                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


Desmond Demetrius Clark,
Petitioner Below, Petitioner                                                     FILED
                                                                              April 15, 2019
vs) No. 18-0133 (Kanawha County 16-P-219)                                    EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mount Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
         Petitioner Desmond Demetrius Clark, by counsel Charles R. Hamilton, appeals the
Circuit Court of Kanawha County’s February 9, 2018, order denying his second petition for writ
of habeas corpus. Respondent Donnie Ames, Superintendent, Mount Olive Correctional
Complex,1 by counsel Elizabeth Davis Grant, submitted a response to which petitioner submitted
a reply.

       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 2008, petitioner was indicted by the Kanawha County Grand Jury and charged with
breaking and entering, kidnapping, and murder, stemming from the murder of Na’lisha Gravely
in a Taco Bell restaurant in Charleston, West Virginia. According to the circuit court’s order in
this habeas matter, the surveillance video from the restaurant positively identified petitioner as
the murderer. Petitioner was found hiding in a utility closet in a home in Kanawha County and
was arrested several hours after the killing. The State offered a plea agreement whereby
petitioner would plead guilty to first-degree murder, with the parties free to argue mercy at
sentencing, and the other charges would be dismissed. The plea agreement was placed on the
record on March 30, 2009. During that hearing, petitioner’s lead trial counsel, Theresa R.
Chisolm, requested an opportunity for both of petitioner’s trial attorneys and petitioner’s mother

       1
         Since the filing of the appeal in this case, the superintendent at Mount Olive
Correctional Complex has changed and the superintendent is now Donnie Ames. The Court has
made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of
Appellate Procedure. Additionally, effective July 1, 2018, the positions formerly designated as
“wardens” are now designated “superintendents.” See W. Va. Code § 15A-5-3.


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to meet with petitioner, and the judge indicated his willingness to take as much time as needed
for petitioner “and counsel to communicate and understand . . .” to ensure that petitioner
understood what he was doing and that his plea was done freely, voluntarily, and intelligently.
The hearing was continued and petitioner was afforded the opportunity to speak with his mother
and his attorneys. The hearing resumed approximately four hours later, at which time the circuit
court questioned petitioner, establishing that he was twenty-two years of age and had never been
diagnosed with a mental illness. When the court pointed out that counsel had indicated that
petitioner might have a mental defense to the crime, counsel clarified that petitioner had been
diagnosed with ADHD and a provisional diagnosis of intermittent explosive disorder. Counsel
stated that it was petitioner’s desire not to pursue a mental defense but to accept responsibility
for his crime. Petitioner also indicated that he understood the plea agreement and that no one
promised him anything or threatened him to induce his agreement to the plea. Further, he stated
that the medication provided to him by the jail did not affect his ability to think clearly. He
confirmed that he understood the charge to which he was pleading guilty, that he could spend the
rest of his life in prison, and that the State did not agree to any recommendation regarding
sentencing. The court accepted petitioner’s guilty plea, and a presentence investigation report
was completed.

        Dr. Bobby Miller evaluated petitioner to determine competency, criminal responsibility,
and any psychiatric diagnoses; he found petitioner to be competent. Dr. Miller believed that
petitioner had intermittent explosive disorder, but that at the time he killed Ms. Gravely
petitioner knew what he was doing. Dr. Miller found petitioner to be criminally responsible
because he appreciated the wrongfulness of his actions and was capable of conforming his
behavior to the requirements of the law but chose not to do so. On July 7, 2009, petitioner was
sentenced to life in prison without the possibility of parole. On November 2, 2009, he filed a
motion to reconsider his sentence, but that motion was denied by order entered November 10,
2009.

        Petitioner filed his first petition for writ of habeas corpus on October 11, 2011, and he
was afforded an omnibus hearing with the assistance of counsel. In that petition, petitioner
asserted ineffective assistance of counsel because counsel failed to investigate mental and
medical defenses known at the time of sentencing and ineffective assistance of counsel due to
mitigating evidence of Xanax and alcohol use at the time of the offense that was not offered at
sentencing. Petitioner and his mother testified at the evidentiary hearing, with petitioner
testifying that he had little recall as to what happened due to voluntary intoxication. He stated
that his lawyers never talked about a defense but suggested that he would receive mercy.
Petitioner acknowledged that he knew about his lack of memory when he entered his plea and
that he was truthful with his lawyers in all respects. He also acknowledged he thought that he had
a mental defense because of diminished capacity, shared all the information with counsel, and
knew that at the time he entered the plea. Petitioner’s mother testified that trial counsel did not
guarantee mercy but gave advice as to what they thought the outcome would be. She admitted
that her son made his own decision about entering the plea. The circuit court determined that
petitioner had failed to demonstrate that his counsel was ineffective and dismissed the petition by
order entered April 12, 2012. That decision was appealed to this Court and affirmed in a
memorandum decision. Clark v. Ballard, Case No. 12-0524, 2013 WL 2462188 (W. Va. June 7,
2013) (memorandum decision) (“Clark I”).

                                                2
        Petitioner filed a second petition for writ of habeas corpus in the circuit court in May of
2016. The second petition alleged the following: ineffective assistance of habeas counsel,
ineffective assistance of trial counsel, prejudicial pre-trial publicity, involuntary guilty plea,
petitioner’s competence and criminal responsibility or lack thereof, the failure of trial counsel to
appeal petitioner’s sentence, the State’s use of perjured testimony, the failure to grant a
continuance, the refusal to subpoena witnesses, question of actual guilt upon an acceptable guilty
plea, more severe sentence than expected, and mistaken advice as to eligibility for probation or
parole. Following the second omnibus evidentiary hearing, the circuit court entered its February
9, 2018, final order, finding that because this was a successive petition, the only available issues
to be raised are newly discovered evidence, change in the law that is favorable to petitioner and
may be retroactively applied, and ineffective assistance of the prior habeas counsel.

         Sherman Lambert, petitioner’s attorney during his first habeas proceeding, testified that
he discussed filing a request to file an appeal out of time for petitioner. He explained that in
preparation for filing a petition for writ of habeas corpus, he had numerous visits with petitioner,
obtained psychiatric records, and obtained petitioner’s file from trial counsel. Mr. Lambert also
consulted with a mental health expert witness. He testified that while he raised ineffective
assistance of trial counsel in not pursuing certain mental and medical defenses and in failing to
offer mitigating evidence of the use of drugs and alcohol at the time of the offense, he did not see
other viable issues. Mr. Lambert testified that he discussed every potential ground in the Losh list
with petitioner and informed him that anything he did not raise would be forever waived.2
According to Mr. Lambert, he chose not to raise the issue of involuntary plea because a review
of the plea colloquy regarding any question that petitioner believed he had been promised mercy
revealed that petitioner clearly acknowledged that the judge had the discretion to sentence him to
life in prison. He testified that, as a matter of strategy, he proffered the two issues in the petition
for writ of habeas corpus because all other plausible issues were waived by the entry of the guilty
plea. Mr. Lambert testified that he chose not to communicate with trial counsel because he
believed the documents he had were sufficient. He also testified he determined that petitioner
had reported things his previous lawyers had said and done that were inaccurate and untrue.

        After considering the second petition for writ of habeas corpus and the testimony of
petitioner’s first habeas counsel, the circuit court found that it was Mr. Lambert’s strategic
decision not to communicate with trial counsel or seek their testimony at the initial omnibus
hearing. Attorney Shawn Bayliss testified as an expert witness at the second omnibus hearing
and opined that he understood the strategy employed by Mr. Lambert but that he did not believe
that strategy was objectively reasonable. However, he noted that the plea colloquy makes the
plea appear freely and voluntarily given. While Mr. Bayliss acknowledged that often trial
counsel do not testify in habeas proceedings, he continued to be critical of Mr. Lambert’s lack of
investigation into the actions of trial counsel. In its final order, the circuit court found that
practitioners may make different choices in representing a habeas petitioner but that a
disagreement about those choices does not necessarily make the assistance ineffective. It
specifically noted that “strategic decisions rarely, if ever, form the basis for relief in habeas
corpus.”


       2
           Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).


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        In addressing applicable law, the circuit court concluded that the issues to be raised in
successive petitions for writs of habeas corpus are very limited, reiterating the three categories
set forth above. It, therefore, found that only ineffective assistance of prior habeas counsel was
properly before it. After a detailed examination of the various standards related to the ineffective
assistance of counsel, the circuit court concluded that previous habeas counsel was not
ineffective because petitioner failed to satisfy the standard set forth in Strickland/Miller.3 The
circuit court then found that petitioner’s other claims are barred by res judicata. Petitioner
appeals from that order.

       We review the circuit court’s denial of petitioner’s second habeas petition as follows:

               “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, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

        On appeal, petitioner asserts two assignments of error. First, he alleges that the circuit
court clearly erred by sustaining the State’s objection to the testimony of petitioner’s trial
counsel and witnesses at petitioner’s omnibus hearing. In support of his argument, petitioner
contends that when the circuit court sustained the State’s objection to testimony from trial
counsel Robert Catlett, petitioner was prevented from proving that trial counsel acted
incompetently, that the incompetency related to a matter that would have substantially affected
the fact-finding process if the case had proceeded to trial, and the guilty plea was motivated by
that error. He also asserts ineffective assistance of counsel based upon coercion to enter into the
plea agreement.

        “Our post-conviction habeas corpus statute . . . clearly contemplates that a person who
has been convicted of a crime is ordinarily entitled, as a matter of right, to only one post-
conviction habeas corpus proceeding[.]” Syl. Pt. 1, in part, Gibson v. Dale, 173 W. Va. 681, 319
S.E.2d 806 (1984). At subsequent habeas corpus proceedings, any ground raised at a prior habeas
corpus hearing is considered fully adjudicated and need not be addressed by the circuit court.
Petitioner’s argument ignores our earlier finding that

               [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;
       newly discovered evidence; or, a change in the law, favorable to the applicant,


       3
         Strickland v. Washington, 466 U.S. 668 (1984); State v. Miller, 194 W. Va. 3, 459
S.E.2d 114 (1995).


                                                 4
       which may be applied retroactively.

Syl. Pt. 4, Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).

        In petitioner’s first petition for habeas relief filed before the circuit court, he alleged that
he had received ineffective assistance from trial counsel. In the circuit court’s “Order Denying
Petition for Writ of Habeas Corpus” in that proceeding, the circuit court found that “[h]aving
considered the record and the evidence offered with respect to the [p]etition, the [c]ourt
concludes as a matter of law that trial counsel’s performance was not deficient under an
objective standard of reasonableness.” It went on to set forth ample support for that finding,
including the fact that trial counsel obtained mental health and medical records from various
entities; trial counsel’s request for a continuance to make additional efforts to obtain those
records; and lengthy conversations between trial counsel, counsel’s investigator, and petitioner to
discuss discovery matters. In his first habeas proceeding, the circuit court also addressed the
voluntariness of petitioner’s plea, concluding that “it is abundantly clear . . . that the guilty plea
was motivated by the overwhelming strength of the State’s evidence, the lack of
mental/diminished capacity defense, and matters of strategy, not by any error of defense
counsel.” In Clark I, this Court not only affirmed the circuit court’s order but adopted and
incorporated that well-reasoned order therein.

        In his first assignment of error, petitioner also points to the State’s objections to the
testimony of Mark Pearson. Petitioner does not articulate what involvement Mr. Pearson had to
the crime at issue. While he seems to imply that he spent time with Mr. Pearson shortly before
the crime, he fails to identify what testimony he sought to have Mr. Pearson provide or what that
testimony would prove. We have made clear that “[a] skeletal ‘argument,’ really nothing more
than an assertion, does not preserve a claim[.]” State, Dep’t of Health v. Robert Morris N., 195
W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (internal quotation marks and citations omitted).
We decline to address this inadequately briefed issue on the merits. For these reasons, we find no
merit in petitioner’s first assignment of error.

        Petitioner next argues that the circuit court abused its discretion by finding that Mr.
Lambert provided effective assistance. He asserts that Mr. Lambert admittedly did not contact
trial counsel at any point related to petitioner. Petitioner points to the testimony of his expert, Mr.
Bayliss, who testified that in his opinion petitioner’s habeas counsel was ineffective because he
failed to investigate the plea recommendation of trial counsel and the circumstances of
petitioner’s plea. Without citing to the record, petitioner asserts that his mother paid Mr. Lambert
$30,000 and a psychiatrist of Mr. Lambert’s choosing $1,500; however, the psychiatrist was not
subpoenaed to appear at the first omnibus hearing and did not provide a report to petitioner.
While petitioner argues that Mr. Lambert listed two errors on the Losh list and informed
petitioner “he would not need any other issues and he guaranteed him the case would be
remanded[,]” petitioner cites only his own testimony during the second omnibus hearing in
support of that contention. Petitioner further contends that Mr. Lambert’s assertion of only two
errors in his first habeas proceeding was “so obviously unreasonable that it was constitutionally
inadequate.”

       Pursuant to syllabus point 4 of Losh, ineffective assistance of habeas counsel constitutes

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an exception to the doctrine of res judicata. In addition,

               [i]n 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.

               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.

Syl. Pts. 5 and 6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

       As we further stated in Miller,

       [w]hen assessing whether counsel’s performance was deficient, we “must indulge
       a strong presumption that counsel’s conduct falls within the wide range of
       reasonable professional assistance[.]” 466 U.S. at 689, 104 S.Ct. at 2065, 80
       L.Ed.2d at 694. To demonstrate prejudice, a defendant must prove there is a
       “reasonable probability” that, absent the errors, the jury would have reached a
       different result. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Miller, 194 W. Va. at 15, 459 S.E.2d at 126.

        In the instant matter, Mr. Lambert testified that in preparation for the filing of petitioner’s
first petition for writ of habeas corpus, he had numerous visits with petitioner, obtained
psychiatric records, and obtained petitioner’s file from trial counsel. He also consulted with an
expert witness. Mr. Lambert further testified that he discussed every potential ground in the Losh
list with petitioner and informed petitioner that any issue not raised at that time would be forever
waived. According to Mr. Lambert’s testimony, he chose not to assert that petitioner entered his
plea involuntarily because his review of the plea colloquy revealed that petitioner clearly
acknowledged that the judge had the discretion to sentence him to life in prison, without mercy.
In addition, Mr. Lambert testified that as a matter of strategy, he proffered only two issues in the
petition for writ of habeas corpus because all other plausible issues were waived by the entry of
the guilty plea. Finally, because he had trial counsel’s documents, he did not believe that he
needed to consult with trial counsel, and he determined that petitioner reported things his trial
counsel had said and done that were inaccurate and untrue. Based on those findings and the
record before it, the circuit court concluded that petitioner was not entitled to habeas relief on
this ground. We agree.



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        Finally, petitioner has failed to show that he suffered prejudice due to Mr. Lambert’s
failure to call a psychiatrist to testify at the first omnibus hearing. He also fails to identify any
psychiatric finding that would have changed the outcome of the proceeding. In the circuit court’s
order, incorporated in Clark I, it found that petitioner’s decision to enter his plea was “knowing,
voluntary, [and] intelligent[,]” which supports Mr. Lambert’s decision not to assign error and
contest the voluntariness of petitioner’s plea. Therefore, we find no merit in petitioner’s second
assignment of error.


                                                                                          Affirmed.

ISSUED: April 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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