                          STATE OF WEST VIRGINIA
                        SUPREME COURT OF APPEALS
                                                                               FILED
Wade Painter,                                                               June 15, 2016
                                                                              released at 3:00 p.m.
Petitioner                                                                  RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 15-0540 (Berkeley County 09-C-573)

David Ballard, Warden, Mount Olive Correctional Complex,
Respondent


                           MEMORANDUM DECISION

        Petitioner Wade Painter, by counsel Ben J. Crawley-Woods, appeals the orders of
the Circuit Court of Berkeley County, entered on December 16, 2014 and May 8, 2015,
denying his petition for writ of habeas corpus. Respondent David Ballard, the warden of
Mount Olive Correctional Complex (“the State”),1 by counsel Christopher C. Quasebarth,
filed a response.

       This Court has considered the parties’ briefs, oral arguments, and the record on
appeal. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than
an opinion. For the reasons expressed below, we reverse the December 16, 2014, order,
remanding the case with directions. We affirm the May 8, 2015, order.

                         I. Factual and Procedural Background
       On September 14, 2005, Raymond White, Jr. and his son, Raymond White, IV,
were found dead in their home in Berkeley County, West Virginia. Both men had been
shot. Upon investigating the scene, the police discovered that personal property had been
stolen from the home. On or about September 14, 2005, property was stolen from two
other homes in the area.

      The record reflects that William Barrett, a friend of the Whites, arrived at the
Whites’ home on September 14, 2005, at about 3:45 p.m. and found it in a state he
considered unusual: There was a note on the house that said the victims were out of town,

      1
        To the extent that respondent David Ballard, in his capacity as the warden of
Mount Olive Correctional Complex, is represented by the Berkeley County Prosecuting
Attorney’s office, we will hereinafter refer to Mr. Ballard as “the State.”

                                           1

blankets and curtains covered the windows, the sliding glass door at the back of the house
was open, and items belonging to the victims were strewn about the back yard. Upon
looking in the house, Mr. Barrett noticed more of the victims’ belongings in the floor of
the home, including plants that had been knocked over. Mr. Barrett called a friend, Alec
Hall, out of concern that his friends, the Whites, had been robbed or that the Whites had
been involved in a fight. At Mr. Hall’s direction, Mr. Barrett drove to Mr. Hall’s house.
Then Mr. Barrett, Mr. Hall, Bradford Hall, and Lori Love all drove back to the White
residence. It was then that they discovered the bodies and called the police.

        Upon investigating the deaths, the police learned that a Mazda MX-6 and other
items were missing from the home. At about 8:30 a.m. on September 15, 2005, police
located the Mazda MX-6, which had been abandoned behind a garage. Later that
morning, upon reading about the killings and the missing vehicle in the newspaper, John
Beitzel contacted the police and informed them that he witnessed the tenant of one of his
rental properties in possession of a car matching the description of the stolen Mazda MX­
6. That tenant, Wade Painter, lived together with his girlfriend, Angela Conner, in the
rental property.

        After speaking with Mr. Beitzel, Corporal Brendon Hall and Sergeant Ted Snyder
drove to Mr. Painter’s residence to question him about the Mazda MX-6 at approximately
11:30 a.m. According to the officers, Mr. Painter refused to admit them to his home;
however, Mr. Painter agreed to speak with them outside the home. Ms. Conner was home
at the time and aware that Mr. Painter had refused to allow police to enter the residence.
A short while after conversing with the officers, Mr. Painter willingly accompanied the
officers in their unmarked vehicle to the police station to answer further questions.

       After Mr. Painter left with the officers, Ms. Conner contacted her father, Monte
Conner, and told him that Mr. Painter was with the police and that her home was full of
property she did not believe belonged to Mr. Painter. On his daughter’s behalf, Mr.
Conner called his neighbor, Captain Dennis Streets. Mr. Conner relayed his daughter’s
concerns to Cpt. Streets, and informed Cpt. Streets that Ms. Conner would allow the
police to search her residence.

       Cpt. Streets drove to the home, and Ms. Conner gave him permission to enter. The
entry of the residence was premised on Ms. Conner’s permission; no search warrant was
ever obtained to search the residence. With the help of other officers, Cpt. Streets
collected and photographed the property Ms. Conner identified as not belonging to her or
Mr. Painter. Among other things, the officers found a red duffle bag with items appearing
to have blood on them and a dog tag bearing the name of one of the Whites. Cpt. Streets
then called Cpl. Hall, who was interrogating Mr. Painter at the police station, and
informed Cpl. Hall of his findings. Mr. Painter was placed under arrested.



                                            2

       For the death of the Whites, and the looting of the Whites’ home and the two other
homes, petitioner Wade Painter was indicted on one count of Daytime Burglary by
Entering without Breaking, one count of Grand Larceny, one count of Daytime Burglary
by Breaking and Entering, one count of Petit Larceny, two counts of First Degree
Murder, and one count of Possession of a Stolen Vehicle. Following a five-day jury trial,
Mr. Painter was convicted and sentenced on all counts. He did not receive a
recommendation of mercy on the murder convictions, and he received two life without
mercy sentences for the two murder convictions.

       Mr. Painter filed a motion requesting a new trial and a motion for judgment of
acquittal notwithstanding the verdict, arguing that the fruits of the search of his home
should have been suppressed, that the statement he gave to a particular police officer after
invoking his right to counsel should have been suppressed, and that he was entitled to a
directed verdict. These motions were denied. Mr. Painter appealed his conviction to this
Court, asserting the same three arguments he raised in his post-trial motions. By order
dated February 3, 2009, the Court refused Mr. Painter’s direct appeal.

        Through counsel, Mr. Painter filed an amended petition for habeas corpus in the
Circuit Court of Berkeley County (hereinafter “habeas court”), raising the following eight
contentions: (1) that he was subjected to an illegal seizure and arrest at his home on
September 15, 2005, and that his trial and appellate counsel were ineffective by failing to
challenge the same; (2) that his trial and appellate counsel failed to investigate, raise, and
assert that the seizure of property from his home without a warrant was illegal; (3) that
his trial and appellate counsel failed to investigate, raise, and assert that his prompt
presentment right was violated; (4) that he was denied a fair trial by the State’s improper
admission of evidence, and that his trial and appellate counsel were ineffective by failing
to challenge the admission of the evidence; (5) that he was denied a fair trial as a result of
the prosecutor and the trial judge’s improper remarks during closing arguments, and that
his appellate counsel was ineffective by failing to challenge the same on appeal; (6) that
he was denied a fair trial as a result of the State’s failure to collect, test, and/or disclose
potentially exculpatory evidence, and that the failure of his trial and appellate counsel to
challenge this behavior below constituted ineffective assistance of counsel; (7) that his
assignments of error raised in his direct appeal entitle him to relief; and (8) that the
cumulative weight of the errors within his trial warrant granting a new trial.2 The habeas

       2
          Mr. Painter’s habeas corpus petition raised a ninth contention, in which he
argued that money he is ordered to pay in restitution is being wrongfully deducted from
his inmate account. On the same day that Mr. Painter filed his petition for writ of habeas
corpus, May 23, 2014, he also filed a Motion to Amend Order of Restitution Payments
pro se. The court denied that motion by order entered on May 28, 2014, and accordingly
refused to further address the issue in the December 16, 2014, order. Mr. Painter’s
restitution issue was appealed to this Court separately from claims at issue here.

                                              3

court summarily dismissed all but the second contention in a December 16, 2014, order
without requiring the State to respond to Mr. Painter’s petition.

       The court ordered the State to file an answer to the petition on the second
contention presented therein. After receiving the State’s answer, the court dismissed the
second contention in a May 8, 2015, order without having previously held an evidentiary
hearing.

                                     II. Discussion
        Mr. Painter now appeals the denial of his habeas corpus petition to this Court. In
his two assignments of error, he argues that the habeas court committed reversible error
by summarily denying all but his second contention in its December 16, 2014, order, and
that the habeas court committed reversible error by denying his second contention in its
May 8, 2015, order. We therefore have before us on appeal two orders from the habeas
court. Our standard of review in cases involving the denial of a habeas corpus petition is
as follows:

              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 de novo review.

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

                           A. The December 16, 2014, Order
       Many of the contentions summarily dismissed in the December 16, 2014, order
contained an ineffective assistance of trial and/or counsel allegation. In State v. Miller,
194 W. Va. 3, 459 S.E.2d 114 (1995), we held:

              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.

Syl. pt. 5, id. The habeas court, in summarily dismissing some of Mr. Painter’s
ineffective assistance of counsel claims, attributed Mr. Painter’s trial counsel and
appellate counsel’s conduct to “strategy.” In so doing, the habeas court determined that
Mr. Painter’s trial and appellate counsel’s performance did not satisfy the first prong of


                                            4

the Strickland test.    The habeas court dismissed these allegations without having
received a response from the State.

       We find that an attorney’s strategy is rarely obvious from the trial or appellate
record. To establish counsel’s strategy in a habeas corpus proceeding, an evidentiary
hearing is usually necessary to provide counsel with “the opportunity to explain the
motive and reason behind his or her trial behavior.” Miller, 194 W. Va. 3, 15, 459 S.E.2d
114, 126. In most circumstances, when no evidentiary hearing has been held, conclusions
drawn regarding strategy are nothing more than mere speculation. But see Tex S. v.
Pszczolkowski, 236 W. Va. 245, 778 S.E.2d 694 (2015) (permitting dismissal without an
evidentiary hearing where counsel was deceased).

       In this appeal, we find that the record before us is silent as to Mr. Painter’s trial or
appellate counsel’s strategy. With no factual support for its conclusions regarding
strategy, the habeas court committed reversible error by making decisions based on
speculation. We therefore reverse the December 16, 2014, order and remand this case for
the court to conduct an evidentiary hearing to examine Mr. Painter’s ineffective
assistance of counsel claims. See W. Va. Code § 53-4A-7(a) (providing for an evidentiary
hearing in which the court can “take evidence on the contention or contentions and
grounds (in fact or law) advanced”). We also direct the habeas court on remand to order
the State to file an answer to Mr. Painter’s petition for writ of habeas corpus in
accordance with Rule 4(d) of the Rules Governing Post-Conviction Habeas Corpus
Proceedings in West Virginia.

                               B. The May 8, 2015, Order
       On one of Mr. Painter’s contentions, however, the State did file an answer. This
contention was considered in the habeas court’s ruling of May 8, 2015, and involved Mr.
Painter’s claim that his trial and appellate counsel were ineffective by failing to
investigate, raise, and assert that the seizure of a bags found in his home was
unconstitutional.3 The circuit court, in dismissing this claim without holding an
evidentiary hearing, determined that because Mr. Painter did not establish that the seizure
of the bags was unconstitutional, he could not establish that his trial and appellate counsel
were ineffective.

       As we established supra, ineffective assistance of counsel claims are evaluated
using the Strickland test. See syl. pt. 5, Miller, 194 W. Va. 3, 459 S.E.2d 114. The second
prong of the test involves an evaluation of the prejudice caused by counsel’s conduct. In

       3
         Mr. Painter alleged that the seizure violated his Fourth Amendment rights. The
Fourth Amendment to the United States Constitution provides, “The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .”

                                              5

this case, if there is no merit to Mr. Painter’s contention that the seizure of the bags was
unconstitutional, then Mr. Painter’s ineffective assistance of counsel claims must fail
inasmuch as he would not be able to satisfy the prejudice prong of the Strickland test.

        We determine that the circuit court correctly concluded that there was no merit to
Mr. Painter’s contention that the seizure of the bags was unconstitutional. The search
leading to the seizure of the bags is similar to the search and seizure sanctioned by the
United States Supreme Court in Fernandez v. California, ___ U.S. ___, 134 S. Ct. 1126
(2014). In Fernandez, police officers, while investigating an assault, arrived at the home
of the defendant and his girlfriend, and knocked on the door. Id. at 1130. After the
girlfriend answered the door, the defendant “stepped forward and said, ‘You don’t have
any right to come in here. I know my rights.’” Id. (internal quotation marks omitted).
“Suspecting that [the defendant] had assaulted [his girlfriend], the officers removed him
from the apartment and then placed him under arrest.” Id. He was taken to the police
station for booking. Id. About an hour after the defendant was arrested, the police
returned to the home and asked the girlfriend for permission to enter. Id. The girlfriend
gave oral and written consent for the police to enter and search. Id. During the search,
police found evidence that was later used against the defendant, over his objection,
during his criminal trial. Id. at 1130–31.

       On appeal, the defendant argued that this evidence should have been suppressed
under Georgia v. Randolph, 547 U.S. 103 (2006). Fernandez, 134 S. Ct. at 1131. In
Randolph, the U.S. Supreme Court held that where co-occupants of a residence are both
present and one objects to a search while the other consents, the consent of one occupant
is insufficient to allow police to conduct a search. Id. at 106. The Fernandez court
distinguished the case before it from Randolph, stating, “Our opinion in Randolph took
great pains to emphasize that its holding was limited to situations in which the objecting
occupant is physically present.” Fernandez, 134 S. Ct. at 1130. The U.S. Supreme Court
rejected the defendant’s argument that “his objection, made at the threshold of the
premises that the police wanted to search, remained effective until he changed his mind
and withdrew his objection.” Id. at 1135. The U.S. Supreme Court refused to extend
Randolph in Fernandez, holding that “where consent was provided by an abused woman
well after her male partner had been removed from the apartment they shared,” the search
and seizure did not violate the Fourth Amendment. Id. at 1130.

       In this case, Mr. Painter denied police access to a home in which he cohabitated
with Ms. Conner. After he left the home, however, Ms. Conner’s father contacted the
police on her behalf and requested that they enter into and search the residence. Pursuant
to Fernandez, Ms. Conner had the authority to consent to the search of her home.
Therefore, the searches and seizures were constitutional. Because there is no merit to the
contention that the seizure of the bags was unconstitutional, Mr. Painter has failed to
establish that his trial and appellate counsel were ineffective with regard to this specific
issue.
                                             6

                                      III. Conclusion
      In conclusion, we reverse the habeas court’s December 16, 2014, order. We
remand for the habeas court to order the State to file an answer to Mr. Painter’s habeas
corpus petition and for the habeas court to hold an evidentiary hearing to take evidence in
on Mr. Painter’s ineffective assistance of counsel claims. Because we find no error in the
habeas court’s decision in its May 8, 2015, order, we affirm that order.

                         Affirmed in part, reversed in part, and remanded with directions.


ISSUED: June 15, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin

CONCURRING IN PART AND DISSENTING IN PART:

Justice Margaret L. Workman
Justice Allen H. Loughry II


Workman, J., joined by Loughry, J., concurring in part and dissenting in part:

              I concur in the majority’s affirmance of the May 8, 2015, order regarding
the seizure of the bags found in petitioner’s home. I likewise concur in the majority’s
reversal and remand for an evidentiary hearing with regard to petitioner’s ineffective
assistance of counsel claims associated with purportedly inadmissible Rule 404(b)
evidence and improper prosecutorial remarks. To the extent, however, that the majority
opinion purports to remand on the entirety of petitioner’s ineffective assistance of counsel
claims, I respectfully dissent. With respect to all but the Rule 404(b) and prosecutorial
remarks issues, the lower court properly demonstrated through adequate analysis that
such claims were lacking in substantial merit and therefore properly summarily
dismissed. With respect to the alleged 404(b) evidentiary errors and prosecutorial
remarks, I write separately to more fully articulate the error in the habeas court’s
handling of these claims and to highlight the majority’s failure to fully grasp the limited
issue presented, resulting in a remand which is overbroad.

             First, to clarify the narrowness of the issue before the Court, petitioner
assigned as error 1) the habeas court’s substantive ruling on his “fruit of the poisonous
                                             7

tree” contention; and 2) the habeas court’s refusal to grant petitioner an evidentiary
hearing and require a response from the State, on the remainder of his habeas contentions.
The latter assignment of error, then, raises only the propriety of the habeas court’s
summary dismissal of his habeas petition.4 In viewing the propriety of summary dismissal
of the habeas petitions, we have long held that “[a] court having jurisdiction over habeas
corpus proceedings may deny a petition for a writ of habeas corpus without a hearing . . .
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). I agree wholeheartedly that where a
habeas court is able to view the record and demonstrate that a claim lacks substantial
merit, it may properly summarily dismiss.

              With regard to all but the 404(b) and prosecutorial errors, the habeas court
below engaged in analysis of the alleged legal errors giving rise to the ineffective
assistance of counsel claims concluding that no error occurred; therefore, no ineffective
assistance was rendered.5 In this regard, the habeas court demonstrated that such claims
lacked substantial merit and were therefore appropriate for summary dismissal. The
majority fails entirely to acknowledge and address this analysis, broadly remanding for
what would appear to be any claim couched in ineffective assistance of counsel,
regardless of whether the habeas court has already properly determined that no error
occurred. The majority fails to individually examine these habeas contentions to
ascertain the sole issue presented—whether the habeas court demonstrated that the claim
was sufficiently lacking in merit as to render it susceptible to summary dismissal without
a hearing.

              In contrast however, with respect to the 404(b) and prosecutorial remarks,
the habeas court did not address in any legally sufficient manner whether or not any error
occurred in the first instance. Nowhere is there a discussion of Rule 404(b), the
exceptions thereto, etc. Rather, the habeas court, unlike its handling of the other
contentions, resorted to pure speculation to attempt to demonstrate merely that counsel
was not ineffective with respect to this evidence. The habeas court repeatedly referenced

4
  Indeed, petitioner does not substantively argue the merits of his underlying habeas contentions,
rather, he properly sets forth only enough discussion to argue that there was probable cause for
an evidentiary hearing.
5
  Although it is somewhat difficult to discern from the record, it appears some of petitioner’s
habeas contentions claim both constitutional deprivations warranting habeas relief in and of
themselves and ineffective assistance of trial and/or appellate counsel claims associated with
those deprivations. The majority opinion, in remanding only on the “ineffective assistance of
counsel” claims, fails to speak to whether any habeas claims not based on ineffective assistance
of counsel were properly summarily dismissed.


                                                8

the “strategic” nature of trial counsel’s failure to object and appellate counsel’s failure to
appeal a litany of what petitioner claims was inadmissible 404(b) evidence. Having taken
no evidence from either trial or appellate counsel, the habeas court provided no basis
upon which to conclude that such omissions were due to strategy.6 As such, the habeas
court’s dismissal of these claims was not based on the “petition, exhibits, affidavits or
other documentary evidence,” and lacked any rational support.7 This was unquestionably
an insufficient basis upon which to rest a summary dismissal. Therefore, with respect to
these claims, reversal and remand is proper and conforms to the contours of the
assignment of error placed before this Court.

                To whatever extent petitioner seeks to assert that the allegedly improper
admission of this evidence itself was tantamount to a constitutional deprivation, see n.2,
supra, he has presented little argument in that regard. Aside from a rote incantation and
reference to “due process of law and a fair trial,” petitioner makes no attempt to explain
how these purported trial errors were so egregious and pervasive such as to contaminate
the entire trial.8 Therefore, it bears reiteration that “[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.” Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W. Va.
129, 254 S.E.2d 805 (1979). Moreover, evidentiary rulings are almost without exception
deemed ordinary trial error; only in the rarest circumstances when such rulings are so
egregious as to render the entire trial unfair are they cognizable in habeas. “State court
evidentiary rulings respecting the admission of evidence are cognizable in habeas corpus

6
    The habeas court’s order includes such statements as:

“[A]ppellate counsel may not have found such an argument to be convincing or worth the

Supreme Court’s time.”

“This would not have been a good argument to make on appeal and appellate counsel clearly

presented a tailored petition that would give his client the best chance for appeal.”

“In this instance, trial counsel strategically chose to make a more effective request [than

objecting].”

7
  The habeas court further made such curiously inaccurate statements in its order as “Such a
decision is precisely the type of strategy decision that this Court cannot review in a habeas
proceeding” and “[T]his Court cannot review the strategy decision of counsel in the instant
habeas proceeding.” The habeas court also appeared to laboring under a misapprehension that if
trial counsel did not object, appellate counsel could not assert error on appeal.
8
  Simply raising the specter of an “unfair trial” via evidentiary errors is insufficient to elevate
trial error to one of constitutional dimension. There is scarcely a defendant who would not
suggest that any trial error of any degree did not result in “unfairness.” It is incumbent upon the
courts to distinguish this contention from a constitutional deprivation worthy of habeas
consideration.

                                                  9

only to the extent they violate specific constitutional provisions or are so egregious as to
render the entire trial fundamentally unfair and thereby violate due process under the
Fourteenth Amendment.” Hatcher v. McBride, 221 W. Va. 5, 11, 650 S.E.2d 104, 110
(2006) (citing Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L.Ed.2d 385 (1991)).
Moreover, “[a]bsent ‘circumstances impugning fundamental fairness or infringing
specific constitutional protections,’ admissibility of evidence does not present a state or
federal constitutional question.” Id. (quoting Grundler v. North Carolina, 283 F.2d 798,
802 (4th Cir.1960)); see also Hilling v. Nohe, 2013 WL 3185089, *5 (W. Va. June 24,
2013) (memorandum decision) (“Pre-trial and evidentiary rulings fall within the gambit
of ordinary trial error.”).

               However, to the extent that petitioner’s claims of evidentiary error are
intended to simply form the foundation of an ineffective assistance of counsel claim, as
indicated above, the habeas court engaged in no legal analysis of whether such evidence
was even error as it did with the other claims. More importantly, it took no testimony
regarding trial or appellate counsel’s handling of the purported trial errors, speculating
wildly about why counsel did or did not object or appeal. Much as this Court has
repeatedly noted that ineffective assistance of counsel claims are not reviewable upon
direct appeal, it would be the rare circumstance when the habeas court could make such
conclusions based upon the bare trial record. See State v. Miller, 194 W. Va. 3, 14-15,
459 S.E.2d 114, 125-26 (1995) (“In cases involving ineffective assistance on direct
appeals, intelligent review is rendered impossible because the most significant witness,
the trial attorney, has not been given the opportunity to explain the motive and reason
behind his or her trial behavior.”).

              Therefore, I concur in the majority’s reversal and remand for a hearing on
the ineffective assistance of counsel claims based upon the admission of allegedly
improper 404(b) evidence and prosecutorial remarks. Reversal and remand in this
instance is proper because, within the confines of the issue on appeal, the habeas court
failed to demonstrate that such claims were lacking in merit and therefore proper for
summary dismissal. However, with respect to the remaining habeas claims to which
ineffective assistance of counsel was attached, the habeas court properly demonstrated in
its order that such claims lacked merit and were susceptible to summary dismissal.
Accordingly, I respectfully concur in part and dissent in part.




                                            10

