                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                 FILED
                                                                              April 15, 2016
Ray Justis,                                                                    RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs) No. 15-0369 (Kanawha County 11-MISC-426)

Karen Pszczolkowski, Warden,
Northern Correctional Facility,
Respondent Below, Respondent



                                MEMORANDUM DECISION

        Petitioner Ray Justis, by counsel David R. Pence, appeals the March 24, 2015, order of the
Circuit Court of Kanawha County denying his petition for a writ of habeas corpus. Respondent
Karen Pszczolkowski, Warden, Northern Correctional Facility,1 by counsel Nic Dalton, filed a
response, and 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.

        The facts of petitioner’s underlying criminal case are these: Petitioner’s ex-wife, Wanda
Sue Crowder, had a key to the apartment rented by her brother, Steve Spencer, and his wife,
Allison Spencer. The Spencer’s told Ms. Crowder that she could come to the apartment anytime
she wanted. On December 23, 2006, while the Spencer’s were out of town, Ms. Crowder invited
petitioner to the apartment and drove him there.

        While at the apartment, during the early morning hours of December 24, 2006, petitioner
began questioning Ms. Crowder as to whether a sexual relationship existed between her and
petitioner’s brother. Ms. Crowder denied that such a relationship existed. Petitioner refused to
       1
         Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, the name of the
current public officer has been substituted as the respondent in this action.

                                                1

accept Ms. Crowder’s denial and continued to question her. Finally, Ms. Crowder responded,
“What if I did?” Petitioner began cursing, and slapped and kicked Ms. Crowder. Then, petitioner
demanded that Ms. Crowder take him home, and Ms. Crowder agreed to do so. However, as soon
as petitioner was outside the apartment, Ms. Crowder closed and locked the front door. Petitioner
started cursing and screaming, and demanded that Ms. Crowder let him back inside the apartment.
Ms. Crowder hid in a closet where she heard a window breaking. Once back inside the apartment,
petitioner searched for and found Ms. Crowder.

        Petitioner pulled Ms. Crowder from the closet, grabbing her by the hair, and threw her on a
bed. Petitioner covered Ms. Crowder’s mouth and ripped at her clothing, tearing her shirt. Ms.
Crowder bit petitioner, but was unable to free herself. Petitioner again grabbed Ms. Crowder by the
hair and pulled her to the apartment’s living room. Petitioner threw Ms. Crowder onto a couch and
beat her with her own belt. Eventually, the landlord of the apartment complex, Matthew Joseph
Taylor, intervened. Mr. Taylor observed that the window to the apartment was shattered and that
petitioner was bleeding. Mr. Taylor saw petitioner repeatedly punching Ms. Crowder. Petitioner
also attacked Mr. Taylor. It was necessary for Mr. Taylor to strike petitioner with a baseball bat to
end the incident.

        On February 20, 2008, a jury found petitioner guilty of misdemeanor battery (against Mr.
Taylor), misdemeanor domestic battery (against Ms. Crowder), and felony daytime burglary.
Following a recidivist trial on October 20, 2008, another jury found that petitioner was the same
person convicted of three prior felony offenses.2 Accordingly, pursuant to West Virginia Code §
61-11-18(c), the circuit court sentenced petitioner to life imprisonment with the possibility of
parole for his daytime burglary conviction. In his criminal appeal, petitioner challenged his
recidivist conviction. This Court affirmed that conviction in State v. Justis, No. 101539 (West
Virginia Supreme Court, June 15, 2011), at p. 2 (memorandum decision).

        Petitioner subsequently filed a petition for a writ of habeas corpus challenging his
conviction for daytime burglary.3 Habeas counsel was appointed, who filed an amended petition
on September 5, 2012, and a supplemental petition on November 30, 2012. Petitioner raised the
following grounds for relief: (1) the circuit court erred in allowing the State to amend the
indictment to reflect that the tenants of the apartment, the Spencer’s—rather than the landlord, Mr.
Taylor—were the residents of the same; (2) following the indictment’s amendment, the circuit
court erred in denying petitioner’s motion for a continuance to allow the Spencer’s to be
interviewed and called as witnesses; (3) the circuit court erred in not striking a juror whose wife
was in the courtroom during proceedings from which the jury was excluded; and (4) trial counsel
       2
         Petitioner’s prior felony convictions were for breaking and entering in 1984,
non-aggravated robbery in 1991, and Conspiracy to Distribute and Possession With Intent to
Distribute (Marijuana) in 1997.
       3
        Petitioner contends that, because his daytime burglary conviction triggered the application
of West Virginia Code § 61-11-18(c) in this case, if that conviction is vacated, his recidivist
conviction also must be vacated.

                                                 2

did not provide petitioner with effective assistance. Following a response filed by respondent, the
circuit court determined that it could rule on petitioner’s claims based on “a thorough review of the
petition, [respondent’s response], exhibits, underlying records including but not limited to the
transcript of the trial, [and] other documentary evidence.” The circuit court found the claims to be
without merit and denied petitioner’s habeas petition.4

      Petitioner now appeals the circuit court’s April 6, 2015, order denying his 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, 418, 633 S.E.2d 771, 772 (2006). A circuit court
may deny a habeas petition without holding an evidentiary hearing “if the petition, exhibits,
affidavits or other documentary evidence filed therewith show to such court’s satisfaction that the
petitioner is entitled to no relief.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657, 658
(1973).

        First, petitioner asserts that he had to be re-indicted if the State desired to amend the
indictment to reflect that the tenants of the apartment, the Spencer’s—rather than the landlord, Mr.
Taylor—were the residents of the same. Petitioner contends that the amendment was “substantial”
within the meaning of Syllabus Point 3 of State v. Adams, 193 W.Va. 277, 279, 456 S.E.2d 4, 6
(1995),5 because, under the amendment, he had an argument that the residents of the apartment
authorized him to reenter the premises after Ms. Crowder locked him outside. In finding that this
claim had no merit, the circuit court determined that the amendment was not substantial because
unauthorized entry is not an element of daytime burglary pursuant to Syllabus Point 4 of State v.
Slater, 222 W.Va. 499, 501, 665 S.E.2d 674, 676 (2008). In Slater, we held that “[u]nauthorized
entry is not a required element of the crime of daytime burglary by breaking and entering as

       4
           The circuit court’s rulings regarding each claim will be discussed infra.
       5
           In Syllabus Point 3, we held, as follows:

                 Any substantial amendment, direct or indirect, of an indictment
                 must be resubmitted to the grand jury. An “amendment of form”
                 which does not require resubmission of an indictment to the grand
                 jury occurs when the defendant is not misled in any sense, is not
                 subjected to any added burden of proof, and is not otherwise
                 prejudiced.

Id. at 279, 456 S.E.2d at 6.

                                                   3

defined in [West Virginia] Code § 61–3–11(a)[.]” We specifically noted that, in light of our
holding, evidence that the defendant’s entry into a residence was authorized “is not relevant.” Id. at
505, 456 S.E.2d at 680. Therefore, we agree with the circuit court’s analysis that the amendment to
the indictment was not substantial and conclude that the circuit court did not err in determining that
this claim had no merit.6

        Second, petitioner asserts that, because the indictment was amended the morning of the
first day of trial, the circuit court should have granted his motion for a continuance so that the
Spencer’s could be interviewed and called as witnesses. “A motion for continuance is addressed to
the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is
a showing that there has been an abuse of discretion.” Syl. Pt. 2, State v. Bush, 163 W.Va. 168,
169, 255 S.E.2d 539, 540 (1979). For the reasons explained above, the circuit court found that any
testimony that the Spencer’s authorized both Ms. Crowder and petitioner to be at their
apartment—or that the Spencer’s authorized Ms. Crowder to be at the apartment, who then invited
petitioner there—would not be relevant evidence pursuant to Slater. Thus, the circuit court
concluded that the denial of a continuance did not prejudice petitioner’s defense. We agree with
that conclusion and further note that petitioner’s factual premise, that the Spencer’s authorized him
to reenter the apartment by breaking a window to continue his assault on their close relative, is
highly suspect. Because the denial of a continuance did not prejudice the defense, we conclude that
the circuit court did not err in determining that the denial of petitioner’s motion was not an abuse of
discretion.

         Third, petitioner argues that a juror should have been stricken during the course of the trial
because his wife was in the courtroom during proceedings from which the jury was excluded. “The
true test to be applied with regard to the qualifications of a juror is whether a juror can, without bias
or prejudice, return a verdict based on the evidence and the court’s instructions and disregard any
prior opinions he may have had.” Syl. Pt. 1, State v. Harshbarger, 170 W.Va. 401, 402-3, 294
S.E.2d 254, 255-6 (1982) (internal quotations and citations omitted). Near the end of the first day
of trial, the circuit court became aware that a juror’s wife was present in the courtroom during
proceedings not disclosed to the jury. Upon questioning of the juror’s wife outside the presence of
the jury, the circuit court learned that the woman’s poor health caused her to be wherever her
husband was. The juror’s wife, who was scheduled for surgery on Thursday or Friday of that week,
inquired of the circuit court whether her husband could be excused from further jury service.
        6
         Petitioner also argues that the amendment to the indictment was substantial because an
indictment must correctly reflect who owns the dwelling house which a defendant is accused of
burglarizing. Petitioner relies on State v. Scarberry, 187 W.Va. 251, 418 S.E.2d 361 (1992), for
this proposition. We find such reliance misplaced. In Scarberry, we reversed a conviction for petit
larceny because the indictment did not correctly reflect who owned a power box that been stolen
from an abandoned mobile home. Id. at 255-6, 418 S.E.2d at 365-6. While we also reversed the
defendant’s conviction for daytime burglary, the basis for that reversal was that the mobile home
no longer constituted a dwelling house. Id. at 254, 418 S.E.2d at 364. Therefore, contrary to
petitioner’s contention, in Scarberry, we did not determine that an indictment must reflect who
owns the dwelling house which a defendant is accused of burglarizing.

                                                   4

However, when the circuit court subsequently questioned the juror outside the presence of the
other jurors, he indicated that it would create no hardship on him and his wife for him to finish
serving on the jury for petitioner’s trial if some accommodation could be made for later in the
week. The circuit court agreed stating that, after the juror finished petitioner’s trial, the court
would excuse him from serving on future juries because of his wife’s ill health. The circuit court
also instructed the juror and his wife not to discuss any matter during which she was in the
courtroom that the jury was not. Both the juror and his wife indicated that, because of the juror’s
service on a prior trial, they were well aware what the juror could and could not do.
Notwithstanding the circuit court’s instructions to the juror and his wife—and their assurances that
they understood those instructions—petitioner contends that the juror was under an undue
influence to reach a speedy verdict. Based on our review of relevant portions of the trial transcript,
we conclude that the circuit court did not clearly err in finding that “the questioning of the juror did
not reveal that he was under duress as a result of his wife’s impending surgery” and that the circuit
court did not err in determining that this claim had no merit.

        Fourth, petitioner asserts that trial counsel failed to provide effective assistance (1) by not
conducting an adequate investigation into the Spencer’s potential testimony; (2) by not employing
an independent investigator to locate the Spencer’s and interview them; (3) by not preserving as an
error alleged irregularities in the presentation of the State’s case to the grand jury; and (4) by not
advising petitioner to testify in his own defense. In West Virginia, claims of ineffective assistance
of counsel are governed by the two-pronged test established in Strickland v. Washington, 466 U.S.
668 (1984): (a) counsel’s performance was deficient under an objective standard of
reasonableness; and (b) 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, 6, 459 S.E.2d 114, 117 (1995). Respondent counters that the first three of these
ineffective assistance claims are precluded under the first prong of the Strickland test because of
the circuit court’s rulings that any evidence that petitioner might have initially had authorization to
be in the Spencer’s apartment was not relevant pursuant to Slater. We agree with respondent that
petitioner cannot prove that trial counsel’s performance was deficient by showing that counsel
failed to pursue courses of action that would have led to irrelevant evidence. With regard to alleged
irregularities in grand jury proceedings, we note that petitioner avers that the State’s presentation
of the case was irregular because the investigating officer did not inform the grand jury that
petitioner initially had authorization to be at the apartment. We further note that, during the
officer’s cross examination at trial, counsel elicited from the officer testimony that he failed to
inform the grand jury that petitioner had such authorization. Thus, counsel pursued the matter.
However, the fact that petitioner may have had authorization to be at the apartment was not
relevant to the determination of his guilt for the offense of daytime burglary. Therefore, we
conclude that the circuit court did not err in rejecting the first three of petitioner’s ineffective
assistance claims.

        Finally, petitioner asserts that counsel’s performance was deficient because counsel
advised him not to testify in his own defense. Respondent counters that the circuit court discussed
with petitioner whether he wanted to exercise his right to testify. The circuit court informed
petitioner that, while counsel could advise him as to that right, it was “your decision and your
decision alone[.]” Petitioner responded, “yes, ma’am.” Based on our review of relevant portions of
                                                 5

the trial transcript, we find that, while petitioner alleges that he is a man of limited education, he
did not blindly follow counsel’s advice and, instead, made his own decision not to testify. Thus, we
conclude that this claim also lacks merit. 7 We further determine that, even if counsel’s
performance was deficient in one or more ways, petitioner cannot meet the prejudice prong of the
Strickland test because the circuit court correctly found that petitioner did not show that any
deficient performance on the part of counsel “actually prejudiced him or had any substantial effect
on the outcome of the trial.” Therefore, we conclude that the circuit court did not abuse its
discretion in denying petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s April 6, 2015, order denying
petitioner’s petition for a writ of habeas corpus.
                                                                                    Affirmed.

ISSUED: April 15, 2016

CONCURRED IN BY:

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




       7
         While petitioner alleged that counsel was ineffective by not advising him to testify in his
supplemental habeas petition, the circuit court did not refer to the claim in its order. On appeal,
petitioner does not assign error to this omission in the circuit court’s order. Therefore, we find that
any such error is waived.

                                                  6

