                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

Christopher L. Palmer,                                                               FILED
Petitioner Below, Petitioner                                                    November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs.) No. 17-0397 (Fayette County 17-C-38)                                            OF WEST VIRGINIA 


R.S. Mutter, Superintendent,
McDowell County Corrections,
Respondent Below, Respondent


                                                          MEMORANDUM DECISION

       Petitioner Christopher L. Palmer, by counsel Jason D. Parmer, appeals the Circuit Court
of Fayette County’s March 28, 2017, order denying his petition for a writ of habeas corpus.1
Respondent R.S. Mutter, Superintendent, by counsel Julianne Wisman, filed a response. On
appeal, petitioner argues that the circuit court erred in denying his ineffective assistance of
counsel claim without making specific findings of fact and due to his failure to plead adequate
facts.

        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.

        On April 22, 2014, petitioner, who was a passenger in a vehicle driven by Marvin White,
entered onto Betty Puckett’s driveway, exited the vehicle, and proceeded into Ms. Puckett’s
home. Ms. Puckett happened to be home and, upon seeing petitioner, whom she did not know,
directed him to leave. Petitioner complied. Ms. Puckett examined her door and noticed that tools
had apparently been used to pry it open. Ms. Puckett subsequently alerted law enforcement, and
during their investigation, a flathead screwdriver and pry bar were recovered from the passenger
side floorboard of Mr. White’s vehicle.

                                                            
              1
        Petitioner originally listed Lance Yardley, Superintendent of Pruntytown Correctional
Center and Jail, as respondent in this matter; however, petitioner is currently housed at
McDowell County Corrections, at which R.S. Mutter is Superintendent. The appropriate party
has been substituted as respondent pursuant to Rule 41(c) of the 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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        On September 9, 2014, petitioner was indicted on one count of conspiracy to commit a
felony and one count of burglary. Petitioner’s trial on these charges commenced on November
20, 2014, and on that same day, the jury found him guilty of the two counts charged in the
indictment. Shortly thereafter, on November 24, 2014, the State filed an information under West
Virginia Code §§ 61-11-18 and -19 alleging that petitioner was twice before convicted of a
felony offense.2 Petitioner entered into an agreement with the State whereby he admitted to being
previously convicted of one felony offense in exchange for the State’s agreement to not seek a
recidivist life sentence.

       On July 24, 2015, the petitioner and the State appeared for sentencing. The circuit court
sentenced petitioner to not less than one nor more than five years of incarceration for his
conspiracy to commit a felony conviction and to not less than two nor more than fifteen years of
incarceration for his burglary conviction, which was enhanced under West Virginia Code § 61-
11-18 as though petitioner had only once before been convicted of a felony, in accordance with
the parties’ agreement. The court further ordered these sentences to run consecutively to one
another and consecutively to a sentence petitioner was then serving for a Summers County, West
Virginia conviction. We affirmed petitioner’s convictions and sentences in State v. Palmer, No.
15-0858, 2016 WL 4611221 (W.Va. Sept. 6, 2016)(memorandum decision).

       On February 8, 2017, petitioner filed a pro se petition for a writ of habeas corpus.
Relevant to the instant appeal, petitioner alleged that he received ineffective assistance of trial
counsel due to trial counsel’s failure to investigate or interview the State’s witnesses, to object to
evidence the State used at trial concerning the tools recovered, to interview his “crucial witness,”
to object to the court’s requirement that petitioner wear a stun belt during trial, to object to the
photo lineup shown to the victim, to hire experts to dispute the State’s evidence, to object to
“discovery violations” by the State, to object to false testimony given to the grand jury, and
because counsel “let [the] State and court file [a recidivist] information.”

       Without appointing counsel or holding a hearing, the circuit court denied petitioner’s
habeas petition. In its order, the court addressed collectively petitioner’s contentions that trial
counsel failed to investigate or interview the State’s witnesses, failed to object to the tool
                                                            
              2
        West Virginia Code § 61-11-19 provides that “[i]t shall be the duty of the prosecuting
attorney when he has knowledge of former sentence or sentences to the penitentiary of any
person convicted of an offense punishable by confinement in the penitentiary to give information
thereof to the court immediately upon conviction and before sentence.” West Virginia Code §
61-11-18 sets forth that

              when any person is convicted of an offense and is subject to confinement in the
              state correctional facility therefor, and it is determined . . . that such person has
              been before convicted in the United States of a crime punishable by confinement
              in a penitentiary, [and] . . . the court imposes an indeterminate sentence, the
              minimum term shall be twice the term of years otherwise provided for under such
              sentence.




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evidence, failed to interview crucial witnesses, failed to hire an expert, failed to object to
“discovery violations,” failed to object to testimony before the grand jury, and failed to object to
the use of a photo lineup. The court found that dismissal of these claims was warranted because
petitioner

              provide[d] no factual support, explanation, argument, examples, or references to
              the record, which would even remotely support the foregoing seven (7) claims
              and accordingly warrant the appointment of counsel or a hearing in the matter.
              Beyond mere assertions, the [p]etitioner has provided this [c]ourt with nothing to
              support these random allegations.
In sum, the court found that these claims amounted to “nothing more than innuendo, speculation,
and blank, unsupported assertions that do not warrant further review.”

        Additionally, in regard to petitioner’s claim that trial counsel rendered deficient
assistance due to his failure to object to the State’s use of a photo lineup, the court noted that “[a]
thorough review of the record in the underlying matter reveals that [t]rial [c]ounsel actually did
challenge the admissibility of the photo lineup.” The circuit court also noted that we found no
error in the trial court’s ruling that the photographic lineup was admissible. Palmer, 2016 WL
4611221, *4.

        With respect to petitioner’s assertion that trial counsel rendered ineffective assistance due
to his failure to object to the court’s requirement that he wear a stun belt during trial, the court
noted that it was within its discretion to require him to wear a stun belt. Moreover, the court
directed that the belt be worn under petitioner’s clothing, so it was not visible to the jury and,
therefore, did not create the impression that he was a dangerous individual. Accordingly, the
court found that counsel did not render ineffective assistance of counsel for not objecting and
that petitioner suffered no prejudice.

         Finally, in addressing petitioner’s claim that trial counsel “let” the State and the court file
a recidivist information, the court noted that West Virginia Code § 61-11-19 places the duty of
filing a recidivist information on the prosecuting attorney, not a defendant’s attorney or the
circuit court. More importantly, though, trial counsel moved to dismiss the recidivist information
and, upon the trial court’s denial of that motion, filed a petition for a writ of prohibition with this
Court to prevent the circuit court from proceeding on the recidivist information. In other words,
the circuit court found that trial counsel “took considerable action on behalf of the [p]etitioner to
challenge and prevent the State from proceeding on the felony enhancement information and
then, after all challenges failed, secured the [p]etitioner a very reasonable plea deal to avoid the
[p]etitioner receiving a potential life sentence.”

       The court entered its order denying and dismissing petitioner’s habeas petition on March
28, 2017, and it is from this order that petitioner appeals.3

              This Court reviews appeals of circuit court orders denying habeas corpus relief under the
                                                            
              3
       During the pendency of his appeal, petitioner moved for the appointment of counsel.
This Court granted petitioner’s motion by order entered on November 8, 2017.
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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).

       Petitioner raises two assignments of error on appeal. First, petitioner claims the circuit
court erred in denying his ineffective assistance of counsel claim without making specific
findings of fact. In support of this claim, petitioner likens the circuit court’s order to the one we
found to be insufficient in State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997).

       In addressing this assignment of error, we begin by noting that

               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.
Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). Further, Rule 4(c) of the
Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia authorizes
dismissal of a habeas petition when “the petition contains a mere recitation of grounds without
adequate factual support[.]” Because petitioner’s petition is devoid of factual support, we find no
error in the circuit court’s denial of habeas relief. For example, petitioner failed to identify any
specific witnesses that trial counsel should have interviewed or investigated, specify the
questions counsel should have asked of these witnesses, identify any specific evidence to which
counsel should have objected, or specify any alleged discovery violation. Rather, petitioner’s
allegations merely recite purported grounds for relief, but fail to include any factual support.

       We also find that the circuit court’s twenty-three-page order is distinguishable from that
presented in Watson. In Watson, the circuit court’s order stated in total,

       Upon consideration of the petition for habeas corpus the court is of the opinion
       that the allegations are entirely without merit and that good cause for the filing
       thereof and appointment of counsel has not been shown.
       Accordingly, the requests to file the petition and to appoint new counsel are
       hereby DENIED.
200 W.Va. at 203, 488 S.E.2d at 478. The habeas court’s order in the instant matter recited pages
of applicable law, a detailed factual history of the proceedings in petitioner’s underlying criminal
matter, and an adequate explanation of the basis for the court’s dismissal of petitioner’s


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ineffective assistance of counsel claim. Any ostensibly lacking analysis is attributable wholly to
petitioner’s failure to bolster his assertions with facts or citations to the underlying record.

        In further support of his first assignment of error, petitioner also supplies argument for
his “most noteworthy” ineffective assistance of counsel claim that counsel “failed to have [his]
crucial witness interviewed or brought to [his] trial[,] . . . and hired no experts to dispute the
State’s evidence.” As addressed above, petitioner’s petition failed to identify this “crucial
witness” or explain how an expert would have helped his case. Furthermore, the arguments he
makes on appeal were not presented in his petition for a writ of habeas corpus.4 Therefore, we
find no error in the court’s dismissal of these grounds due to petitioner’s failure to provide
adequate factual support below.

        Second, petitioner claims that the circuit court erred in dismissing his ineffective
assistance of counsel claim for failing to plead adequate facts. Petitioner argues that the court
subjected him to a pleading standard higher than the “notice pleading” required in civil actions
by Rule 8 of the West Virginia Rules of Civil Procedure. Additionally, because he was acting pro
se, petitioner argues that the circuit court “had a duty to ensure that his case was not ‘defeated
solely by reason of [his] unfamiliarity with procedural or evidentiary rules.’”

        Petitioner’s citations to Rule of Civil Procedure 8, which sets forth general rules of
pleading, and case law concerning motions to dismiss civil complaints fail to establish
entitlement to relief. With specific respect to petitions for writs of habeas corpus, we have held
that such petitions may be denied “without a hearing and without appointing counsel” when the
“petition, exhibits, affidavits or other documentary evidence filed therewith show to [the] court’s
satisfaction that the petitioner is entitled to no relief.” Perdue, 156 W.Va. at 467, 194 S.E.2d at
658, Syl. Pt. 1, in part. It is also well established that “[a] circuit court may ‘summarily deny
unsupported claims that are randomly selected from the list of grounds” identified in Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). Markley v. Coleman, 215 W.Va. 729, 733,
601 S.E.2d 49, 53 (2004). Pro se petitioners are not excused from these requirements and “must
specifically state in detail the underlying facts that support the claim” because “without detailed
factual support[,]” the appointment of counsel and the holding of a hearing is simply not
justified. Losh, 166 W.Va. at 771, 277 S.E.2d at 612. Accordingly, we find that petitioner was
not held to an inapplicable pleading standard, and the circuit court, which is tasked with making

                                                            
              4
          Petitioner’s arguments on appeal concerning the State’s evidence are rooted in trial
counsel’s alleged failure to “challenge or attempt to limit the State’s tool mark evidence . . . or
call an expert to present competing scientific evidence.” At trial, the State’s tool mark expert
testified that he could not be certain that the tools found in the vehicle in which petitioner was
riding at the time of the burglary were used to burgle the victim’s home. Petitioner’s trial counsel
used this inconclusive opinion to petitioner’s benefit in arguing that he did not burgle the
victim’s home and that he was mistakenly identified by the victim. The same circuit judge who
addressed petitioner’s habeas petition also presided over petitioner’s trial, and we have
previously held that there is a “strong presumption that counsel’s actions were the result of sound
trial strategy[.]” Coleman v. Painter, 215 W.Va. 592, 596, 600 S.E.2d 304, 308 (2004) (citation
omitted). Accordingly, we find these arguments to be unavailing.
  

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“the initial decision [of] whether a petition shows probable cause warranting further inquiry[,]”
did not err in dismissing his petition. Id.

        For the foregoing reasons, we affirm the circuit court’s March 28, 2017, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                       Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment
 

 

 

 




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