                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Miguel Delgado,                                                                     FILED
Petitioner Below, Petitioner                                                     May 18, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-0503 (Berkeley County 07-C-94)                                        OF WEST VIRGINIA


David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
         Petitioner Miguel Delgado, by counsel Matthew D. Brummond, appeals the Circuit Court
of Berkeley County’s May 1, 2014, order denying his petition for writ of habeas corpus.
Respondent warden, by counsel Christopher C. Quasebarth, filed a response in support of the
circuit court’s order. Petitioner filed a reply. On appeal, petitioner alleges the circuit court erred
in (1) finding that his trial counsel was not constitutionally ineffective; (2) failing to permit
petitioner to proceed both pro se and by counsel on separate amended habeas petitions and
failing to consider those grounds raised in petitioner’s pro se amended habeas petition; and (3)
failing to grant habeas relief or, in the alternative, hold an omnibus evidentiary hearing.

        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 2001, neighbors discovered the nude, deceased body of Robyn Richardson (“the
victim”) on the yard of her apartment complex in Berkeley County, West Virginia. She had been
stabbed twenty-three times with a steak knife. Police found blood in her apartment, which was
later described as “in disarray.” At petitioner’s 2004 murder trial, the State presented evidence
that petitioner confessed to the murder the morning after it occurred and that the victim’s DNA
was found in his vehicle. The State also presented the testimony of Lesa Hearn, who identified
petitioner in a photographic array as the man she saw running from the apartment complex on the
night in question. Petitioner’s counsel1 did not object to the testimony of Lisa Hearn or move to

       1
        Between his arrest and trial, petitioner had nine court-appointed attorneys, seven of
whom the circuit court permitted to withdraw. The circuit court appointed petitioner two
attorneys for trial—which, ultimately, were Michael Santa Barbara and Robert Barrat. Following
his conviction and sentencing, at petitioner’s request, the circuit court relieved Messrs. Santa
Barbara and Barrat. Thereafter, between his sentencing and the filing of the underlying habeas
                                                  1

exclude that testimony due to the photographic array used by Ms. Hearn to identify him. To the
contrary, petitioner agreed not to challenge Ms. Hearn’s testimony or photographic array in
exchange for the State agreeing not to seek an in-court identification by Ms. Hearn. In his case­
in-chief, petitioner called a DNA expert, who testified that the only DNA found under the
victim’s fingernails was her own.

        At the close of evidence, in its charge to the jury, the circuit court instructed the jury on
the charges of first-degree murder, second-degree murder, and voluntary manslaughter, including
specific instructions on the elements of first-degree murder. During deliberations, the jury
requested “instructions again on first and second degree[.]” The circuit court provided the jury
with a written copy of the instructions previously given. The jury returned its verdict finding
petitioner guilty of first-degree murder, without a recommendation of mercy.

        Relevant to the instant appeal,2 petitioner filed a pro se petition for writ of habeas corpus
in the Circuit Court of Berkeley County in January of 2007.3 Petitioner’s pro se habeas petition
asserted thirty-four grounds for relief, but the majority of the petition focused on claims of
ineffective assistance of counsel and prosecutorial misconduct. On or about April 9, 2012,
petitioner filed a “First Pro Se Amended Petition,” in which he asserted “prosecutorial
misconduct, deliberate misrepresentation to the court, Brady violation, police misconduct,
ineffective assistance of counsel, and abuse of discretion by the court.”

         Only days after petitioner filed his pro se amended petition, on approximately April 19,
2012, petitioner’s counsel filed yet another amended habeas petition with an accompanying Losh
list.4 His counsel’s amended petition set forth a claim of ineffective assistance of counsel for (1)
failing to object to the jury instructions on premeditation and deliberation; and (2) failing to
adequately investigate the law as it related to photographic arrays and, thus, failing to object to
Lisa Hearn’s identification of petitioner in that photographic array. It also stated that “Mr.
Delgado requests the Court consider all of his pro se grounds, individually and cumulatively.”

      In May of 2012, the circuit court ordered petitioner to elect whether to proceed on his pro
se amended petition or on his counsel’s amended petition, stating that he could not proceed on


petition, petitioner had another five court-appointed attorneys, four of whom were also permitted
to withdraw. His current attorney, a public defender, also appears to have moved to withdraw in
March of 2007, but the circuit court denied that motion.
       2
         Petitioner filed a direct appeal, which this Court refused, and two original jurisdiction
petitions for writs of mandamus with regards to DNA testing, which were also refused. These
filings are not at issue in the current appeal.
       3
           Although petitioner filed this habeas petition pro se, he was at that time represented by
counsel.
       4
        See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981)(providing an extensive,
though not exhaustive, checklist of grounds potentially employed in habeas corpus proceedings,
commonly referred to as “the Losh list.”).
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both amended petitions separately. In July of 2012, petitioner elected to proceed on the amended
petition filed by his counsel, but he maintained his objection to the circuit court’s denial of what
he considered permissible “hybrid representation.” The respondent warden filed his response,
with an accompanying motion to dismiss, to which petitioner replied.

        On May 1, 2014, the circuit court entered its order denying petitioner habeas relief. The
circuit court considered those grounds raised in his pro se amended petition, his counsel’s
amended petition, and those grounds raised in his Losh list but not discussed in either amended
petition. It is from this order that petitioner now appeals.

        We consider petitioner’s assignments of error in accordance with our prior holding
directing that

               “[i]n 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, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        On appeal, petitioner asserts three assignments of error. First, he contends that the circuit
court erred in denying habeas relief because his trial counsel and co-counsel were ineffective for
failing to object to the circuit court’s jury instructions on the distinction between first- and
second-degree murder, specifically on the instructions for premeditation and deliberation. 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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Here, the circuit
court, without objection, stated in its charge to the jury that

       [t]he Court instructs the jury that to constitute a willful, deliberate and
       premeditated killing which is murder in the first degree, it is not necessary that the
       intention to kill should exist for any particular length of time prior to the actual
       killing; it is only necessary that such intention should have come into existence
       for the first time at the time of such killing, or at any time previously.

See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). Although petitioner argues that this
instruction was legally incorrect, pursuant to State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163
(1995), and the failure to object to the same deprived him of his constitutional right to effective
counsel, we disagree.

        As to the instruction given, we explained in Guthrie that “when it is given, its
significance should be explained to the jury.” Id. at 674, 461 S.E.2d at 180. The circuit court

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instructed the jury on the elements of the crime of murder and on the defendant’s presumption of
innocence. The circuit court further instructed the jury that “[m]urder of the first degree is the
willful, deliberate, premeditated, intentional and malicious killing of another person,” while
“[m]urder in the second degree is the unlawful intentional killing of another person with malice
but without deliberation and premeditation.” In explaining these differences between first- and
second-degree murder, the court instructed the jury that “to premeditate is to think of a matter
before it is executed. Premeditation implies something more than deliberation, and may mean the
party not only deliberated but formed in his mind the plan of destruction.” We disagree with
petitioner’s contention that these instructions were so incomplete that they effectively stated that
premeditation and deliberation could be spontaneous. Even though the jury was not provided
with the entire passage on deliberation set forth in State v. Dodds, 54 W.Va. 289, 46 S.E. 228
(1903), the circuit court correctly noted that “[t]he giving of an incomplete instruction does not
constitute reversible error where consideration of the instructions as a whole cures any defect in
the incomplete instruction.” See State v. Pannell, 175 W.Va. 35, 37, 330 S.E.2d 844, 847
(1985)(stating that “[t]he giving of confusing or incomplete instructions does not constitute
reversible error where a reading and consideration of the instructions as a whole cure defects in
the complained of instructions.”). Given that these instructions are not clearly incorrect and
reading the instructions as a whole, we find no error in the circuit court’s ruling. Petitioner’s trial
counsel’s failure to object was not deficient performance, under an objective standard of
reasonableness, and the failure to object did not deprive him of his constitutional right to
counsel. Therefore, petitioner fails to satisfy the first prong of the Miller/Strickland test.

       Moreover, assuming, arguendo, that counsel’s failure to object constituted deficient
performance, we would also find that the petitioner failed to meet the second prong of the
Miller/Strickland test. To succeed on his claim, petitioner must have demonstrated that his
counsel’s purported deficiency created a “reasonable probability of a different outcome.” As the
United States Supreme Court has observed:

       [a]ttorney errors come in an infinite variety and are as likely to be utterly harmless
       in a particular case as they are to be prejudicial. They cannot be classified
       according to likelihood of causing prejudice. Nor can they be defined with
       sufficient precision to inform defense attorneys correctly just what conduct to
       avoid. Representation is an art, and an act or omission that is unprofessional in
       one case may be sound or even brilliant in another. Even if a defendant shows that
       particular errors of counsel were unreasonable, therefore, the defendant must
       show that they actually had an adverse effect on the defense.

Strickland v. Washington, 466 U.S. 668, 693 (1984). Had petitioner’s counsel objected to the
instructions at issue, petitioner cannot show that he was adversely affected. There was sufficient
evidence adduced during petitioner’s trial to support the premeditation and deliberation elements
of first-degree murder. As previously indicated, the evidence demonstrated that petitioner
confessed to the killing, the victim was found naked on the lawn in front of her apartment
complex, blood was found inside her apartment, and she had been stabbed twenty-three times
with a steak knife. In light of his confession, the blood inside her apartment coupled with the
location of her body outside, and the number of stab wounds could certainly be proof of first-
degree murder beyond a reasonable doubt. Moreover, petitioner places great weight on the fact

                                                  4

that the jury, during its deliberations, requested “instructions again on first and second degree[.]”
However, this request does not clearly indicate, as petitioner suggests, that the jury was confused
by the circuit court’s instructions on the issue; to the contrary, it could be read as an illustration
that the jury considered the instructions adequate and wanted to hear them “again.” Under the
circumstances presented in the record on appeal, petitioner could not satisfy his burden that it is
reasonably probable that his counsel’s failure to object to the jury instructions would have
resulted in a different outcome. Therefore, the circuit court did not err in finding that petitioner
failed to meet his burden under the Miller/Strickland test.

        Second, petitioner argues that the circuit court erred in failing to consider the grounds for
relief raised in his pro se amended habeas petition filed in April of 2012.5 Although petitioner
contends that the circuit court erred in denying his motion to proceed both pro se and by counsel
on two, separate habeas petitions in what he describes as “hybrid representation,” the circuit
court specifically considered all grounds raised in those petitions—petitioner’s attorney’s
grounds and his pro se grounds. In section III of its detailed, thorough order denying habeas
relief, which is entitled “Petitioner’s Pro Se Petition,” the circuit court considered the grounds
raised by petitioner pro se. Moreover, in addition to both the grounds raised in his pro se petition
and his attorney’s petition, the circuit court considered those grounds raised in petitioner’s Losh
list, but not addressed in either petition. Therefore, for that reason, we find no merit to
petitioner’s argument in this regard.

        Finally, petitioner assigns error to the circuit court’s denial of habeas relief or, at a
minimum, failure to hold an omnibus evidentiary hearing on the issue of whether his trial
counsel and co-counsel were ineffective in failing to challenge the admission of Lisa Hearn’s
testimony based upon the photographic array used in her identification. Following a review of
the record on appeal, we find no error in this regard. Pursuant to syllabus point 1 of Perdue v.
Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973), “[a] court having jurisdiction over habeas
corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and
without appointing counsel for the petitioner 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.” It is clear from the record that petitioner’s counsel made a strategic decision
not to object to the State’s introduction of Ms. Hearn’s testimony, which was still subject to his
cross-examination, nor to challenge the photographic array in exchange for the State’s agreement
not to seek in-court identification of him by Ms. Hearn. We have explained that, in reviewing
counsel’s performance, courts must refrain “from engaging in hindsight or second-guessing of
trial counsel’s strategic decisions.” Syl. Pt. 6, State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114,
117 (1995) (citation omitted). Therefore, we find that the circuit court did not abuse its discretion
in denying the petition and in doing so without hearing as to this issue.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

       5
         It is not clear from the record on appeal whether his counsel could have raised any of
petitioner’s pro se grounds for habeas relief pursuant to Anders v. California, 386 U.S. 738,
(1967), and, if so, why he did not proceed in that manner.
                                                  5

ISSUED: May 18, 2015

CONCURRED IN BY:

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

DISSENTING:

Justice Robin Jean Davis




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