.



              The petitioner filed his petition for habeas corpus pro se on October 17,

2001. Thereafter counsel was appointed to him, and a number of amended habeas filings

were made over a span of years. After a series of status hearings, the circuit court held an

omnibus hearing to address the petitioner’s habeas corpus petition on December 3, 2010.

By order dated August 9, 2011, the circuit court denied the requested habeas relief. The

petitioner now appeals to this Court, raising only two of the twenty-eight errors he argued

before the circuit court.



                                              3

                                            II.


                              STANDARD OF REVIEW


              Both of the petitioner’s assignments of error involve claims of ineffective

assistance of counsel. This Court reviews claims of ineffective assistance of counsel

pursuant to syllabus point 1 of State ex rel. Vernatter v. Warden, 207 W. Va. 11, 528

S.E.2d 207 (1999):

                     “An ineffective assistance of counsel claim presents a
              mixed question of law and fact; we review the circuit court’s
              findings of historical fact for clear error and its legal
              conclusions de novo. This means that we review the ultimate
              legal claim of ineffective assistance of counsel de novo and
              the circuit court’s findings of underlying predicate facts more
              deferentially.” State ex rel. Daniel v. Legursky, 195 W.Va.
              314, 320, 465 S.E.2d 416, 422 (1995).



              Our de novo review of counsel’s performance involves application of a

two-pronged test established by the United States Supreme Court:

                     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). When applying the first

prong of the test,

              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

                                            4
              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.

Syl. pt. 6, Id. (in part). In weighing the reasonableness of counsel’s performance, the

Court’s review is highly deferential, and there is a presumption that counsel’s

performance was not deficient. Id. at 16, 459 S.E.2d 127 (“[J]udicial scrutiny of counsel’s

performance must be highly deferential . . . . [W]e always should presume strongly that

counsel’s performance was reasonable and adequate.” (internal quotations and citations

omitted)).



                                            III.


                                       ANALYSIS


              The petitioner alleges that he received ineffective assistance of counsel

from both his trial counsel and his appellate counsel. We proceed by addressing each

assignment of error separately.



                             A. Assistance of Trial Counsel

              At trial, the petitioner was represented by Glyn Dial Ellis.3 The petitioner’s

first assignment of error is that he received ineffective assistance of trial counsel because


       3
        During the pendency of the habeas proceedings, Mr. Ellis passed away prior to
providing any testimony concerning his representation of the petitioner.


                                             5

his counsel failed to request an instruction pursuant to syllabus points 1 and 2 of State v.

W.J.B., 166 W. Va. 602, 276 S.E.2d 550 (1981), in which we held:

                    1. “A man attacked in his own home by an intruder
              may invoke the law of self-defense without retreating.”
              Syllabus point 4, State v. Preece, 166 W. Va. 176, 179 S.E.
              524 (1935).

                     2. The occupant of a dwelling is not limited in using
              deadly force against an unlawful intruder to the situation
              where the occupant is threatened with serious bodily injury or
              death, but he may use deadly force if the unlawful intruder
              threatens imminent physical violence or the commission of a
              felony and the occupant reasonably believes deadly force is
              necessary.

These syllabus points enunciate the principle commonly known as the “castle doctrine”

as it exists in West Virginia.4 Under the castle doctrine, to justify deadly force resulting

in death, the occupant must show that the assailant was an intruder, that the intruder

threatened imminent physical violence or the commission of a felony, and that the

occupant reasonably believed deadly force was necessary.



              Although the jury was not instructed on the castle doctrine at trial, it did

receive a self-defense instruction. The Court stated the law on self-defense in syllabus

point 1 of State v. Baker, 177 W. Va. 769, 356 S.E.2d 862 (1987):

                    The amount of force that can be used in self-defense is
              that normally one can return deadly force only if he

       4
         See W.J.B., 166 W. Va. at 612, 276 S.E.2d at 556 (“[T]here is still basic vitality
to the ancient English rule that a man’s home is his castle, and he has the right to expect
some privacy and security within its confines.”).


                                             6

              reasonably believes that the assailant is about to inflict death
              or serious bodily harm; otherwise, where he is threatened
              only with non-deadly force, he may use only non-deadly
              force in return.

Pursuant to this syllabus point, one is only justified in using deadly force in self-defense

if he reasonably believes that the assailant will imminently inflict death or serious bodily

harm.



              The circumstances justifying homicide under the castle doctrine and self-

defense are different; while a person is limited to using deadly force in self-defense when

he fears death or serious bodily harm, a person may use deadly force in his home when he

believes the assailant is threatening physical violence or the commission of a felony.

Thus, the threshold for justifying homicide under the castle doctrine is lower than under a

traditional theory of self-defense.



              The petitioner posits that evidence was presented during his trial warranting

a jury instruction on the castle doctrine. Specifically, the petitioner testified that the

victim was not invited into the home and that he feared for his life when the victim

threatened him with a gun. Furthermore, during closing arguments, his trial counsel

appears to have relied on the castle doctrine, but only in part, in stating:

                     Now when I’m in my home, I don’t have to run from
              you. I can stand my ground, and I’ve been taught that ever
              since I was a boy, and I know a lot of men that have died
              under it. They mistakenly believed that they could go into
              people’s homes or go into their business. You can’t do it.
                     ....

                                               7

                     He said Bill didn’t leave when the guy kicked him,
              said Bill didn’t call the police when the guy kicked him.
              That’s true. He sure didn’t. But he didn’t leave either, did he?
              He stayed right there with his home, and when the guy fought
              him, then he shot him. It’s a very simple matter.

The petitioner argues that under the first prong of the test set forth in Miller, his trial

counsel was objectively unreasonable in failing to request a jury instruction on the castle

doctrine, particularly after developing facts that would support the same.



              Upon our de novo review, giving deference to trial counsel, we conclude

that the petitioner received effective assistance of counsel despite counsel’s choice not to

request a jury instruction on the castle doctrine. We do not believe that the petitioner has

overcome the presumption that counsel was ineffective. It is our belief that it was

counsel’s trial strategy to rely solely on self-defense, and under the facts of this case, the

strategy was objectively reasonable.



              Counsel could have reasonably concluded that he could not convince a jury

that the victim was an intruder within the meaning of syllabus point 2 of W.J.B. While the

Court has not defined “intruder” as it is used in the castle doctrine, Black’s Law

Dictionary 842 (8th ed. 2004) defines an intruder as “[a] person who enters, remains on,

uses, or touches land or chattels in another’s possession without the possessor’s consent.”

According to the petitioner’s own testimony, he drank beer with the victim for two hours

prior to the shooting. Although the victim may have entered the home without the

petitioner’s permission, the jury could have reasonably inferred from the facts of this

                                              8

particular case that the victim later received implicit permission to remain on the

property. Under these facts, it would be reasonable for trial counsel to believe that a jury

instruction on the castle doctrine would have confused the jury or generally weakened the

defense if given in addition to a self-defense instruction.



              Miller also dealt with the issue of whether counsel’s decision to not request

a particular jury instruction constituted ineffective assistance of counsel. In finding that

counsel’s performance was reasonable, the Court said:

                     Having presented substantial evidence, counsel was
              not required to develop every conceivable defense that was
              available. Nor was counsel required to offer a defense or
              instruction on every conceivable defense. What defense to
              carry to the jury, what witnesses to call, and what method of
              presentation to use is the epitome of a strategic decision, and
              it is one that we will seldom, if ever, second guess.
              Obviously, lawyers always can disagree as to what defense is
              worthy of pursuing “such is the stuff out of which trials are
              made.” Solomon v. Kemp, 735 F.2d 395, 404 (11th Cir.1984),
              cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 952
              (1985).
                     ....
              We hold that the mere fact that trial counsel failed to offer a
              viable defense instruction is not alone a sufficient ground to
              prove ineffectiveness of counsel.

Miller, 194 W. Va. 3, 16–17, 459 S.E.2d 114, 127–28. Following Miller, although the

facts of the instant case may have been sufficient to warrant a castle doctrine instruction,

trial counsel’s reliance on self-defense was not unreasonable, and the first prong of the

Miller test has not been met. Because both prongs of the test must be satisfied to establish

ineffective assistance of counsel, we need not proceed to evaluate the second prong with


                                              9

respect to this assignment of error. We conclude that the circuit court did not err in

finding that trial counsel effectively represented the petitioner.



                           B. Assistance of Appellate Counsel

              Appellate counsel, M. Timothy Koontz, was appointed to represent the

petitioner following the petitioner’s conviction. Thereafter, on June 24, 2001, this Court

denied hearing the petitioner’s direct appeal. The petitioner’s second assignment of error

is that appellate counsel was ineffective because he did not request a copy of the

transcript of a suppression hearing held on February 23, 2000, so that the transcript could

be presented to the Court along with the appellate brief and the rest of the appellate

record. The petitioner asserts that without that transcript, appellate counsel could not have

effectively argued to this Court that the circuit court had erred by failing to suppress

certain physical and testimonial evidence. Both the petitioner and the State acknowledge

that the full transcript of the suppression hearing is no longer available.



              Prior to the petitioner’s trial, trial counsel made a motion to suppress

certain evidence on multiple grounds, including the following: “There were no exigent

circumstances involved in this matter which allowed the State to either search or arrest

without a search warrant or arrest warrant. . . . No arrest warrant was ever received by

the State from any independent judiciary.” The trial court denied the motion to suppress

during the hearing. In a post-trial order denying the petitioner’s motion to set aside his

conviction, the trial court readdressed the issues raised in the suppression hearing, finding

                                              10

“that circumstances existed at the time officers arrived and further that the facts were

such as to permit officers to examine the scene of the crime without first obtaining a

search warrant.” This issue was mirrored in the petitioner’s appellate brief, which stated,

“The trial court erred in not granting defendant’s motion to suppress the fruits of the

search of his home, his person, or his parents’ home after the killing.” (Citation to the

appellate record omitted).



              We begin our analysis by noting that a trial transcript may not always be

necessary for an appeal. See Johnson v. McKenzie, 159 W. Va. 795, 799, 226 S.E.2d 721,

724 (1976) (“[T]his State does not require a transcript of trial proceedings as a condition

precedent to the right of appeal . . . .”). For instance, in appeals that only involve

questions of law, the facts as developed on the record are unnecessary for the disposition

of a case. However, where the facts themselves are in dispute or the application of law to

the facts is at issue, a transcript may be necessary. Whether counsel was ineffective for

failing to provide a transcript to this Court depends entirely on the details of the case.

Therefore, in determining whether appellate counsel was ineffective by failing to request

a transcript, the Court must evaluate whether the petitioner was actually prejudiced by not

having that transcript on appeal. See syl. pt. 8, State v. Graham, 208 W. Va. 463, 541

S.E.2d 341 (2000) (“Omissions from a trial transcript warrant a new trial only if the

missing portion of the transcript specifically prejudices a defendant’s appeal.”).




                                             11

              In the instant case, the petitioner contends that he “may very well have

prevailed on his claimed Fourth Amendment violation had the suppression hearing

transcript been available for appeal.” The petitioner bases this assertion on two aspects of

testimony given by a police officer, Trooper Doug Gunnoe, who investigated the

shooting. First, the petitioner argues that Trp. Gunnoe’s testimony before the grand jury

and before the trial court was inconsistent. Second, the petitioner argues that ammunition

seized in the petitioner’s home was seized in violation of the petitioner’s Fourth

Amendment rights.5



              Trp. Gunnoe testified as follows before the grand jury:

                     The day was Friday, September 3, 1999, and the
              approximate time that I received the call was about 1716
              hours. I received radio traffic from 911 communications
              reference [sic] a possible shooting . . . in Logan County.
                     Myself and Trooper Roger Johnson were responding to
              the call.
                     ....
              Not knowing whether the accused was still armed and on the
              scene or whether he was at his parents [sic], I decided to split
              with Trooper Johnson. I sent Trooper Johnson to the
              residence of the accused’s parents, and I proceeded to the
              location where the victim was reportedly at.

       5
          “The Fourth Amendment to the United States Constitution and Article III,
Section 6 of the Constitution of West Virginia protect the public from unreasonable
searches and seizures by governmental officials.” Ullom v. Miller, 227 W. Va. 1, 7, 705
S.E.2d 111, 117 (2010). “The Fourth Amendment applies to the states through
application of the Fourteenth Amendment of the United States Constitution. Article 3,
Section 6 of the West Virginia Constitution is generally construed in harmony with the
Fourth Amendment of the United States Constitution.” Id. at 7 n.4, 705 S.E.2d at 117 n.4
(citations omitted).


                                            12

                    At that point I proceeded on foot to the residence
             where the crime occurred and cleared the residence to make
             sure that the accused was not armed and running around
             outside the residence.
                    ....
                    So I went inside the house and did what we call a
             protective sweep for my own protection. Once I cleared the
             house and was satisfied that the accused wasn’t on the scene,
             I went back down to the victim’s location. I went back down
             to where the victim was, and I called his name once again
             with no response.
                    ....
             After obtaining their statements, I allowed both Gary Price
             and Violet Maynard to leave the scene.
                    At approximately 1910 hours that day, myself and
             Trooper Johnson returned to the house to complete our crime
             scene work. Trooper Johnson started a rough crime scene
             drawing, and I was assisting by taking various measurements.
                    ....
                    We entered the bedroom of the accused which is
             upstairs in the residence and observed a live round of
             ammunition on his nightstand. It was one single .357
             Magnum round. We also observed a night stand on the
             opposite side of the bed and observed that the top drawer of
             that night stand was open. On top of that drawer was a box of
             .357 Magnum ammunition.
                    Upon further inspection, we were able to determine
             that several rounds were missing out of that box of
             ammunition. We then number [sic] our evidence and took
             control of the crime scene photographs and did more on the
             scene work.

Trp. Gunnoe gave similar testimony at trial during direct examination:

                    Q.      Do you recall being informed . . . as to what had
             taken place?
                    A.      Yes, I do.
                    Q.      Based upon that, what were your actions?
                    A.      Based upon what was told to me at the scene, I
             sent Trooper Johnson to the residence where the accused’s
             parents live, and I went inside the crime scene residence.
                    Q.      What was your purpose for going in the home?


                                           13

                      A.       Because at that particular time we did not know
              for sure the exact location of the alleged shooter.
                      Q.       And you go into the home. What does that do,
              so you can make sure that they’re not still in the home?
                      A.       So I can protect myself and anybody else that
              may be on the scene. Just in the event that the shooter would
              have still been inside his residence.
                      Q.       Is that what is commonly referred to as like a
              protective sweep?
                      A.       Yes, it is.
                      Q.       What do you do for that then in a sweep? What
              are your actions at that time?
                      A.       I go to a particular scene, assess it for any
              danger for myself or medical personnel and physically
              examine the scene to try to insure that a potential perpetrator
              is no longer present.
                      Q.       By doing that, you walk around there or you
              draw your gun and go around the house and make sure
              nobody’s hiding in closets or rooms?
                      A.       If the case warrants it, yes.
                      Q.       Did you do that in this case?
                      A.       Yes, I did.
                      Q.       So you went upstairs and looked around?
                      A.       Yes, I did.

                      . . . .

                      Q.       While looking in one of the bedrooms, did you
              find any particular items that you might have considered
              evidence at that time?
                      A.       Yes. I observed what appeared to be
              ammunition on the nightstand there in the master bedroom or
              what I thought was the master bedroom of the residence of
              the accused.
                      Q.       Did you at some point come back and take that
              ammunition into custody as evidence?
                      A.       Yes, I did.



              The petitioner states that the testimony is inconsistent. Specifically, the

petitioner argues in his brief that



                                            14

                      the police officer who conducted the searches, Trooper
              Gunnoe, appears to have changed his testimony between the
              grand jury and trial, originally indicating that on a third
              search the ammunition was found inside an open drawer, but
              then later saying that this evidence was on top of the
              nightstand and plainly visible on the first search. From all of
              this, it is painfully obvious that appellate counsel failed to
              undertake even a nominal investigation. This falls short of an
              acceptable level of appellate performance, and so the habeas
              court abused its discretion in concluding that Mr. Adkins had
              not met the first prong of Strickland.



              First, we note that the petitioner did not raise as error in the instant appeal

his original appellate counsel’s failure to undertake an adequate investigation; he only

assigned as error appellate counsel’s failure to request the suppression hearing transcript.

Upon our inspection of appellate counsel’s brief, we find that nowhere did appellate

counsel argue that Trp. Gunnoe’s testimony was inconsistent. We fail to see how

including a transcript of the suppression hearing in the appellate record would have

permitted the Court to investigate inconsistencies—which, as the petitioner now argues,

would have resulted in reversal of the petitioner’s conviction—when the issue of

inconsistencies was never raised.



              Furthermore, we simply do not agree with the petitioner’s interpretation of

Trp. Gunnoe’s testimony; his statements were consistent. Trp. Gunnoe did not testify

during the grand jury proceeding that he only found ammunition in an open drawer; he

testified that he found ammunition on top of one nightstand, and within the open drawer

of the other nightstand. This is consistent with his less specific trial statement that he

                                             15

“observed what appeared to be ammunition on the nightstand.” Because we find no

inconsistencies in Trp. Gunnoe’s grand jury testimony and his trial testimony, the

suppression hearing transcript would likely have been cumulative of the evidence that

was provided to the Court. Any deviation from the testimony quoted herein and the

unknown testimony in the suppression hearing transcript is purely speculative, and there

are no indications in the appellate record that any deviation did in fact exist. Therefore,

with regard to the alleged inconsistencies we cannot find the petitioner has suffered any

specific prejudice.



              The petitioner argues also that the ammunition was seized in violation of

his Fourth Amendment rights. In his brief in the instant case, the petitioner claims that

“exigent circumstances did not apply” because “the police had secured the scene, left the

building but still guarded the premises, and then re-entered Mr. Adkins’ home to

collecting [sic] evidence. There were therefore no exigent circumstances justifying any

intrusion beyond the first.” The petitioner asserts that for the police to have lawfully

seized the ammunition, they must have first acquired a warrant.



              In West Virginia, the presence of exigent circumstances may justify a

search and seizure without a warrant.

              Exigent circumstances exist where there is a compelling need
              for the official action and there is insufficient time to secure a
              warrant, police may then enter and search private premises . .
              . without obtaining a warrant.
                     ....

                                             16

                     Exigent circumstances may exist in many situations:
              three well recognized situations are when police reasonably
              believe (1) their safety or the safety of others may be
              threatened, (2) quick action is necessary to prevent the
              destruction of potential evidence, or (3) immediate action is
              necessary to prevent the suspect from fleeing.

State v. Kendall, 219 W. Va. 686, 692, 639 S.E.2d 778, 784 (2006) (internal citations and

quotations omitted). In State v. Flippo, 212 W. Va. 560, 566, 575 S.E.2d 170, 176 (2002)

(quoting Flippo v. West Virginia, 528 U.S. 11 (1999)), the Court discussed the extent to

which such searches may be conducted, stating that “police may make warrantless entries

onto premises if they reasonably believe a person is in need of immediate aid and may

make prompt warrantless searches of a homicide scene for possible other victims or a

killer on the premises.” However, a “warrantless search [is] not constitutionally

permissible simply because a homicide ha[s] recently occurred.” Id. When the exigent

circumstances allowing police to search and seize a person’s property without a warrant

dissipate, so does the right of the police to continue its search and seizure. 6



              If evidence is seized while exigent circumstances are not present, the

evidence is generally inadmissible at trial as being seized in violation of the Fourth

Amendment. There is, however, an exception: seizure of evidence when exigent

       6
         Exigent circumstances are not necessary when police conduct a protective sweep
for weapons. Syllabus point 6 of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996)
(“Neither a showing of exigent circumstances nor probable cause is required to justify a
protective sweep for weapons as long as a two-part test is satisfied: An officer must show
there are specific articulable facts indicating danger and this suspicion of danger to the
officer or others must be reasonable. If these two elements are satisfied, an officer is
entitled to take protective precautions and search in a limited fashion for weapons.”)

                                              17

circumstances are not present is permissible when the evidence was located in plain view

when the exigent circumstances did exist.

                      The essential predicates of a plain view warrantless
              seizure are (1) that the officer did not violate the Fourth
              Amendment in arriving at the place from which the
              incriminating evidence could be viewed; (2) that the item was
              in plain view and its incriminating character was also
              immediately apparent; and (3) that not only was the officer
              lawfully located in a place from which the object could be
              plainly seen, but the officer also had a lawful right of access
              to the object itself.

Syl. pt. 3, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991).



              Pursuant to Kendall and Flippo, and based upon the testimony of Trp.

Gunnoe, we find that exigent circumstances were present at the time Trp. Gunnoe

conducted the protective sweep of the petitioner’s home. Trp. Gunnoe entered the home

to render aid to a shooting victim he could see lying in the house, and because he did not

know if the shooter was still present and dangerous, he conducted a protective sweep. It

was during the lawful protective sweep that Trp. Gunnoe first witnessed the ammunition

in the petitioner’s bedroom.



              However, we agree with the petitioner that exigent circumstances did not

exist at the time the ammunition was seized by the police. By that point, the petitioner

had been arrested, and there was no danger that the ammunition would be destroyed

before the police acquired a search warrant. Despite this, we conclude that the evidence

was not seized in violation of the petitioner’s Fourth Amendment rights because it was

                                            18

within plain view when Trp. Gunnoe conducted the protective sweep. Trp. Gunnoe was

legally present in the bedroom when he viewed the ammunition, the ammunition was in

plain view, its incriminating character was readily apparent—the police were

investigating a shooting—and Trp. Gunnoe could have lawfully seized the ammunition

during his protective sweep.



              Based on the foregoing, we do not believe that the trial court erred by

refusing to suppress the ammunition at the petitioner’s trial. Furthermore, the petitioner

has not alleged the necessity of the suppression hearing transcript in the absence of any

evidence that the trial court erred in refusing to suppress the ammunition. Because the

petitioner has not been prejudiced by his appellate counsel’s decision not to request a

transcript of the suppression hearing, we find that appellate counsel’s performance was

not deficient. Because we conclude that the first prong of the Miller test is not satisfied,

we need not proceed to evaluate the second prong. Accordingly, the circuit court did not

err in denying habeas corpus relief on the ground of ineffective assistance of appellate

counsel.

                                            IV.


                                     CONCLUSION


              For the reasons set forth above, this Court affirms the circuit court’s order

entered August 9, 2011, denying habeas corpus relief to the petitioner.



                                                                                 Affirmed.

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