                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Larry S. White II,                                                                  FILED
Petitioner Below, Petitioner                                                   November 23, 2015
                                                                               RORY L. PERRY II, CLERK
vs) No. 14-1272 (Jackson County 11-C-29)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Marvin Plumley, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Larry S. White II, by counsel Shawn D. Bayliss, appeals the Circuit Court of
Jackson County’s October 28, 2014, order denying his petition for writ of habeas corpus.
Respondent Marvin Plumley, Warden, by counsel Benjamin F. Yancey III, filed a response. On
appeal, petitioner alleges that the circuit court erred in denying his habeas petition because he
established that he was entitled to relief based upon the State’s suppression of exculpatory
evidence, the State’s use of illegally obtained evidence, and that he was denied the right to
effective assistance of counsel.

        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 February of 2008, petitioner and his co-defendant were each indicted on one count of
first-degree murder and one count of conspiracy to commit first-degree murder for the death of
Mohamed Mahmoud A. Mahrous (“the victim”).1 Following trial, the jury found petitioner guilty
of both felonies and recommended mercy for the murder charge. Thereafter, in December of
2008, petitioner filed a motion for new a trial which was denied by the circuit court. The circuit
court then sentenced petitioner to life with mercy for the charge of first-degree murder, and a
term of not less than one year nor more than five years for the conspiracy charge. The two
sentences were ordered to be served consecutively.

        In July of 2009, petitioner filed an “Amended Renewed Motion for New Trial” alleging
that the State failed to disclose court records from North Carolina that documented the issuance
of domestic violence protective orders against the victim concerning petitioner’s co-defendant, in
violation of Brady v. Maryland, 373 U.S. 83 (1963) and State v. Youngblood, 221 W.Va. 20, 650

       1
           This victim was the co-defendant’s husband.
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S.E.2d 119 (2007). Several days later the circuit court held a hearing on petitioner’s motion and
denied petitioner relief.

        In February of 2010, petitioner filed a direct appeal with this Court asserting that the
circuit court committed the following errors: (1) failing to grant his motions to strike two
prospective jurors; (2) convicting him upon insufficient evidence; (3) admitting evidence that
was the fruit of an unlawful search of a cellular telephone; (4) admitting certain out-of-court
statements under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence; and (5) refusing to
grant his “Amended Renewed Motion for New Trial” based upon alleged violations of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court held oral argument on
January 12, 2011, pursuant to Rule 20 of the Rules of Appellate Procedure. By order submitted
February 10, 2011, this Court affirmed the judgment finding petitioner guilty of one count of
first-degree murder and one count of conspiracy to commit a felony, and sentencing him to life
with mercy for the first-degree murder conviction, and a consecutive sentence of one to five
years for the conspiracy. See State v. White, 227 W.Va. 231, 707 S.E.2d 841 (2011) (Davis, J.),
republished as, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011).

        In March of 2011, petitioner, pro se, filed his first petition for writ of habeas corpus in
circuit court. Thereafter in January of 2014, the circuit court appointed petitioner counsel and
filed an amended petition for writ of habeas corpus alleging the following grounds for relief: 1)
ineffective assistance of counsel; 2) pre-trial publicity; 3) consecutive sentences; 4) coerced
confession; 5) suppression of helpful evidence by the prosecutor (Brady violation); 6) challenges
to the composition or procedure of the grand jury; 7) refusal to subpoena witnesses (ineffective
counsel); 8) evidentiary rulings regarding his renewed motion for a new trial; 9) prejudicial
statements by the trial judge; 10) prejudicial statements by the prosecutor; 11) sufficiency of the
evidence; 12) more severe sentence than expected; 13) excessive sentence; 14) impaired counsel
(ineffective counsel); and 15) rate of compensation for counsel. In August of 2014, petitioner
filed a motion to continue and a motion for leave to amend his amended petition for writ of
habeas corpus asserting that Riley v. California, 134 S.Ct. 2473 (2014), may apply to his case.2
The circuit court then held an omnibus evidentiary hearing, after which it denied petitioner
habeas relief. 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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

       2
        The circuit court noted in its final order that it did not formally rule on petitioner’s
motion, but directed the parties to address the issues raised in Riley in the proposed orders.
                                                2


        On appeal to this Court, petitioner reasserts his claims that the circuit court erred in
denying him habeas relief based on the State’s suppression of exculpatory evidence, in violation
of Brady and Youngblood; that the circuit court further erred in allowing the State’s use of
illegally obtained evidence, in violation of Riley; and that he was denied the right to the effective
assistance of counsel. The Court, however, does not agree. Upon our review and consideration of
the circuit court’s order, the parties’ arguments, and the record submitted on appeal, 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 forty-five paged 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 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 October 28, 2014, “Judgment Order” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

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




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