                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Jeremy Lyle Shultz,
Petitioner Below, Petitioner                                                     FILED
                                                                             October 20, 2017
vs) No. 16-0934 (Kanawha County 13-P-362)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Jeremy Lyle Shultz, by counsel Edward L. Bullman, appeals the Circuit Court
of Kanawha County’s “Final Order,” entered on September 2, 2016, denying his petition for a
writ of habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex,
by counsel David A. Stackpole, filed a response.

        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 2011, a jury convicted petitioner of kidnapping, first-degree robbery, and conspiracy.
The victim of petitioner’s crimes was Danny Nance, who was employed by Prestige Delivery
Service to deliver pharmaceuticals to medical clinics in the Kanawha County area. The evidence
at trial revealed that in the morning of April 27, 2010, the victim had delivered pharmaceuticals
to Cabin Creek Health Clinic when a man, later identified as petitioner, stopped him as he exited
the clinic. Petitioner directed the victim at gunpoint to get into his delivery van and the two
proceeded to Sharon Hollow. Once at Sharon Hollow, petitioner and the victim came upon a
white van with James Gravely and Sherri Sampson Gravely inside. They took the victim’s
cellular phone and threw his keys on the ground; bound the victim’s hands and feet with plastic
ties; took the remaining pharmaceuticals from the victim’s delivery van and put them in the
white van; and drove away in the van. After a short time, the victim freed himself and found his
keys. He drove to the Cabin Creek Health Clinic and called the police.

        State Police Trooper Scott Pettry reported to the clinic and interviewed the victim.
Trooper Pettry then contacted Detective Don Scurlock, who had been involved in an ongoing
investigation regarding medication theft in the area. The investigation led to a man named Curtis



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Wilson, who owned a white van matching the description given by the victim.1 Mr. Wilson
informed the police that he loaned his van to petitioner on the Monday before the robbery and
that he owed a drug debt to petitioner in the amount of approximately $5,000, which would be
cancelled if he allowed petitioner to borrow the van.

        Detective Scurlock had identified petitioner as a person of interest in his investigation.
Trooper Pettry compiled a photo lineup and presented it to the victim, and the victim identified
petitioner as the man who ordered him into his delivery van and drove him to Sharon Hollow.
The victim indicated that petitioner was wearing a dark-colored coat with a hood over his head;
however, his face was exposed. Additionally, at trial, the victim was able to identify tattoos on
petitioner’s arm because petitioner had pushed his sleeves up while driving the delivery van.

        Police also interviewed Mr. Gravely, who was incarcerated on an unrelated charge. Mr.
Gravely admitted to his involvement in the crimes and implicated petitioner and Ms. Sampson
Gravely, his ex-wife, as well. Mr. Gravely told the police that he and Ms. Sampson waited in Mr.
Curtis’ van while petitioner kidnapped the victim. Mr. Gravely stated that Ms. Sampson stayed
in the van while he and petitioner transferred the pharmaceuticals from the victim’s van. Finally,
Mr. Gravely specified the location where they threw stolen totes and pharmaceuticals over a
hillside. Trooper Pettry went to the location and found totes, ointments, and creams; however,
police never recovered the stolen narcotic drugs. Trooper Pettry then arrested petitioner, who
denied any involvement in the crimes. Petitioner was scheduled to be released from parole on or
about the day of his arrest.2

        Mr. Gravely and Ms. Sampson pled guilty under plea agreements. At petitioner’s trial,
however, Mr. Gravely did not implicate petitioner in the crimes; rather, he testified that he and
Ms. Sampson waited in the white van for the drugs to arrive, but was unaware of the identity of
the third person involved. Mr. Gravely admitted that he named petitioner when interviewed by
Trooper Pettry, but claimed he did so only because Trooper Pettry promised him that he would
not be implicated if he named petitioner. Trooper Pettry denied pressuring Mr. Gravely to
implicate petitioner.

        In his defense, petitioner intended to call an alibi witness, Paul Martin. Mr. Martin
reported to the courthouse under a subpoena, but left prior to testifying due to an alleged illness.
Alicia Slater, petitioner’s girlfriend, testified that petitioner returned home around 2:30 a.m. from
Columbus, Ohio, on the morning of the robbery and did not leave the house until 11:30 a.m. Like
Mr. Gravely, Ms. Sampson did not implicate petitioner. She testified that Mr. Gravely was the
man who kidnapped the victim, and that she and another man, Mikey Ward, waited in Mr.
Curtis’ white van for the drugs to arrive. She testified that petitioner had no involvement in the
crimes. Finally, petitioner testified and denied any involvement in the crimes. Petitioner claimed
that he had been in Columbus, Ohio until 2:00 a.m. on the morning of the crimes; denied that he

       1
         Mr. Curtis testified that he used to work for Prestige Delivery Service and began selling
narcotics from the deliveries. He testified that he admitted to the thefts after being caught.
       2
         Petitioner had previously pled guilty to attempted breaking and entering and had served
a one-to-three year sentence in an unrelated incident.
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had ever been charged with any drug-related crimes in the past; and denied that he would do
anything to jeopardize his impending release from parole.

        Petitioner also called Dr. David Clayman, psychologist, to testify as an expert in the field
of eyewitness identification. Dr. Clayman was unfamiliar with the specific facts of the case. The
aim of his testimony was to address, generally, the problems that can occur with eyewitness
identifications and photographic lineups. However, contrary to petitioner’s theory of defense, Dr.
Clayman opined that, when a victim identifies a perpetrator from a photographic lineup given
only one day after an incident, the likelihood of contamination is low.

        The jury convicted petitioner of kidnapping and recommended that he receive mercy. The
jury also convicted petitioner of first-degree robbery and conspiracy. The circuit court sentenced
petitioner to life in prison, with mercy, for kidnapping, to run consecutively with a ten-year term
for first-degree robbery and a one to five-year term for conspiracy. Petitioner appealed to this
Court, which affirmed the convictions. State v. Shultz, No. 11-1494, 2013 WL 1632517 (W.Va.
Apr. 16, 2013) (memorandum decision).3

        In July of 2013, petitioner filed a petition for a writ of habeas corpus, which he amended
in August of 2014. He alleged that his trial counsel was ineffective as evidenced by his (1)
introduction of petitioner’s prior felony conviction, parole status, and other bad character
evidence at trial; (2) failure to object to the use of impeachment evidence as evidence of guilt
and failing to request a Caudill4 instruction as to the proper weight to be given to a guilty plea by
a co-defendant; (3) failure to object to the display of petitioner’s tattoo; (4) failure to investigate
the testimony of Dr. David Clayman; (5) failure to present Paul Martin as an alibi witness; (6)
failure to object to the State commenting upon petitioner’s post-arrest Miranda silence; and (7)
failure to conduct an adequate voir dire.5 Petitioner also alleged that he was denied a fair trial as
a result of the cumulative effect of these errors. Petitioner subsequently amended his petition to
claim an Apprendi6 violation of his Sixth Amendment right to trial by jury7 and to allege that the
trial court erred in its determination of mitigating sentencing factors under West Virginia Code §
61-2-14a(b)(3) and (4).

       3
          On direct appeal, petitioner argued that (1) display of his arm tattoo was more
prejudicial than probative; (2) display of his regional jail identification bracelet, caused by the
display of the tattoo, was overly prejudicial; (3) the kidnapping charge was incidental to the
robbery and should have been dismissed; (4) his sentence was disproportionate; and (5) the trial
court violated his due process rights by failing to consider various alternative punishments under
West Virginia Code § 61-2-14a.
       4
           State v. Caudill, 170 W.Va. 74, 289 S.E.2d 748 (1982).
       5
           Petitioner later abandoned the voir dire claim.
       6
           Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.E.2d 435 (2000).
       7
        Respondent states that petitioner’s habeas counsel acknowledged that his Apprendi
argument was contrary to West Virginia case law.
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        The circuit court held an omnibus hearing on December 14, 2015, at which Paul Martin,
petitioner, and John Mitchell Jr. (petitioner’s trial counsel) testified. Mr. Martin testified that he
was unable to testify at petitioner’s trial because he was suffering from walking pneumonia and
bronchitis. He claimed that he and petitioner were together in Columbus, Ohio until 1:00 or 2:00
a.m. on the morning of the crimes, and that he spent that night at petitioner’s residence.
Petitioner testified that he did not consent to his counsel calling Dr. Clayman as a witness and
that his counsel did not involve him in or explain any of the strategic decisions made in his
defense. Mr. Mitchell testified that his theory of defense was that petitioner did not commit the
crimes and had nothing to hide, which explained his decision not to object to the display of
petitioner’s tattoo and the references to petitioner’s parole status. Mr. Mitchell adopted the
strategy that petitioner would not have involved himself in the crimes because it would
jeopardize his impending release from parole. Mr. Mitchell testified that petitioner consented to
proceeding without Mr. Martin’s testimony, rather than seeking a continuance of the trial.
Finally, Mr. Mitchell testified that he spoke with Dr. Clayman prior to his testimony and was
aware that not all of Dr. Clayman’s testimony was favorable, but was willing to call him as a
witness anyway in order to overcome the victim’s eyewitness identification of petitioner.

        By order entered on September 2, 2016, the circuit court denied the habeas petition, and
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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

        On appeal, petitioner raises the same arguments that he presented in the habeas
proceeding before the circuit court, with the exception of his claim that he should have been
entitled to a lesser sentence because of the mitigating factors set forth in West Virginia Code §
61-2-14a. However, we find that this claim has been previously adjudicated, and rejected, in
petitioner’s direct appeal of his conviction and sentence to this Court. Under West Virginia Code
§ 53-4A-1(a), a habeas petitioner is not entitled to relief where the alleged grounds for relief
have been “previously and finally adjudicated or waived in the proceedings which resulted in the
conviction and sentence . . . or in any other proceeding or proceedings which the petitioner has
instituted to secure relief from such conviction or sentence.” Thus, we reject petitioner’s
challenge to his sentence.

        As to petitioner’s remaining assignments of error, 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 these alleged errors, which were also
argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions
as to the assignments of error raised on appeal. 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

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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 September 2,
2016, “Final Order” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 20, 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




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