                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS 



Eric A. Foster,
                                                                                     FILED
Petitioner Below, Petitioner
                                                                                 March 23, 2018
vs) No. 17-0504 (Nicholas County 17-C-7)                                        EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
John T. Murphy, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Eric A. Foster, pro se, appeals the May 12, 2017, order of the Circuit Court of
Nicholas County denying his petition for writ of habeas corpus. Respondent John T. Murphy,
Warden, Huttonsville Correctional Center, by counsel Shannon Frederick Kiser, filed a response
in support of the circuit court’s order. Petitioner filed a reply.

        The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On December 30, 2003, petitioner engaged in a physical confrontation with Travis Painter
with whom he had prior animus. During this confrontation, Mr. Painter threatened petitioner with a
gun. Petitioner testified at his trial that, following their confrontation, Mr. Painter invited him to
the camper of his brother-in-law, Mike Murphy, to “talk things out.” The State argued that
petitioner and two accomplices formulated a plan to arm themselves with weapons and travel to
Mr. Murphy’s camper to exact revenge. The State presented evidence that petitioner’s girlfriend
was upset, tearfully begging petitioner not to go to Mr. Murphy’s camper. Notwithstanding his
girlfriend’s plea, petitioner drove to Mr. Murphy’s camper around midnight. An ensuring shootout
left both Mr. Painter and Mr. Murphy dead. Petitioner and an eyewitness testified that the first shot
was fired from inside petitioner’s truck. However, petitioner testified that he did not have a gun (as
opposed to his two accomplices) and that he did not shoot anyone.

       After a three-day trial in October of 2004, a jury found petitioner guilty of two counts of
second-degree murder, a lesser included offense of the counts charging first-degree murder. The
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circuit court sentenced petitioner to two consecutive forty-year terms of incarceration. In State v.
Foster, 221 W.Va. 629, 656 S.E.2d 74 (2007), this Court affirmed petitioner’s convictions and
sentences.

        On August 6, 2008, petitioner, pro se, filed a petition for writ of habeas corpus. Thereafter,
petitioner was appointed counsel who filed an amended petition on July 1, 2012. Various grounds
for habeas relief were advanced, including ineffective assistance of trial counsel. The circuit court
held an omnibus hearing on September 12, 2013, and continued on October 18, 2013. During that
hearing, petitioner’s habeas attorney presented seven witnesses, including petitioner, an expert on
criminal law, and petitioner’s trial attorney. Habeas counsel questioned petitioner’s trial attorney
regarding the extent that his alcoholism impacted his performance at petitioner’s trial.

        Following the omnibus hearing, the circuit court denied habeas relief by order entered
September 10, 2014. The circuit court found a single possible instance of ineffective assistance of
counsel—the possibility that petitioner’s trial attorney did not advise petitioner of the State’s
initial plea offer. The circuit court stated that, even if it assumed that trial counsel failed to
communicate this plea offer, it questioned the truthfulness of petitioner’s testimony that he would
have taken that initial plea offer had he been aware of it given his rejection of a subsequent and
unquestionably more advantageous plea offer on the first day of trial. Accordingly, the circuit
court ruled that petitioner failed to meet the second prong of the applicable standard for
establishing ineffective assistance of counsel, which required him to prove that a reasonable
probability existed that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different.1

         The circuit court further found that, though petitioner argued in his initial pro se petition
that trial counsel failed to object to “allegedly improper statements” made by the prosecuting
attorney, that issue did not need to be addressed as it had not been “supported by any argument or
evidence.” Petitioner appealed the circuit court’s September 10, 2014, order in Foster v. Ballard,
No. 14-1023, 2015 WL 6756866 (W.Va. November 4, 2015) (memorandum decision). This Court
affirmed the denial of habeas relief, finding that, based a review of the record, petitioner’s trial
attorney “performed reasonably.” Id. at *10 (footnote omitted).
         On January 26, 2017, petitioner, pro se, filed the instant habeas petition. As the sole ground
for relief, petitioner argued that his habeas attorney failed to raise trial counsel’s failure to object to

        1
         In syllabus point five of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court
held as follows:

                        In the West Virginia courts, claims of ineffective assistance
                of counsel are to be governed by the two-pronged test established in
                Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
                674 (1984): (1) Counsel’s performance was deficient under an
                objective standard of reasonableness; and (2) there is a reasonable
                probability that, but for counsel’s unprofessional errors, the result of
                the proceedings would have been different.

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numerous instances when the prosecutor allegedly misstated the evidence during the State’s
closing argument. By order entered May 12, 2017, the circuit court noted that petitioner was
“zealously represented” during the first habeas proceeding and found that the additional claim that
habeas counsel allegedly inadequately raised had been adjudicated and/or waived in that earlier
proceeding.

        Petitioner now appeals the circuit court’s May 12, 2017, order denying the instant habeas
petition. We apply the following standard of review in habeas appeals:

                “In reviewing challenges to the findings and conclusions of the circuit court
        in a habeas corpus action, we apply a three-prong standard of review. We review
        the final order and the ultimate disposition under an abuse of discretion standard;
        the underlying factual findings under a clearly erroneous standard; and questions of
        law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417,
        633 S.E.2d 771 (2006).

Syl. Pt. 1, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). In syllabus point 4 of Losh
v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held as follows:

                A prior omnibus habeas corpus hearing is res judicata as to all matters
        raised and as to all matters known or which with reasonable diligence could have
        been known; however, an applicant may still petition the court on the following
        grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing[.]

        On appeal, petitioner argues that the circuit court erred in finding that his claim that trial
counsel failed to object to misstatements by the prosecutor had been adjudicated and/or waived in
his first habeas proceeding because he now raises the claim within the context of alleging
ineffective assistance of habeas counsel. Respondent counters that the circuit court properly
denied the instant habeas petition. We agree with respondent.

        We have no way of evaluating whether the prosecutor misstated the evidence during the
State’s closing argument because petitioner failed to include the trial transcripts in his appendix.2
In syllabus point 12 of State v. Hargus, 232 W.Va. 735, 753 S.E.2d 893 (2013), we held as follows:

               “An appellant must carry the burden of showing error in the judgment of
        which he complains. This Court will not reverse the judgment of a trial court unless
        error affirmatively appears from the record. Error will not be presumed, all
        presumptions being in favor of the correctness of the judgment.” Syllabus Point 5,
        Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).



        2
          Petitioner likewise failed to attach the trial transcripts to his habeas petition when it was
filed in the circuit court.

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See also Rule 10(c)(7), W.V.R.A.P. (providing that we “may disregard errors that are not
adequately supported by specific references to the record on appeal”). In petitioner’s notice of
appeal, filed with this Court on June 6, 2017, he advised that transcripts were not necessary for
consideration of this appeal. Based upon our review of the record before us, we find that no error
affirmatively appears from the record and that petitioner has not shown that habeas counsel failed
to raise a meritorious claim. Therefore, we conclude that the circuit court did not abuse its
discretion in denying the instant habeas petition.

        For the foregoing reasons, we affirm the circuit court’s June 6, 2017, order denying
petitioner’s instant petition for writ of habeas corpus.

                                                                                       Affirmed.

ISSUED: March 23, 2018

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker


DISQUALIFIED:

Chief Justice Margaret L. Workman




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