                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



James T. Samples,
                                                                                  FILED
                                                                                  April 12, 2013
Petitioner Below, Petitioner                                                 RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 11-1656 (Kanawha County 99-MISC-370)

David Ballard, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner James T. Samples, by counsel Gregory F. Ayers, appeals the Circuit Court of
Kanawha County’s order entered on October 31, 2011, denying his petition for writ of habeas
corpus. Respondent Warden Ballard, by counsel Benjamin F. Yancey, filed a response in support
of the circuit court’s decision.

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

        Petitioner was convicted of first degree murder during the commission of an aggravated
robbery and burglary. He was sentenced to life in prison without a recommendation of mercy on
February 6, 1998. Petitioner filed a direct appeal which was refused by this Court on November
10, 1998. Petitioner filed a petition for writ of habeas corpus. His petition was denied and
dismissed by the Circuit Court of Kanawha County. Petitioner appealed, and this Court
remanded the matter to the circuit court for appointment of counsel. Petitioner’s counsel filed an
amended petition for writ of habeas corpus challenging jury selection, effective assistance of
counsel, and the sufficiency of the indictment which led to his trial and conviction. Following a
May 12, 2011, omnibus hearing, the circuit court entered its order denying the petition for writ of
habeas corpus and affirming the petitioner’s convictions. Petitioner now appeals the circuit
court’s order.

       We review an appeal of 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


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       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).

        Petitioner first argues that the circuit court erred in concluding that he received a fair and
impartial jury and a fair sentencing process. During voir dire, counsel for petitioner did not
question whether each juror could follow the law and consider a recommendation of mercy.
Subsequent to the trial, two of the jurors who convicted petitioner completed a questionnaire
indicating they would not be willing to consider mercy where the defendant is found guilty of
first degree murder. He asserts that this failure to voir dire on the issue of mercy resulted in an
unfair sentencing process. This Court has previously held:

       A prospective juror’s eligibility to serve is not ordinarily to be determined by an
       isolated remark or answer to a single question. Rather, when confronted with a
       challenge for cause, the trial court should base its decision on the entire voir dire
       examination and the totality of the circumstances. The trial court is in the best
       position to evaluate a prospective juror’s qualifications, and the trial court’s
       decision on this issue will be affirmed absent an abuse of discretion.

Syl. Pt. 8, Messer v. Hampden Coal Co., LLC, 229 W.Va. 97, 727 S.E.2d 443 (2012).

        In regard to sentencing, “‘[t]he Supreme Court of Appeals reviews sentencing orders . . .
under a deferential abuse of discretion standard, unless the order violates statutory or
constitutional commands.’ Syllabus point 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d
221 (1997).” Syl. Pt. 1, State v. Sulick, No. 11-0043, 2012 WL 602889 (W.Va. Feb. 23, 2012).
Under these standards, it is clear the circuit court did not abuse its discretion in its findings
regarding jury selection and the sentencing process.

        Petitioner asserts that he did not receive effective assistance of trial counsel in regard to
voir dire. He also argues that he was denied his constitutional right to the effective assistance of
counsel because counsel told the jury that petitioner was a convicted felon but did not request a
limiting instruction. Respondent argues that the actions of counsel complained of by petitioner
were intentional, strategic decisions. In addition, petitioner was specifically questioned by the
trial court regarding the introduction of this evidence, and petitioner informed the court that he
was in agreement with the introduction of such evidence.

       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).




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       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 strategic decisions. Thus, a reviewing court asks whether a
       reasonable lawyer would have acted, under the circumstances, as defense counsel
       acted in the case at issue.

Id. at Syl. Pt. 6; see also State ex rel. Daniel v. Legursky, 195 W.Va. 314, 320, 465 S.E.2d 416,
422 (1995). In this case, it cannot be said that counsel’s performance was deficient under an
objective standard or reasonableness or that there is a reasonable probability that the result of
proceedings would have been different but for counsel’s alleged unprofessional errors. Further,
in reviewing counsel’s performance under an objective standard in light of the circumstances,
this Court finds that a reasonable lawyer would have acted as defense counsel acted. Under these
standards and the facts of this case, petitioner was not denied his right to the effective assistance
of counsel.

        Finally, petitioner asserts that the indictment was fatally flawed. Respondent cites to
West Virginia Code § 61-2-1 in support of the trial court’s finding that petitioner could be
convicted of felony murder under the indictment. As set forth by this Court previously, “An
indictment need only meet minimal constitutional standards, and the sufficiency of an indictment
is determined by practical rather than technical considerations.” State v. Hughes, 225 W.Va. 218,
224, 691 S.E.2d 813, 819 (2010), quoting Syl. Pt. 2, in part, State v. Miller, 197 W.Va. 588, 476
S.E.2d 535. Reviewing the sufficiency of the indictment de novo, we find that the indictment
was sufficient to sustain petitioner’s conviction for felony murder.

       For the foregoing reasons, we affirm the circuit court’s order.


                                                                                          Affirmed.


ISSUED: April 12, 2013

CONCURRED IN BY:

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




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