                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Robert Edward Gura,                                                                 FILED
Petitioner Below, Petitioner                                                    March 13, 2020
                                                                               EDYTHE NASH GAISER, CLERK
vs.) No. 18-1088 (Ohio County 08-F-101)                                        SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Charles Williams, Superintendent,
Huttonsville Correctional Center,
Respondent Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Robert Edward Gura, by counsel Jeremy B. Cooper, appeals the Circuit Court
of Ohio County’s November 15, 2018, order denying his petition for a writ of habeas corpus.
Respondent Charles Williams, Superintendent, by counsel Scott E. Johnson, filed a response.1
On appeal, petitioner argues that the circuit court erred in failing to hold an evidentiary hearing
and allocate funds to him for the hiring of an expert. Petitioner also argues that the circuit court
lacked jurisdiction over the habeas proceeding because the circuit clerk failed to assign the
matter a civil case number.

        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.


       1
         Effective July 1, 2018, the positions formerly designated as “wardens” are now
designated “superintendents.” See W. Va. Code § 15A-5-3. Further, petitioner originally listed
Karen Pszczokowski, the superintendent of Northern Correctional Facility, as respondent in this
matter. However, petitioner has since been transferred to Huttonsville Correctional Center, where
Charles Williams is the current superintendent. As such, the appropriate public officer has been
substituted in accordance with Rule 41 of the Rules of Appellate Procedure.



                                                 1
         In May of 2008, petitioner, his wife, and Ms. Buchanan (“the victim”) began drinking
beer at petitioner’s apartment. Following an argument with the victim, petitioner took a kitchen
knife and attempted to slit her throat, only cutting her in the process. Petitioner then stabbed the
victim in the chest and prevented her from calling police for approximately one hour afterwards.2
Petitioner was arrested and, in September of 2008, was indicted on one count of malicious
assault, one count of attempted murder, one count of assault during the commission of a felony,
and one count of first-degree robbery. Due to petitioner’s use of alcohol and prescribed
medication at the time of the crimes, petitioner’s counsel requested an evaluation of petitioner’s
competency and criminal responsibility.3 Dr. Thomas R. Adamski performed the evaluation of
petitioner in December of 2008. Dr. Adamksi concluded that petitioner was competent to stand
trial and that he was able to appreciate the wrongfulness of his behaviors and could have
conformed his conduct to the requirement of the law. Specifically, Dr. Adamski noted that
although petitioner claimed he did not remember his argument with the victim, he did remember
“politely” asking her to leave his home. Further, petitioner allegedly instructed the victim not to
tell first responders that he stabbed her, implying that he had the capacity for knowledge of
wrongfulness. Dr. Adamski also noted that petitioner’s acts were not the product of psychosis or
delusion. Following receipt of the report, petitioner’s counsel advised the trial court that he did
not find anything “that would serve as a basis to move this case on any other track in terms of
either lack of competency or lack of culpability.”

        Petitioner’s trial commenced in May of 2009. The State presented the testimony of the
victim, who testified that petitioner attacked her after she offered him $5 to purchase cigarettes
after previously claiming she had no money to buy another case of beer. Petitioner accused the
victim of lying about not having money, demanded that she give him the $5, and ordered her to
leave. The victim went to put on her shoes and leave, but refused to give petitioner $5. The
victim testified that at that point, petitioner went into the kitchen and came back with a knife,
which he put to her throat and said, “[d]ie, bitch.” Petitioner then began to pull the blade along
the victim’s throat. The victim was able to push the blade away, only receiving a gash in her
neck and her finger. However, the force spun the victim around so that she was facing petitioner,
who then plunged the knife into her chest. According to the victim, petitioner then pulled the
knife out of her chest and said, “[f]*ck, I’m going to prison.” Petitioner forced the victim to
remain in the bathroom for an hour before eventually permitting her to call 9-1-1. However,
petitioner threatened the victim and instructed her to say she did not know who stabbed her.
Nonetheless, when police arrived, the victim disclosed that petitioner had been the one to stab
her.



        2
            Petitioner eventually allowed the victim to call 9-1-1, and the victim survived her
injuries.

       Testimony at trial revealed that petitioner, the victim, and petitioner’s wife consumed
        3

between two to three cases of beer on the night of the crime.



                                                 2
         The State also presented the testimony of law enforcement officers. A police officer
testified that upon arriving at petitioner’s residence, petitioner was able to communicate with him
“[v]ery well” and was able to walk without assistance. Further, petitioner was able to coherently
respond to the magistrate while being arraigned. It was the police officer’s opinion that petitioner
was able to comprehend what was occurring. A second police officer testified that he read
petitioner his Miranda rights and confirmed that petitioner understood them.4 Petitioner
responded coherently to the officer’s booking inquiries.

        Petitioner presented the testimony of his wife, Ms. Gura. Ms. Gura testified that
petitioner was intoxicated on the night of the incident, but was able to speak normally during the
course of events, was making sense, and was coherent. Ms. Gura agreed that petitioner was able
to walk down stairs and did not fall. Ms. Gura also testified that petitioner did stab the victim,
but not over $5. Rather, Ms. Gura testified that petitioner stabbed the victim because she refused
to leave his home.

       Following the close of evidence, petitioner’s counsel requested an instruction on
voluntary intoxication. The trial court stated

       And the question is whether there’s evidence to support [petitioner’s] theory that
       his intoxication at the time of the crime was such that he was unable to formulate
       the requisite intent to commit a specific-intent crime; it is error for the trial Court
       to refuse to give a proper instruction presenting such a theory when requested to
       do so.

                 ....

       So the real question is: Is there evidence in this case that [petitioner] was so
       intoxicated to the level that is required under West Virginia law to give that
       instruction? I’ve listened very carefully to all the evidence. And while you have
       testimony that quantitatively there was a considerable amount of beer consumed,
       but that of and in itself doesn’t establish that he was intoxicated. Depends on the
       individual. Ms. Gura testified, in her opinion, he was. We have substantial
       evidence to the contrary, primarily evidence that he was not impaired in any way.
       Speech was not slurred, went down to the police department, cooperated with
       them. His gait was not impaired; he walked down the steps. All in all, I don’t
       believe there is sufficient evidence in this case to justify giving any instruction on
       intoxication.

Accordingly, the trial court denied petitioner’s requested voluntary intoxication instruction. After
deliberations, the jury acquitted petitioner of the first-degree robbery charge, but found him



       4
           Miranda v. Arizona, 384 U.S. 436 (1966).


                                                 3
guilty of the remaining charges. Following trial, the State filed a recidivist information against
petitioner.

       At a sentencing hearing held in June of 2009, the trial court sentenced petitioner to life
with mercy for the attempted murder conviction, not less than two nor more than ten years of
incarceration for the malicious assault conviction, and not less than two nor more than ten years
of incarceration for the assault during the commission of a felony conviction. The trial court
ordered that the sentences run consecutively. This Court refused petitioner’s subsequent petition
for appeal.

         The circuit court appointed petitioner counsel to pursue habeas corpus relief in July of
2010. After various counsel were appointed and withdrew from the case, petitioner, by counsel,
filed a petition for a writ of habeas corpus in November of 2015. Relevant to this appeal,
petitioner raised grounds regarding mental competency at the time of the crime, instructions to
the jury, and ineffective assistance of counsel related to those claims. In September of 2016,
petitioner filed a motion requesting funds to hire an expert. Specifically, petitioner wanted to hire
Bobby A. Miller, M.D., “to evaluate him and issue a report concerning diminished capacity as of
the time of the alleged offense and/or any other pertinent issues involving mental capacity.”
Petitioner also moved the habeas court to relocate him to Western Regional Jail to undergo the
evaluation. After receiving respondent’s response and petitioner’s reply, the habeas court denied
the motion in January of 2018. Specifically, the habeas court found that petitioner had already
been evaluated by Dr. Adamski prior to trial and failed to cite any case law that would entitle
him to another evaluation almost eight years after his trial. The habeas court further found that
the trial court properly addressed petitioner’s request for instructions.

        In February of 2018, petitioner filed another motion requesting funds to hire an expert
regarding his ineffective assistance of counsel claim. The habeas court denied petitioner’s
motion requesting funds to hire an expert regarding his ineffective assistance of counsel claim
and denied his petition for writ of habeas corpus later in February of 2018. The habeas court
found that the trial court had properly reviewed the case law and the evidence concerning
voluntary intoxication and determined that a diminished capacity instruction was not warranted.
The habeas court concurred with the opinion and further found that even if an expert opined that
petitioner had a diminished capacity at the time of the stabbing, there was other testimony and
evidence regarding petitioner’s actions that would have contradicted the expert’s testimony.
Regarding petitioner’s claim that his counsel was ineffective for failing to hire an expert to speak
to his diminished capacity at trial, the habeas court found that petitioner failed to prove that, but
for this alleged failure, the result would have been different. Moreover, regarding his request to
hire an expert for the habeas proceedings, the habeas court found that petitioner failed to advance
any law in support of appropriating funds to hire an expert witness for his ineffective assistance
of counsel claims. Accordingly, the habeas court concluded that petitioner failed to advance any




                                                 4
issues or law that are cognizable in habeas proceedings, or that were of constitutional magnitude,
and found that petitioner could not satisfy the second prong of the Strickland/Miller test.5

        For unknown reasons, counsel for petitioner did not receive a copy of the order until
August of 2018. As such, he requested that the habeas court re-enter the final order for appeal
purposes. The habeas court re-entered the final order on November 15, 2018. It is from this order
that petitioner appeals.

       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).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

        On appeal, petitioner first assigns as error the habeas court’s failure to hold an
“evidentiary hearing on numerous factual questions, including expert testimony that was
necessary to determine whether [petitioner] had a valid diminished capacity defense that was
unreasonably and prejudicially abandoned by his trial counsel.” Essentially, petitioner sets forth
two arguments in support. First, he contends the habeas court erred in denying his requests for
funds to hire an expert witness regarding his claims of diminished capacity at the time the crime
was committed and ineffective assistance of counsel. Second, petitioner claims that the habeas
court should have held an evidentiary hearing to present evidence regarding his claims of
ineffective assistance of counsel. According to petitioner, the habeas court was without sufficient
information on a material issue regarding his habeas claims and that expert testimony was
necessary to make a determination. Upon our review, we find that petitioner is not entitled to
relief.

        First, we find no merit in petitioner’s claims that the habeas court erred in refusing to
appropriate funds to allow petitioner to hire expert witnesses during the habeas proceedings.
Petitioner fails to cite to any law that entitles him to use expert witnesses during habeas
proceedings, let alone any law that requires the habeas court to provide the funds to do so.
Indeed, the only case that petitioner cites in support of his argument is a memorandum decision
noting that indigent criminal defendants are entitled to public funds to retain expert witnesses in
their defense at trial. See State v. Strawser, No. 16-1039, 2017 WL 5513617 (W. Va. Nov. 17,

       5
        See Strickland v. Washington, 466 U.S. 668 (1984); State v. Miller, 194 W. Va. 3, 459
S.E.2d 114 (1995).


                                                5
2017)(memorandum decision). Given that petitioner argues that he should have been allowed to
present expert testimony at the habeas proceedings, this case does not support his argument. Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure requires that

       [t]he brief must contain an argument exhibiting clearly the points of fact and law
       presented, the standard of review applicable, and citing the authorities relied on . .
       . [and] must contain appropriate and specific citations to the record on appeal. . . .
       The Court may disregard errors that are not adequately supported by specific
       references to the record on appeal.

Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, the Court specifically noted that “[b]riefs that
lack citation of authority [or] fail to structure an argument applying applicable law” are not in
compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a
citation to legal authority to support the argument presented and do not ‘contain appropriate and
specific citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance
with this Court’s rules. Accordingly, we decline to find error here.

        We likewise find no merit in petitioner’s argument that the habeas court erred in failing
to hold an evidentiary hearing on his habeas claims. We have previously noted that

       [i]t is evident from a reading of W.Va. Code § 53-4A-7(a) that a petitioner for
       habeas corpus relief is not entitled, as a matter of right, to a full evidentiary
       hearing in every proceeding instituted under the provisions of the post-conviction
       habeas corpus act. . . . A hearing is required only “[i]f it appears to the court . . .
       that there is probable cause to believe that the petitioner may be entitled to some
       relief and that the contention or contentions and grounds (in fact or law) advanced
       have not been previously and finally adjudicated or waived.” Even in such
       circumstances, there is no requirement that a full evidentiary hearing be
       conducted.

Gibson v. Dale, 173 W. Va. 681, 688, 319 S.E.2d 806, 813 (1984) (footnote omitted). The
decision to hold a hearing rests in the “sound discretion” of the circuit court. Tex S. v.
Pszczolkowski, 236 W. Va. 245, 253, 778 S.E.2d 694, 702 (2015) (citation omitted). Specifically,

       [i]f the facts were sufficiently developed at or before trial so that the court can
       rule on the issue presented without further factual development, the court may, in
       its discretion, decline to conduct an evidentiary hearing during the habeas
       proceeding and may rule on the merits of the issues by reference to the facts
       demonstrated on the record.

Gibson, 173 W. Va. at 689, 319 S.E.2d at 814.

       Here, petitioner contends that his counsel was ineffective for failing to fully pursue a
diminished capacity defense at trial and an evidentiary hearing was necessary for the habeas

                                                 6
court to decide that issue. Although petitioner’s trial counsel sought to include an instruction on
diminished capacity, or voluntary intoxication, petitioner contends that his counsel was
ineffective in failing to present expert testimony at trial regarding this issue. According to
petitioner, the two prongs of Strickland/Miller are easily met given that he was prejudiced by his
counsel’s failure to present a diminished capacity defense and that there was a reasonable
probability that, had his counsel presented such a defense, he could have been convicted of a
lesser-included offense.

       In Syllabus Point 5 of 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.

“Failure to meet the burden of proof imposed by either part of the Strickland/Miller test is fatal
to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W.
Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citing State ex rel. Daniel v. Legursky, 195 W. Va. 314,
321, 465 S.E.2d 416, 423 (1995)).

        Contrary to petitioner’s claims, the habeas court had a sufficient factual basis to deny
petitioner habeas relief regarding his claim of ineffective assistance of counsel without holding a
hearing. The record demonstrates that prior to petitioner’s trial, his counsel requested an
evaluation to ascertain petitioner’s competency to stand trial and criminal responsibility.
Counsel’s motion requesting the evaluation noted that petitioner had a history of alcohol and
substance abuse and was “highly intoxicated” at the time of the incident. The trial court granted
the motion, and Dr. Adamski performed the evaluation. In his report, Dr. Adamski noted that the
issue was to “determine whether or not a mental illness, mental retardation, or addiction have so
affected” petitioner such that he was unable to appreciate the charges against him and participate
in his defense, as well as to determine whether he was able to appreciate the wrongfulness of his
behavior at the time of the crime. (Emphasis added). Dr. Adamski made several references to the
fact that petitioner had been drinking on the night of the incident, had consumed Depakote for
his bipolar disorder on the night of the incident, and was an alcoholic. Dr. Adamksi concluded
that petitioner was competent to stand trial and that he was able to appreciate the wrongfulness of
his behaviors and could have conformed his conduct to the requirements of the law, specifically
relying on petitioner’s memories of the night, which indicated he remembered the incident better
than he claimed and also appreciated the wrongfulness of his actions. Dr. Adamski also noted
that petitioner’s acts were not the product of psychosis or delusion. Following receipt of the
report, petitioner’s counsel advised the trial court that he did not find anything “that would serve
as a basis to move this case on any other track in terms of either lack of competency or lack of
culpability.” Nevertheless, petitioner’s counsel requested a diminished capacity instruction on
the basis of his voluntary intoxication.


                                                 7
        In denying petitioner’s claim, the habeas court affirmed the trial court’s determination
that a diminished capacity instruction was not supported by the evidence. The habeas court noted
that testimony at trial established that petitioner was coherent, communicated clearly, and
responded to questions by police and the magistrate. Further, petitioner was able to walk down
stairs and did not sway or fall. The habeas court determined that, even if petitioner’s trial counsel
had acquired expert testimony regarding petitioner’s diminished capacity due to voluntary
intoxication, the overwhelming evidence to the contrary would not have changed the result.

         Petitioner fails to establish that he is entitled to relief under either prong of
Strickland/Miller. First, petitioner fails to establish that his counsel’s performance was defective
under an objective standard of reasonableness. Petitioner’s counsel requested an evaluation
regarding his criminal responsibility due to his consumption of alcohol on the night of the
incident. As noted above, Dr. Adamski clearly considered these facts in rendering his decision.
Following receipt of the report, petitioner’s counsel determined that there was no viable “track”
to take regarding lack of culpability. Nevertheless, petitioner’s counsel requested an instruction
regarding diminished capacity due to his voluntary intoxication. While petitioner claims that his
trial counsel should have acquired another expert, he fails to explain what information the expert
could have provided in addition to Dr. Adamski’s report that would have changed the result
below. Here, petitioner’s counsel took adequate steps to protect any defense resulting from
petitioner’s intoxication. That his counsel was unsuccessful in acquiring an instruction on the
matter does not prove that his assistance was ineffective. Accordingly, we find that petitioner
fails to satisfy the first prong of Strickland/Miller.

         While this failure is fatal to petitioner’s claim, we nevertheless address the second prong
of Strickland/Miller. Petitioner likewise fails to prove that there was a reasonable probability
that, but for trial counsel’s ineffective assistance, the result would have been different. As the
habeas court noted, substantial evidence was presented that petitioner was not so intoxicated as
to suggest he was not criminally responsible. The habeas court determined that, even if trial
counsel had presented another expert regarding petitioner’s intoxication, the result likely would
not have been different. Moreover, petitioner’s claims that he could have been convicted of a
lesser-included offense are purely speculative. As such, we find that petitioner failed to satisfy
the second prong of Strickland/Miller, and therefore, his entire claim regarding ineffective
assistance of counsel fails. Moreover, because “the facts were sufficiently developed at or before
trial,” the habeas court was within its discretion to deny petitioner’s claim without holding an
evidentiary hearing. Gibson, 173 W. Va. at 689, 319 S.E.2d at 814. Accordingly, we find no
error.6

       6
         In support of his argument, petitioner claims that the habeas court erred in finding that
he failed to advance any issues of constitutional magnitude. Petitioner contends this finding is
erroneous given that both his right to hire an expert and his ineffective assistance of counsel
claim are of constitutional magnitude. However, the circuit court’s finding in its entirety reads
that “[p]etitioner has not advanced any issues or law that are cognizable in a [h]abeas corpus
[p]etition, or are of constitutional magnitude, and cannot satisfy the second prong of

                                                                                    (continued . . .)
                                                 8
        Petitioner next assigns as error the habeas court’s lack of jurisdiction. According to
petitioner, his “post-conviction habeas proceeding has been entirely conducted in the context of a
felony case.” Petitioner contends that his habeas case was conducted under his criminal
proceeding case number and that he was not assigned a new civil case number. As such, the
habeas court “presented its orders in the context of a criminal matter, in clear violation of
statute” and “those orders are void.” We disagree.

       Petitioner correctly notes that West Virginia Code § 53-4A-1 provides that

       [a]ny such [habeas] petition shall be filed with the clerk of the Supreme Court of
       Appeals, or the clerk of any circuit court, said Supreme Court of Appeals and all
       circuit courts of this state having been granted original jurisdiction in habeas
       corpus cases by the Constitution of this state, or with the clerk of any court of
       record of limited jurisdiction having criminal jurisdiction in this state. Jurisdiction
       is hereby conferred upon each and every such court of record of limited
       jurisdiction having criminal jurisdiction (hereinafter for convenience of reference
       referred to simply as a “statutory court”) to refuse or grant writs of habeas corpus
       ad subjiciendum in accordance with the provisions of this article and to hear and
       determine any contention or contentions and to pass upon all grounds in fact or
       law relied upon in support thereof in any proceeding on any such writ made
       returnable thereto in accordance with the provisions of this article. All
       proceedings in accordance with this article shall be civil in character and shall
       under no circumstances be regarded as criminal proceedings or a criminal case.

(Emphasis added). While it is true that the statute provides that habeas proceedings shall not be
regarded as criminal proceedings, there is no evidence suggesting that the habeas court treated
the underlying matter as a criminal proceeding in any way. Contrary to petitioner’s claim that the
habeas court “deprived itself of jurisdiction” by failing to assign the case its own civil number,
the record is clear that this was simply an overlooked clerical error. The habeas court did not
apply inapplicable criminal standards in this habeas proceeding at any point. The fact that the
habeas court simply proceeded under a criminal case number did not convert the habeas
proceedings into criminal proceedings, nor did it revoke the habeas court’s jurisdiction. As such,
petitioner is entitled to no relief in this regard.



Strickland/Miller to wit: there is a reasonable probability that the result would have been
different.” As such, it is clear that the habeas court applied the applicable law in regard to
petitioner’s claim of ineffective assistance of counsel and did not dismiss the matter based on its
lack of “constitutional magnitude.” Moreover, as shown above, petitioner fails to demonstrate
that he is entitled to relief under either of these arguments. As such, if any error occurred, it was
harmless given petitioner’s failure to show that he was entitled to relief and the finding is
ultimately irrelevant to the issues on appeal.


                                                 9
       For the foregoing reasons, we affirm the circuit court’s November 15, 2018, order
denying petitioner’s petition for a writ of habeas corpus.

                                                                               Affirmed.

ISSUED: March 13, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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