                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Richard L. Lawson Jr.,                                                            FILED
Petitioner Below, Petitioner
                                                                                May 22, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 16-0537 (Kanawha County 06-MISC-320)                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Center,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Richard L. Lawson Jr., by counsel Charles R. Hamilton, appeals the Circuit
Court of Kanawha County’s May 23, 2016, order denying his amended petition for writ of
habeas corpus. Respondent David Ballard, Warden, by counsel Gordon L. Mowen, II, 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 trial counsel and
ineffective assistance of habeas counsel.

        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 April of 1996, the Kanawha County grand jury indicted petitioner and his co-defendant
on one count of first-degree murder, one count of arson, five counts of forgery, and five counts
of uttering. These charges stemmed from an incident in which petitioner and his co-defendant
murdered Dr. Everette Knapper (“the victim”), stole multiple checks, and attempted to burn
down the victim’s residence to conceal their crimes.

        In 1997, while the parties were prepared to proceed to trial, petitioner accepted a plea
agreement in which he would plead guilty to first-degree murder. As part of the agreement, the
State agreed to dismiss the remaining charges and to recommend mercy in exchange for his
testimony against his co-defendant. During the plea colloquy, the circuit court thoroughly
explained what constitutional rights petitioner was giving up by entering a plea of guilty.
Thereafter, petitioner testified as to the factual basis for his plea agreement during which he
allegedly included facts that were not previously known by the State or petitioner’s trial counsel.
As such, the State decided not to proceed with the plea agreement, and the parties proceeded to
trial. Following a jury trial, petitioner was convicted on all counts charged in the indictment.
Ultimately, the circuit court sentenced petitioner to consecutive sentences of life in prison

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without the possibility of parole for first-degree murder, two to twenty years of incarceration for
arson, and one to ten years for each count of forgery and uttering.1

        In 2002, petitioner filed his first petition for writ of habeas corpus alleging twelve
independent grounds for relief, including whether the circuit court erred in allowing the jury to
hear evidence from a West Virginia State Police serologist regarding DNA testing results. After
conducting an omnibus evidentiary hearing, the circuit court by order entered February 13, 2006,
denied petitioner habeas relief. Thereafter, petitioner appealed the circuit court’s order denying
habeas relief to this Court. By order entered on November 28, 2006, this Court granted
petitioner’s appeal, and remanded the case to the circuit court with instructions to conduct a full
evidentiary hearing on Zain III issues consistent with Syllabus Point Four of In re Renewed
Investigation of State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d
762 (2006).2 Thereafter, multiple counsel were appointed and withdrew from representing
petitioner. Ultimately, attorney Charles R. Hamilton was appointed on May 21, 2014.

       In January of 2015, petitioner, by counsel filed an amended petition for writ of habeas
corpus alleging, in part, ineffective assistance of counsel for: (1) failing to prepare him for the
plea proceeding; and (2) for not demanding a Zain III review of the serology evidence. In
October of the same year, the circuit court held an omnibus evidentiary hearing during which
Beverly Selby, petitioner’s trial counsel, and the prosecuting attorney testified. Regarding the
issue of preparing petitioner for the plea proceedings, Ms. Selby testified that she and her co­
counsel3 specifically discussed the plea process and factual basis for the plea with petitioner

       1
           It is unclear whether petitioner filed a direct appeal of his conviction.
       2
           This Court held that:

                  A prisoner against whom a West Virginia State Police Crime Laboratory
                  serologist, other than Fred Zain, offered evidence and who challenges his
                  or her conviction based on the serology evidence is to be granted a full
                  habeas corpus hearing on the issue of the serology evidence. The prisoner
                  is to be represented by counsel unless he or she knowingly and
                  intelligently waives that right. The circuit court is to review the serology
                  evidence presented by the prisoner with searching and painstaking
                  scrutiny. At the close of the evidence, the circuit court is to draft a
                  comprehensive order which includes detailed findings as to the truth or
                  falsity of the serology evidence and if the evidence is found to be false,
                  whether the prisoner has shown the necessity of a new trial based on the
                  five factors set forth in the syllabus of State v. Frazier, 162 W.Va. 935,
                  253 S.E.2d 534 (1979).

       219 W.Va. at 409, 633 S.E.2d at 763, Syl. Pt. 4
       3
           Ms. Selby’s co-counsel died prior to the omnibus evidentiary hearing.




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“numerous” times, including on the morning in which petitioner was set to enter his plea
agreement. Ms. Selby further testified that she met with petitioner approximately forty times
during her representation. According to Ms. Selby, while petitioner was reciting the factual basis
for his plea, he set forth a completely new set of facts that were inconsistent with his confession.
The prosecuting attorney testified that they were unwilling to proceed with the plea agreement
because the factual basis for the plea agreement was inconsistent with the facts as they were
known by the State and destroyed their case against petitioner’s co-defendant.

        With respect to the serology evidence, Ms. Selby testified that an independent laboratory
tested the DNA evidence, and reached the same results as the State’s testing. Ms. Selby also
consulted with attorney Lonnie Simmons regarding the DNA evidence, who opined that there
was no issue with the State’s DNA evidence. After, considering the evidence and the parties’
arguments, the circuit court denied habeas relief by order entered May 23, 2016. This appeal
followed.

       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 the circuit court erred in finding that he
received effective assistance of trial counsel during his plea hearing. Specifically, petitioner
argues that trial counsel failed to salvage the plea agreement. The Court, however, does not
agree. 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 his claim of ineffective assistance of trial counsel, which was also
argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions
as to the assignment of error. 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 May 23, 2016, order to this
memorandum decision.

        Petitioner also alleges that he received ineffective assistance of his first habeas counsel
because that counsel failed to argue that trial counsel was ineffective for not preparing him for
the plea hearing. This Court has held:
               It is the extremely rare case when this Court will find ineffective
       assistance of counsel . . . . The prudent defense counsel first develops the record

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       regarding ineffective assistance of counsel in a habeas corpus proceeding before
       the lower court, and may then appeal if such relief is denied. This Court may then
       have a fully developed record on this issue upon which to more thoroughly review
       an ineffective assistance of counsel claim.

Syl. Pt. 10, in part, State v. Triplett, 187 W.Va. 760, 421 S.E. 2d 511 (1992). Petitioner is raising
habeas counsel’s alleged ineffective assistance for the first time on appeal. If petitioner continues
to believe that prior habeas counsel was ineffective, the preferred way of raising these ineffective
assistance counsel claims is to file a subsequent petition for a writ of habeas corpus raising these
specific issues in the court below. See Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d
606 (1981) (While a prior habeas corpus hearing is res judicata as to all matters either raised or
should have been raised at the habeas corpus hearing, “an applicant may still petition the court
on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus
hearing.”).4

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: May 22, 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




       4
        We express no opinion as to the merits of any subsequent claim for ineffective assistance
of habeas counsel.



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