                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                 FILED
                                                                               May 20, 2016
Raheim Doleman,                                                                RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
Petitioner Below, Petitioner                                                     OF WEST VIRGINIA


vs) No. 15-0780 (Berkeley County 15-C-235)

Lance Yardley, Warden,
Pruntytown Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Raheim Doleman, pro se, appeals the order of the Circuit Court of Berkeley
County, entered on July 14, 2015, denying his petition for a writ of habeas corpus. Lance Yardley,
Warden, Pruntytown Correctional Center, 1 by counsel Christopher C. Quasebarth, filed a
response.

        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.

       In petitioner’s criminal case, No. 14-F-25, he pled guilty to—and the circuit court
convicted him of—the felony offenses of robbery in the first degree and assault during the
commission of a felony.2 According to respondent’s response to petitioner’s habeas petition, he


       1
       Due to petitioner’s transfer, the “person having the immediate custody” of him has
changed and has been substituted as the respondent. See W.Va. Code § 53-4A-5.
       2
        Petitioner entered his guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25
(1970), which allows a defendant to enter a guilty plea without admitting guilt. See Syl. Pt. 1,
Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).


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participated in “the violent beating and robbery of a prominent local sports hero.”3 Petitioner
entered his guilty pleas pursuant to a binding plea agreement under which he received a definite
sentence of eighteen years of incarceration for first degree robbery and an indeterminate sentence
of two to ten years of incarceration, to be served concurrently.

        In petitioner’s habeas proceeding, No. 15-C-235, he advanced only one ground for relief
which the circuit court decided “upon the [parties’] pleadings.” Petitioner asserted that, following
his sentencing, counsel failed to provide effective assistance by not filing a motion for reduction of
sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure as instructed by
petitioner. In its July 14, 2015, order denying petitioner’s habeas petition, the circuit court
analyzed his claim under the applicable Strickland/Miller standard:

              “In the West Virginia courts, claims of ineffective assistance of counsel are
       to be governed by the two-pronged test established in Strickland v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel’s performance
       was deficient under an objective standard of reasonableness; and (2) there is a
       reasonable probability that, but for counsel’s unprofessional errors, the result of the
       proceedings would have been different.” Syllabus Point 5, State v. Miller, 194
       W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 1, State ex rel. Kitchen v. Painter, 226 W.Va. 278, 700 S.E.2d 489 (2010). The circuit court
found that petitioner failed to prove “either prong” of the Strickland/Miller standard. First, the
circuit court determined that petitioner was unable to show counsel’s performance was deficient
because “[p]etitioner identifies no grounds upon which a Rule 35(b) motion for reconsideration
could have been based” under the facts and circumstances of this case. The circuit court explained
that petitioner had already received a “very favorable” sentence, especially given that there is no
maximum sentence for first degree robbery. 4 Second, the circuit court determined that even
assuming, arguendo, that counsel’s performance was deficient, petitioner could not satisfy the
second part of the Strickland/Miller standard—the “prejudice prong”—because “[p]etitioner fails
to prove a reasonable probability” that the court would have reduced his sentence had a Rule 35(b)
motion been filed. Accordingly, the circuit court concluded that “[p]etitioner fails to prove that the

       3
           We note that the record on appeal is sparse.
       4
           West Virginia Code § 61-2-12(a) provides, in pertinent part, as follows:

                 Any person who commits or attempts to commit robbery by: (1)
                 Committing violence to the person, including, but not limited to,
                 partial strangulation or suffocation or by striking or beating . . . is
                 guilty of robbery in the first degree and, upon conviction thereof,
                 shall be imprisoned in a state correctional facility not less than ten
                 years.”

(Emphasis added.)

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filing of such a motion would have affected the constitutional validity of either his conviction or
the sentence imposed.” See Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d
805 (1979), cert. denied, 464 U.S. 831 (1983) (“A habeas corpus proceeding is not a substitute for
a writ of error in that ordinary trial error not involving constitutional violations will not be
reviewed.”).

      Petitioner now appeals the circuit court’s July 14, 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, 633 S.E.2d 771 (2006). “In deciding ineffective
assistance claims, a court need not address both prongs of the conjunctive Strickland/Miller
standard, but may dispose of such a claim based solely on a petitioner’s failure to meet either prong
of the test.” State ex rel. Daniel v. Legursky, 195 W.Va. 314, 321, 465 S.E.2d 416, 423 (1995).

       On appeal, petitioner argues the same claim he presented to the circuit court: that counsel
was ineffective because he failed to file a Rule 35(b) motion for reduction of sentence. Respondent
counters that the circuit court correctly rejected petitioner’s claim and denied his habeas petition.

        Given petitioner’s allegation that he instructed counsel to file a Rule 35(b) motion, we
choose to decide his appeal only on the prejudice prong of the Strickland/Miller standard. We
recently addressed an identical claim in Shawn Michael R. v. Williamson, No. 15-0024, 2016 WL
363648, at *2 (W.Va. Jan. 29, 2016) (memorandum decision):

                . . . [T]he circuit court accepted, arguendo, petitioner’s assertion that he
       directed trial counsel to file a motion for reduction of sentence, but found that their
       failure to do so did not prejudice him. We note that the same judge who denied
       relief in petitioner’s habeas proceeding presided in his criminal case; therefore, the
       judge knew whether he would have favorably viewed a motion to reduce
       petitioner’s sentence. See State ex rel. Watson v. Hill, 200 W.Va. 201, 204, 488
       S.E.2d 476, 479 (1997) (trial judge is sufficiently familiar with underlying
       proceedings to determine most habeas issues without extensive evidence).
       Therefore, we determine that the circuit court did not clearly err in finding this
       claim without merit on the basis that even if a motion for reduction of sentence was
       filed, it would have not changed the result of petitioner’s criminal case.

We note that, like in Shawn Michael R., the same judge who denied petitioner’s habeas petition in
the instant case also presided in petitioner’s criminal case. Thus, the judge knew whether he would
have favorably viewed a motion to reduce petitioner’s sentence and also made findings indicating
that such a motion would not have been granted. In its order, the circuit court explained that
                                                 3
petitioner had already received a “very favorable” sentence under the facts and circumstances of
this case. Therefore, we find that the circuit court did not clearly err in determining that even if a
motion for reduction of sentence was filed, it would have not changed the result of petitioner’s
criminal case.5 Accordingly, 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 July 14, 2015, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                           Affirmed.

ISSUED: May 20, 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




       5
         Petitioner asserts that upon the filing of a Rule 35(b) motion, he would have had the
opportunity to present to the circuit court his efforts at rehabilitation during incarceration.
However, we note that even when a motion for reduction of sentence presents a “sympathetic
case,” whether to grant or deny the motion is still committed to the sound discretion of the circuit
court. State v. Head, 198 W.Va. 298, 305, 480 S.E.2d 507, 514 (1996) (Cleckley, J., concurring).
In this case, a judge who was very familiar with petitioner’s case not only made findings indicating
that he would be disinclined to grant such a motion, but also provided an explanation therefor.

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