                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Earl Ambrose Jr.,                                                                 FILED
Petitioner Below, Petitioner                                                      April 26, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs.) No. 12-0723 (Berkeley County 10-C-973)                                    OF WEST VIRGINIA



John J. Sheeley, Administrator, Eastern Regional Jail,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner, Earl Ambrose Jr., by counsel, Nicholas Forrest Colvin, appeals the Circuit
Court of Berkeley County’s order entered on May 11, 2012, denying his petition for writ of
habeas corpus. Respondent, John J. Sheeley, Administrator, Eastern Regional Jail, by counsel,
Christopher C. Quasebarth, filed a response in support of the circuit court’s decision. Petitioner
did not file a reply.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was convicted by a jury of third offense driving under the influence, fleeing
while under the influence, second offense driving while suspended for driving under the
influence, assault on a police officer, and fleeing from an officer. The court sentenced petitioner
to one to three years in the penitentiary and a $3,000 fine for third offense driving under the
influence, one to five years in the penitentiary for fleeing while under the influence, one year in
the penitentiary and a $1,000 fine for second offense driving while suspended for driving under
the influence, six months in the penitentiary for assault on an officer, and one year in the
penitentiary for fleeing from an officer. The court ordered that the sentences run consecutively.

        Petitioner appealed his convictions in August of 2010, and this Court refused his petition.
Petitioner then filed a petition for writ of habeas corpus, arguing ineffective assistance of
counsel, insufficiency of the evidence, excessive sentence, and that cumulative errors violated
his right to due process.
        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

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       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, petitioner makes two assignments of error. His first assignment of error
focuses on his claim of ineffective assistance of counsel. He asserts that (1) trial counsel failed
to properly vouch the record as to counsel’s reasons for desiring to withdraw as counsel prior to
sentencing, thereby causing the circuit court to deny that motion and depriving petitioner of a
meaningful relationship with counsel at sentencing, and (2) trial counsel failed to call an expert
witness at trial to rebut the claim that petitioner was intoxicated. In his second assignment of
error, petitioner argues that the trial judge should have recused himself upon the petitioner’s
filing of a 42 U.S.C § 1983 action naming the judge as a defendant while his petition for writ of
habeas corpus was pending.

        In response to petitioner’s first assignment of error, the State argues that petitioner failed
to provide any factual basis for his claim of ineffective assistance of counsel. In any event, the
State argues that petitioner’s sentence was caused not by his lack of “meaningful relationship”
with his counsel, but by his criminal history and his unlikelihood of rehabilitation, facts that no
attorney could change. The State also argues that there was overwhelming evidence at trial that
petitioner was intoxicated during the incident giving rise to his convictions. Therefore, it was not
ineffective assistance of counsel for trial counsel to not call an expert witness to rebut that the
petitioner was intoxicated.

        Our review of the record reflects no clear error or abuse of discretion by the circuit court.
Having reviewed the circuit court’s “Final Order Denying Petition for Writ of Habeas Corpus”
entered on May 11, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions as to the first assignment of error raised in this appeal. The clerk is
directed to attach a copy of the circuit court’s order to this memorandum decision.

        As to petitioner’s second assignment of error, the State argues that although the record
reflects that petitioner moved to disqualify the trial judge prior to the filing of petitioner’s § 1983
action and the motion was denied shortly thereafter, the record does not reflect that petitioner
moved for the judge’s disqualification after filing the § 1983 action. Therefore, the State argues
that petitioner has failed to preserve this issue for appeal. The State maintains, however, that
even if this Court were to examine this issue, petitioner offers no factual support for how the
judge’s failure to recuse himself constitutes “plain error” under State v. Juntilla, 227 W.Va. 492,
711 S.E.2d 562 (2011). Petitioner admits that his federal suit was short-lived, having been
summarily dismissed less than ninety (90) days after it was filed. Accordingly, we agree with the
State that petitioner failed to preserve this issue for appeal, but even if he did, under the facts and
record of this case, petitioner failed to demonstrate how the trial judge’s failure to recuse himself
from the habeas proceeding constitutes “plain error.”

       For the foregoing reasons, we affirm.

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                                       Affirmed.

ISSUED: April 26, 2013

CONCURRED IN BY:

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




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