                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Dennis Gale Hubbard,                                                               FILED
Petitioner Below, Petitioner                                                    April 10, 2017
                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0148 (Mercer County 12-C-320)                                      SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Ralph Terry, Warden,
Stevens Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Dennis Gale Hubbard, by counsel Paul R. Cassell, appeals the Circuit Court of
Mercer County’s January 20, 2016, order denying his amended petition for writ of habeas
corpus. Respondent Ralph Terry,1 Warden, by counsel Nic Dalton, filed a response. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred in denying his amended
habeas petition on the grounds of ineffective assistance of counsel, a change in the law since the
time of his conviction, the failure to preserve certain evidence, and 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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In July of 2005, petitioner shot and killed Ricardo Edward Lee after Mr. Lee entered
petitioner’s residence. By his own admission, petitioner fired ten shots at Mr. Lee, emptying his
firearm. During the February of 2006 term of court, petitioner was indicted on one count of first-
degree murder. Petitioner’s trial commenced in August of 2006. At trial, petitioner argued that he
acted in self-defense and claimed that Mr. Lee was holding a knife at the time of the shooting.
However, several witnesses testified that they did not see Mr. Lee holding a knife at the time of
the shooting or see him move toward petitioner in a threatening manner. Ultimately, the jury
convicted petitioner of one count of second-degree murder. Thereafter, petitioner filed a motion
for a new trial, which the circuit court denied. By order entered in October of 2006, the circuit
court sentenced petitioner to a term of incarceration of forty years. Petitioner thereafter appealed

       1
         Petitioner originally listed Marvin C. Plumley, Warden of Huttonsville Correctional
Complex, as respondent in this matter. However, petitioner is no longer housed at Huttonsville
Correctional Complex and is, instead, housed at Stevens Correctional Center. Pursuant to Rule
41(c) of the West Virginia Revised Rules of Appellate Procedure, the name of the correct public
officer has been substituted as respondent in this action.
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his conviction to this Court, and we refused the same by order entered in September of 2008.

        Petitioner filed a petition for writ of habeas corpus in May of 2010. The circuit court
appointed an attorney to represent petitioner and he later filed an amended petition. Ultimately,
the circuit court denied that petition in May of 2010. Thereafter, petitioner filed a second petition
that the circuit court denied in October of 2010.

        In June of 2012, petitioner filed a third petition for writ of habeas corpus in the circuit
court. After the circuit court appointed counsel in February of 2013, the State conceded that
petitioner received ineffective assistance of counsel in his prior habeas proceeding. As such, the
circuit court permitted petitioner to file an amended petition. In November of 2014, the circuit
court held an omnibus evidentiary hearing. The circuit court then permitted evidentiary
depositions of fact and expert witnesses. In June of 2015, the parties presented their final
arguments to the circuit court. By order entered on January 20, 2016, the circuit court denied
petitioner’s amended petition. It is from that order that petitioner appeals.

       This Court reviews appeals of circuit court orders 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 to this Court, petitioner argues that he was entitled to habeas relief due to trial
counsel’s ineffective representation, a favorable change in the law with retroactive effect, a
violation of his state and federal due process rights by the State’s failure to preserve certain
evidence, and cumulative error. The Court, however, does not agree. First, the record is clear that
petitioner’s due process rights were not violated by the State’s failure to preserve evidence.
According to petitioner, a radio interview that he gave shortly after the crime was played for the
jury during trial. According to petitioner, the individual who interviewed him indicated he
worked for a radio station but may have actually been a police officer. Accordingly, petitioner
argues that his due process rights and right to effective assistance of counsel were violated by
trial counsel’s failure to transcribe the entirety of the interview, especially in light of the fact that
the State can no longer produce the recording. This Court, however, finds no error.

        Importantly, petitioner provides no evidence in support of his allegation that his
interviewer may have been a police officer. He further provides no argument as to how the
recording in question would support this bald assertion. Instead, petitioner simply argues that
there is a “presumption of prejudice” when “substantial and significant” portions of the record
are omitted in situations where a defendant is no longer represented by trial counsel. U.S. v.
Preciado-Corbodas, 981 F.2d 1206, 1212 (11th Cir. 1993). He also argues that this Court has

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held that failure to ensure that crucial parts of the trial are on the record can constitute ineffective
assistance of counsel. Myers v. Painter, 213 W.Va. 32, 37-38, 576 S.E.2d 277, 282-83 (2002).
Simply put, the cases upon which petitioner relies are not persuasive, as they deal with situations
unlike the one on appeal. Specifically, petitioner relies on cases that require a record be made for
purposes of meaningful appeal and that govern instances of missing evidence that the State
intends to use at trial or that was subject to discovery prior to trial. Petitioner has already had the
opportunity to appeal his conviction, and this Court refused the same. Moreover, petitioner does
not allege that the State improperly withheld the recording in question during discovery. In fact,
the record is clear that petitioner received a transcribed version from his trial attorney. As such,
we find no error in the circuit court denying petitioner habeas relief in this regard.

        As to petitioner’s remaining assignments of error, upon our review and consideration of
the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no
error or abuse of discretion by the circuit court. Our review of the record supports the circuit
court’s decision to deny petitioner post-conviction habeas corpus relief based on these alleged
errors, which were also argued below. Indeed, the circuit court’s order includes well-reasoned
findings and conclusions as to the assignments of error raised on appeal. 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 assignments of error raised herein and direct the Clerk to attach a copy of the circuit
court’s January 20, 2016, “Order” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: April 10, 2017

CONCURRED IN BY:

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




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