                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


David Ballard, Warden,                                                              FILED
Respondent Below, Petitioner                                                     May 30, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-0283 (Pocahontas County 09-C-07)                                      OF WEST VIRGINIA


David Lee Hurt,

Petitioner Below, Respondent



                               MEMORANDUM DECISION
       Petitioner David Ballard, Warden, by counsel Laura Young and Marland Turner, appeals
an order of the Circuit Court of Pocahontas County entered February 21, 2013, which granted
Respondent David Lee Hurt’s petition for writ of habeas corpus. Respondent, by counsel Crystal
Walden, filed a response to which 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.

        Respondent was tried and convicted by a jury of first-degree murder on May 29, 1998, in
connection with the robbery and shooting death of Freddie Lester at the gas station and
convenience store where he worked in Bluefield, Mercer County, West Virginia.1 The evidence
upon which respondent was convicted is set forth in great detail in the circuit court’s order
granting respondent’s request for habeas relief. Respondent was sentenced to life in prison with a
recommendation of mercy. Respondent’s post-trial motions for arrest of judgment and a new trial
were denied, and his direct appeal was refused by this Court by order entered June 3, 1999.

       Respondent filed a pro se habeas petition on September 14, 1999, which was denied on
November 18, 1999. An amended habeas petition was subsequently filed (by newly appointed
counsel) based upon the fact that respondent’s co-defendant recanted his trial testimony
implicating respondent in the crime. The amended habeas petition was denied by the circuit
court.

       1
        At the end of respondent’s first trial, which was held in Mercer County (where Mr.
Lester’s death occurred), the jury voted ten to two to acquit. As a result of the hung jury, the trial
court declared a mistrial. Respondent’s trial counsel subsequently moved for and was granted a
change of venue due to the publicity attendant to the first trial. Venue was transferred to
Pocahontas County.
                                                  1

        A second habeas petition was filed in November of 2008 alleging that newly discovered
evidence supported respondent’s innocence2 and further alleging ineffective assistance of
previous habeas counsel. By order entered June 10, 2010, the habeas court applied the two-
pronged test set forth in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995),3 and concluded
that respondent’s previous habeas counsel was ineffective. Accordingly, the habeas court ordered
that respondent be afforded a new opportunity to present a habeas petition and that grounds
raised in the prior habeas matter would not be barred by res judicata. An omnibus evidentiary
hearing was held on April 15, 2011. By order entered April 18, 2011, the habeas court granted
petitioner’s request for habeas relief and vacated his conviction.

        The State of West Virginia appealed the April 18, 2011, order granting habeas relief.
This Court reversed and remanded, concluding, in relevant part, that the habeas court committed
error in failing to make specific findings of fact and conclusions of law relating to its finding of
ineffective assistance of counsel. Ballard v. Hurt, 230 W.Va. 374, 380, 738 S.E.2d 538, 545
(2012). After remand, the habeas court entered a thirty-two page order on February 21, 2013,
with extensive findings and conclusions in support of its ruling granting habeas relief. This
appeal followed.

       This Court reviews appeals of circuit court orders granting 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



       2
         The newly discovered evidence of respondent’s innocence consisted of statements by
Barney and Marsha Wheeler, the parents of respondent’s girlfriend, Ginger Wheeler. According
to Mr. and Mrs. Wheeler, who had never before been interviewed in connection with the case,
respondent was on the telephone with their daughter for a four-hour period spanning the
night/morning of Mr. Lester’s murder, including the time the crime transpired. Respondent
argued that the Wheelers’ version of events corroborated his co-defendant’s recantation of his
prior claim that respondent was involved in Mr. Lester’s murder.
       3
        In syllabus point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this
Court held as follows:

               In 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.

See Syl. Pt. 3, Ballard v. Ferguson, 232 W.Va. 196, 751 S.E.2d 716 (2013).
                                                 2

       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). See also
Ballard v. Ferguson, 232 W.Va. 196, __, 751 S.E.2d 716, 719 (2013) (“Findings of fact made by
a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on
appeal by this Court unless such findings are clearly wrong.” (quoting Syl. Pt. 1, State ex rel.
Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975)).

        On appeal, petitioner argues that the habeas court erred in finding that trial counsel was
ineffective for failing to investigate respondent’s alibi; failing to secure the attendance of a
witness; failing to object to “non-disclosed” State witnesses; seeking a change in venue and then
failing to object to the new venue; conducting a “haphazard” voir dire; and failing to object to
the prosecutor’s remarks in closing.

        Having carefully reviewed the habeas court’s order, this Court concludes that the habeas
court did not abuse its discretion in granting respondent’s request for habeas corpus relief. The
habeas court carefully addressed respondent’s claims that his trial counsel was ineffective. More
specifically, the habeas court’s very detailed order supports its conclusion that trial counsel was
ineffective for failing to investigate respondent’s alibi that he was not present at the crime scene
when Mr. Lester was shot by respondent’s co-defendant but, rather, was at home talking with his
girlfriend on the telephone. The habeas court made specific reference to the fact that trial counsel
failed to interview the girlfriend’s parents even though respondent requested that he do so, and
further failed to subpoena telephone records in an effort to corroborate respondent’s alibi in this
regard. The habeas court observed that respondent’s alibi should have been investigated and
efforts to corroborate it should have been made, especially given the fact that respondent’s co­
defendant recanted his initial testimony implicating respondent and then later changed course
again, claiming that respondent was, in fact, present during the murder of Mr. Lester. This Court
cannot conclude that the habeas court abused its discretion in concluding that trial counsel was
ineffective under the two-pronged test in Miller.

        Likewise, the habeas court did not abuse its discretion in concluding that trial counsel
was ineffective for failing to subpoena all witnesses necessary for an adequate defense. In
particular, the habeas court found that trial counsel failed to secure the attendance of a key
witness.4 Although the witness previously testified in respondent’s first trial, the trial court
refused to permit his testimony to be read during the retrial. In its February 21, 2013, order, the
habeas court explained, in detail, that trial counsel’s failure to secure a necessary witness was
deficient under the two pronged test set forth in Miller. The habeas court did not abuse its
discretion in finding that trial counsel was ineffective in this regard.




       4
        Trial counsel failed to review the return of service and, therefore, was unaware that the
witness was not properly served with a subpoena because the witness had moved out of state and
no longer lived at the home where service was attempted.


                                                 3

        Finally, the habeas court determined that trial counsel was ineffective for failing to object
to testimony from two witnesses for the State who were not timely disclosed; requesting a
change of venue even though respondent was nearly acquitted in his first trial in Mercer County;
failing to object to Pocahontas County as the new venue given that that county is “virtually
devoid of African American citizens[;]”5 failing to inquire, during voir dire, if any member of
the all-white jury panel was affiliated with The National Alliance, a locally-based white
supremacist organization, or any other similar group; and failing to object to closing remarks by
the State that characterized respondent as a “drug dealer,” a misleading and prejudicial statement
that was based on evidence expressly excluded by the trial court. The habeas court’s in-depth
discussion and legal analysis supporting its conclusion that, under Miller, trial counsel was
deficient in all of these respects was not an abuse of discretion and will not be disturbed on
appeal.

        Given that the habeas court’s order includes extensive and well-reasoned findings and
conclusions as to all of the assignments of error raised herein and our conclusion that the habeas
court’s order and the record before us reflect no clear error or abuse of discretion, we hereby
adopt and incorporate the habeas court’s findings and conclusions and direct the Clerk to attach a
copy of the habeas court’s February 21, 2013, order granting respondent’s petition for writ of
habeas corpus to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: May 30, 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




       5
           Respondent is African American.
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