                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Donell D. Lee,                                                                    FILED
Petitioner Below, Petitioner                                                September 19, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-1314 (Marion County 11-C-140)                                       OF WEST VIRGINIA


David Ballard, Warden, Mount Olive
Correctional Complex,
Respondent Below, Respondents


                               MEMORANDUM DECISION
       Petitioner Donell D. Lee, by counsel Sherman L. Lambert, Sr., appeals the circuit court’s
November 22, 2013, order denying his petition for writ of habeas corpus. Respondent, David
Ballard, Warden, Mount Olive Correctional Complex, by counsel Julie A. Warren, filed a
response. Petitioner filed 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       Following a jury trial in August of 2008, petitioner was convicted of first degree murder
and conspiracy to commit first degree murder in relation to the fatal shooting of Derrick
Osborne. Petitioner was sentenced to life in prison with the possibility of parole for the murder
conviction and one to five years in prison for the conspiracy conviction, with the sentences to run
concurrently. Petitioner was one of four co-defendants charged in relation to the murder of Mr.
Osborne.1

       Petitioner filed his direct appeal with this Court on January 19, 2010, raising five
assignments of error: (1) insufficiency of the evidence; (2) withholding of exculpatory evidence

       1
          The other co-defendants were Steven Podolsky, Lafayette Jenkins, and Lincoln Taylor.
According to petitioner, Mr. Podolsky pled guilty to conspiracy to commit murder and accessory
after the fact, and the charge of first degree murder was dismissed pursuant to a plea agreement.
Also pursuant to a plea agreement, Mr. Jenkins pled guilty to voluntary manslaughter and
conspiracy to commit murder. Mr. Taylor’s charges proceeded to jury trial, where he was
acquitted of conspiracy to commit murder; however, the jury was unable to reach a verdict on the
first degree murder charge. Thereafter, Mr. Taylor pled guilty to second degree murder.


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and inappropriate comments from the prosecutor during opening statements and closing
arguments; (3) false testimony to the grand jury; (4) error in the denial of his motion for directed
verdict; and (5) error in the denial of his post-verdict motion for judgment of acquittal and for a
new trial.

        On July 12, 2010, this Court refused petitioner’s direct appeal by order and without
argument.2 Thereafter, petitioner filed a motion for reconsideration and an amended petition for
direct appeal. On October 13, 2010, this Court entered an order refusing petitioner’s motion to
reconsider its prior refusal order of July 12, 2010.

        On May 26, 2011, petitioner filed a petition for a writ of habeas corpus in circuit court in
which he raised eight arguments in support of habeas relief: (1) insufficiency of the evidence; (2)
withholding of exculpatory evidence; (3) improper comments by the prosecutor regarding the
evidence during opening statement and closing argument; (4) false testimony to the grand jury;
(5) error in the denial of his motion for a directed verdict; (6) error in the denial of his post-trial
motion for acquittal and for a new trial; (7) unfair pre-trial publicity; and (8) the cumulative
effect of all errors resulted in a denial of due process.

        On September 9, 2011, the circuit court entered an order denying the habeas petition
without holding an evidentiary hearing. The circuit court found that six of the eight issues
petitioner raised in his habeas petition had been previously and finally adjudicated by this
Court’s July 12, 2010, refusal order. As to the other two arguments, the circuit court denied them
as lacking merit or factual support. Petitioner appealed to this Court and the matter was docketed
as No. 11-1781. By order entered on January 9, 2013, this Court summarily reversed, in part, and
affirmed, in part, the circuit court’s September 9, 2011, order. Specifically, this Court found that
the “circuit court properly denied habeas relief on the ground of unfair pre-trial publicity, but the
circuit court erred in its determination that grounds raised in the petition for appeal that was
denied under this Court’s prior practice need not be addressed in an omnibus habeas corpus
proceeding.” As a result, this Court remanded the matter to the circuit court for further
proceedings.

       Consistent with this Court’s January 9, 2013, order, the circuit court conducted an
omnibus hearing on September 19, 2013. Petitioner appeared in person and with counsel. The
prosecuting attorney appeared on behalf of respondent. During the hearing, the circuit court
heard the arguments of counsel, but no evidence was admitted3 and no witnesses testified. By

       2
            The circuit court mistakenly refers to this Court’s refusal order as a “memorandum
opinion.”
       3
          During the omnibus hearing, petitioner’s counsel submitted a three-ring binder of
documents, asserting that the documents contained portions of falsified grand jury testimony.
However, as the circuit court noted, petitioner’s counsel made no motion to have the documents
admitted as evidence; he failed to authenticate the documents; and no witnesses were called to
corroborate counsel’s assertion that the witnesses lied to the grand jury. The documents,
consisting of approximately 980 pages, are included in the appendix for petitioner’s present
appeal, as Volumes II through V.
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order entered November 22, 2013, the circuit court addressed the eight arguments presented by
petitioner and denied the habeas petition. Petitioner now appeals to this Court.

       We review an order denying a petition for habeas corpus 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 following general assignment of error: “The circuit court
erroneously dismissed petitioner’s petition for writ of habeas corpus and violated petitioner’s
constitutional rights guaranteed by the due process clause of the fourteenth amendment of the
United States Constitution and under Article III, § 10 and § 14 of the West Virginia
Constitution.” In support of his appeal, petitioner raises the same arguments raised before the
circuit court, except that he does not allege error related to the circuit court’s ruling on pre-trial
publicity.

        Our review of the record reflects no 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 November 22, 2013, we hereby adopt and incorporate the circuit court’s well-
reasoned findings and conclusions as to the arguments raised in this appeal. The Clerk is directed
to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: September 19, 2014

CONCURRED IN BY:

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




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