Thomas M. White, Jr. v. Donnie Ames, Superintendent

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Thomas M. White, Jr.,

Petitioner Below, Petitioner FILED

February 3, 2020

vs) No. 18-0892 (Cabell County 16-C-322) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Donnie Ames, Superintendent,

Mount Olive Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Thomas M. White, Jr., by counsel Steven M. Wright, appeals the September 28,

2018, order of the Circuit Court of Cabell County that denied his petition for post-conviction

habeas corpus relief. Respondent Donnie Ames,1 Superintendent, Mount Olive Correctional

Complex, by counsel Caleb E. Ellis, filed a response in support of the habeas court’s order.

The 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.

On November 6, 2012, two armed men entered a known drug house at 1932 Foster Avenue

in Huntington, West Virginia. Soon thereafter, at about 10:30 a.m., Cabell County 9-1-1 received

a call from a young girl who was in an upstairs bedroom of the drug house with her mother. The

girl said she heard gunshots fired inside the house. Around the same time, another child who lived

nearby saw two adult males leave the drug house; one was running and the other was limping and

carrying a handgun. Both men stopped at a red Honda Pilot that was parked down the street from

the drug house. The men argued and then left on foot in different directions.

Huntington police officers arrived at the drug house shortly thereafter. They found Devonte

Penn on the main floor of the house; he was bleeding profusely from a gunshot wound to the groin.

Mr. Penn told the officers that “Rocky, with a mole on his face” shot him. Mr. Penn died soon

thereafter as a result of his gunshot wound. The officers then found Darrell Fuqua on the second

floor of the house dead from a gunshot to the leg and the back of the head.

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Petitioner filed this appeal against Ralph Terry, who was then the Superintendent of the

Mount Olive Correctional Center. The Court has made the necessary substitution of parties

pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure.

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Around this same time, petitioner asked a friend to take him to the hospital. Petitioner told

the friend that he had been shot in a drive-by shooting.

The police searched the crime scene and found drugs and cell phones inside the house, and

additional cell phones on the porch of the house and in the mulch next to the porch. Next to the

phone in the mulch, the police found a set of car keys that fit a red Honda Pilot (the “Honda”) that

was seen parked near the drug house. The police searched the Honda and found a Ruger pistol

under the front seat. The police also saw a man who had a mole on his face walking near the drug

house. The police questioned the man and learned his name was Rocky Williams. The police took

Mr. Williams into custody. The police also learned that petitioner was at a local hospital with a

gunshot wound.

A forensic investigation found petitioner’s blood and latent fingerprint on the Ruger pistol

found near the Honda. The police also found petitioner’s blood inside the drug house and in the

street near the drug house. The police determined that the Honda parked near the drug house was

registered in the name of petitioner’s girlfriend. The police traced one of the cell phones found on

the porch of the drug house to Mr. Williams; they traced the cell phone found in the mulch next to

the Honda keys to petitioner. The police searched petitioner’s cell phone and discovered text

messages between “T-man,” who was later determined to be petitioner, and another person known

as “Big Dog.”

When the police questioned Mr. Williams, he gave varying accounts of what happened at

the drug house. For example, he told the police that he was at the drug house to buy drugs and the

occupants of the house tried to rob him. However, Mr. Williams eventually confessed that he and

petitioner had gone to the drug house to rob the occupants, that the robbery had gone wrong, and

that, as he shot Mr. Fuqua in the leg and head on the second floor of the house, he heard shots ring

out on the main floor. When the police questioned petitioner, he denied shooting Mr. Penn.

On January 16, 2013, petitioner was indicted on two counts of first-degree murder under

West Virginia Code § 61-2-1 for his part in the November 6, 2012, crimes. Mr. Williams was also

indicted for multiple crimes, including burglary and second-degree murder. Thereafter, but prior

to petitioner’s trial in this matter, Mr. Williams pled guilty to one count of second-degree murder

and one count of first-degree burglary. The trial court sentenced Mr. Williams to forty years in

prison on the murder conviction and ten years in prison on the robbery conviction, to be served

consecutively.

Petitioner’s trial commenced on April 14, 2014. During its case-in-chief, the State sought

to admit photographs of petitioner’s two tattoos: “Thug Life” and “Fast Life” as evidence of

petitioner’s lifestyle. Petitioner’s counsel countered that the photographs were prejudicial and

irrelevant. The circuit court allowed the evidence over petitioner’s objection finding that the

prejudicial value of the photographs did not outweigh their probative value.

The State called Mr. Williams to establish his and petitioner’s motives for their crimes. Mr.

Williams testified that (1) he drove to the drug house in the Honda with petitioner to steal drugs

from Mr. Penn; (2) both he and petitioner were armed; (3) he went upstairs where he shot and

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killed Mr. Fuqua; (4) he and petitioner ran out of the drug house together towards the Honda; (5)

they discovered they lost the keys to the Honda; and (6) ran off in different directions.

A forensic expert in gunshot residue from the West Virginia State Police Laboratory

testified that he found gunshot residue on petitioner’s hand after the shooting. An expert in tool

mark and firearm examinations from the State Police Forensic Laboratory, Philip Cochran,

testified that the bullet removed from Mr. Penn’s leg was fired from petitioner’s Ruger pistol. The

State also introduced a call log from Mr. Williams’s phone that showed several calls between Mr.

Williams and petitioner’s phone on November 5, 2012, and November 6, 2012, i.e., the day before

and the day of the shooting at the drug house.

Cpl. Paul Hunter of the Huntington Police Department testified regarding the text messages

found on petitioner’s phone from “T-man” (petitioner) to “Big Dog.” Cpl. Hunter stated that the

terms used in the text messages are commonly used by those buying or selling illegal drugs.

Petitioner did not testify during his own case-in-chief.

During the instruction phase of trial, the State asked the court to instruct the jury

exclusively on a felony-murder theory for both first-degree murder counts. The circuit court gave

that instruction as well as a limiting instruction regarding the Rule 404(b) evidence entered at trial,

such as the text messages between “T-man” and “Big Dog.”

The jury convicted petitioner of two counts of first-degree murder under the felony-murder

doctrine. The circuit court sentenced petitioner to two life sentences, with mercy, to run

consecutively.

Petitioner filed a direct appeal in which he argued that the circuit court erred in admitting

the text messages between “T-Man” and “Big Dog” at trial. We found that the circuit court did not

abuse its discretion in admitting the text messages, and noted they “were related to [petitioner’s]

drug dealing ‘business’ and tended to show an overall criminal intent to enhance his illegal

‘business’ by robbing a known drug house.” State v. White, No. 14-0918, 2015 WL 7628721, at

*4 (W. Va. Nov. 20, 2015)(memorandum decision). We also found that the circuit court did not

err in finding that the text messages were more probative than prejudicial under Rule 403 of the

West Virginia Rules of Evidence. Id. Finally, we held that, due to the “ample and overwhelming

evidence of petitioner’s guilt, any error resulting from the admission of the text messages at trial

was harmless.” Id. at *5.

Thereafter, petitioner filed a pro se petition for a writ of habeas corpus. The circuit court

appointed counsel who, on September 30, 2016, filed petitioner’s amended habeas petition. The

habeas court held an omnibus hearing on August 2, 2018. Petitioner’s trial attorneys, Kerry Nessel

and Timothy Rosinsky, and petitioner testified at the omnibus hearing. On September 28, 2018,

the habeas court issued its order denying relief on all grounds. Petitioner now appeals.

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;

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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).

Petitioner raises five assignments of error on appeal. Petitioner first argues that the circuit

court erred in denying relief on his claim of ineffective assistance of trial counsel for their failure

to retain an expert to conduct an independent analysis of the bullet removed from Mr. Penn’s leg.

Petitioner’s theory of the case appears to have been that Mr. Williams shot Mr. Penn, and that

petitioner accidentally shot himself. Specifically, petitioner claims that, when he heard shots fired

on the second floor of the drug house, he pulled the Ruger pistol out of the waistband of his pants

and accidentally shot himself. Petitioner notes that the bullet remains lodged in his leg and cannot

be removed without endangering his life, but that the angle of the bullet wound supports his

argument. Petitioner also highlights that Mr. Penn told the police shortly before he died that Mr.

Williams shot him. Petitioner claims that, absent an independent investigation of the bullet, it was

impossible for him to prove his theory of the case. Accordingly, petitioner contends that no

reasonable attorney would have refrained from hiring a forensic expert to show that the bullet that

struck Mr. Penn was not fired from petitioner’s Ruger pistol.

“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, State v. Miller, 194 W.Va. 3,

459 S.E.2d 114 (1995).

Syl. Pt. 2, Raines v. Ballard, 236 W. Va. 588, 782 S.E.2d 775 (2016).

At petitioner’s omnibus hearing, Mr. Rosinsky, petitioner’s primary trial counsel, testified

that he investigated petitioner’s case extensively, retained an investigator, met with petitioner

frequently, and spent more than 300 hours on the case. With respect to the bullet lodged in

petitioner’s leg, Mr. Rosinsky testified that he asked the State to pay for a surgery to remove the

bullet in order to prove that it came from petitioner’s gun; however, the surgery could not be

performed due to the danger it presented to petitioner’s life. Mr. Rosinsky also testified that he

chose not to press the issue because he was confident that the State would rely on a felony-murder

theory, given that Mr. Penn told the officers that “Rocky [Williams], with a mole on his face” shot

him. Mr. Rosinsky further testified that he did not hire a ballistics expert for the same reason, i.e.,

he saw no benefit in challenging the State’s expert’s conclusions that the bullet in Mr. Penn’s leg

came from petitioner’s gun because it would not have negated the State’s felony-murder theory.

Petitioner’s trial counsel’s decisions regarding an independent analysis of the bullet found

in Mr. Penn’s groin, and the presentation of medical evidence showing how petitioner was shot,

are ordinarily construed to be strategic or tactical choices. “Where a counsel’s performance,

attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of

action, his conduct will be deemed effectively assistive of his client’s interests, unless no

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reasonably qualified defense attorney would have so acted in the defense of an accused.” Syl. Pt.

5, Ballard v. Thomas, 233 W. Va. 488, 759 S.E.2d 231 (2014) (quoting Syl. Pt. 21, State v. Thomas,

157 W. Va. 640, 203 S.E.2d 445, 449 (1974)). Here, the record shows that petitioner’s trial counsel

adequately investigated the issues related to the bullet recovered from Mr. Penn’s leg and the bullet

lodged in petitioner’s groin, and made a strategic decision not to present additional evidence on

these issues due to the likelihood that the State would proceed against petitioner on a felony-

murder theory, which it did, in fact, do. Accordingly, petitioner fails to satisfy either prong of

Strickland/Miller with respect to his trial counsel’s decision not to retain an expert to conduct an

independent analysis of the bullet removed from Mr. Penn’s leg.

In petitioner’s second assignment of error, he argues that the circuit court erred in denying

relief on his claim of ineffective assistance of counsel for his trial counsel’s failure to object or

move to strike the speculative theories put forth by Detective Chris Sperry at petitioner’s trial. At

trial, petitioner’s counsel called Detective Sperry as an adverse witness. Detective Sperry testified

that his theory of the case was a “robbery gone bad.” Petitioner’s counsel asked Detective Sperry

if he had any direct evidence that petitioner and Mr. Williams agreed to rob the drug house, other

than Mr. Williams’s testimony. Detective Sperry replied,

[Mr. Williams] sat up here and said I didn’t shoot downstairs, I believe. I don’t

think at the time he knew downstairs, if he shot anybody downstairs or not. I think

he fired his gun, he didn’t know. I don’t think [petitioner] knew for sure who he

shot or if he shot anybody until the ballistics report came back, then I knew for sure

who he shot.

So when they went in there to make a drug transaction it went bad, but I know as

an investigator . . . , I didn’t have to prove who shot who. I just had to show it was

a robbery and during the robbery a murder happened, so it doesn’t matter who shot

who. So I know as an investigator, and the statute is it’s murder, everybody is

charged with murder.

According to petitioner, Detective Sperry contradicted himself when he said (1) this was a

“robbery gone bad,” and (2) petitioner and Mr. Williams were at the drug house to make a drug

transaction. Petitioner further argues that Detective Sperry speculated as to (1) what Mr. Williams

knew at the time, and (2) the applicable law of the case. Petitioner highlights that the trial court

told Detective Sperry, “I’m in charge of the law. Just answer the questions.” Detective Sperry then

testified that,

something happened in the house to make the shots. I mean, why did he have to

shoot everybody in the house, they thought. . . . Why did they have to shoot

everybody in the house? When Rocky left, he fired some more grounds [sic]. I think

he inadvertently shot [petitioner] on the way out, but they continued to leave

together.

At a bench conference immediately thereafter, the court told petitioner’s counsel, “This is

your witness, he’s speculating all over the place on theories that aren’t in evidence. So either wrap

it up or be direct, but I am not going to let him speculate about the law and things that aren’t in

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evidence.” Petitioner highlights that, despite this admonition, his trial counsel did not object to or

move to strike any portion of Detective Sperry’s testimony.

Petitioner further argues that Detective Sperry repeatedly told the jury that the police

investigated petitioner’s girlfriend’s Honda with regard to three other crimes, which was why the

Detective knew this case regarded a robbery. Petitioner argues that, even if the Honda was involved

in other crimes, the evidence regarding those crimes was irrelevant and extremely prejudicial

because it suggested petitioner was connected to the other crimes. Petitioner avers that, in light of

Rules 401 and 403 of the Rules of Evidence, Detective Sperry’s statement about the Honda should

not have been admitted into evidence. Petitioner contends that Detective Sperry corroborated the

State’s theory of the case and that, without Detective Sperry’s testimony, the State had only Mr.

Williams’ testimony that this case regarded a “robbery gone bad.” Petitioner contends that his trial

counsel should have stopped Detective Sperry from making speculative and prejudicial comments

or, alternatively, moved to strike those comments and sought a cautionary instruction from the

court. Petitioner concludes that trial counsel’s failure to do so satisfies the first prong of Strickland.

As to the second prong of Strickland, petitioner contends there is a reasonable probability that, but

for trial counsel’s errors, there would have been a different outcome at trial.

We disagree and find that petitioner’s trial counsel was not ineffective for allowing

Detective Sperry to speculate about the events that transpired at the drug house. Although

petitioner cites to various answers given by Detective Sperry, he offers no substantive analysis of

the first prong of Strickland with respect to those answers. The record on appeal shows that trial

counsel made strategic decisions during this line of questioning. For example, trial counsel asked

Detective Sperry questions about his investigation of the case to prove the defense’s theory of the

case, i.e., that the State was proceeding on a felony-murder theory to compensate for their lack of

evidence against petitioner. Trial counsel was successful in getting Detective Sperry to admit that

the State was doing just that.

As for the habeas court, it found that “trial counsel believed [Detective Sperry’s] testimony

would be harmless or beneficial to his client.” Petitioner has not demonstrated this finding to be

clearly erroneous. Indeed, in light of his counsel’s overall strategy, opting not to move to strike

Detective Sperry’s testimony was clearly a strategic decision.

Petitioner also fails to show that he was prejudiced by any of these alleged errors. He asserts

that (1) the jury likely deferred to Detective Sperry’s testimony; and (2) by allowing Detective

Sperry to testify that he believed a robbery occurred the jury heard testimony that supported Mr.

Williams’s testimony. This claim fails because Detective Sperry’s answers were arguably

favorable to petitioner’s case, i.e., Detective Sperry stated, “I don’t think the defendant knew for

sure who he shot or if he shot anybody until the ballistics report came back.” Detective Sperry also

initially characterized petitioner’s presence at the drug house as “a drug transaction” before stating

that the State “had to show it was a robbery” in order to satisfy the felony-murder statute. That

answer restated petitioner’s theory of the case that he was at the drug house to buy drugs and the

police made the facts fit the State’s robbery theory. That said, even if Detective Sperry’s testimony

was not favorable to petitioner, it was likely not dispositive because the State’s case against

petitioner was based on significant circumstantial evidence, and – given the overwhelming

testimony against petitioner at trial – there is no reasonable probability that the outcome would

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have been different if Detective Sperry had not testified or if trial counsel had objected to or moved

to strike his testimony.

Petitioner’s trial counsel was also not ineffective with regard to Detective Sperry’s

implication that petitioner was involved in other crimes. Specifically, petitioner points to Detective

Sperry’s testimony that: (1) “I know [petitioner and Mr. Williams] would have got in a Honda

Pilot that I knew who owned that Honda Pilot from a previous incident, I knew who owned that. I

know what that car had been involved in.” (2) “I had all that information, the information that the

[red] Honda Pilot, that I am very familiar with through prior contact in investigating crimes, that

[the owner] was [petitioner’s] woman.” (3) “I know the red Honda Pilot, again I have had

interaction with that lady in another particular case, similar to this case, I know its’s [petitioner’s]

woman.”

Petitioner claims Detective Sperry’s answers suggest petitioner was involved in, or

connected to, other similar crimes. Petitioner argues that “no reasonably qualified defense attorney

would have failed to object to these prejudicial statements.” We disagree. First, each of the answers

noted above resulted from an open-ended question; therefore, if trial counsel had objected or

moved to strike, the motion likely would have been overruled or denied. See Syl. Pt. 4, State v.

Crabtree, 198 W. Va. 620, 623, 482 S.E.2d 605 (1996). Thus, the decision not to object or move

to strike was reasonable to avoid drawing the jury’s attention to potentially unfavorable answers.

Petitioner also claims that Detective Sperry’s answers were prejudicial because they suggested

petitioner was involved in other crimes. However, the answers to which petitioner objects focus

on the car and on petitioner’s “woman,” and not on petitioner. Even if the jury inferred otherwise,

petitioner fails to show that if trial counsel had objected to Detective Sperry’s answers that the

outcome at trial would have been different. Accordingly, his ineffective assistance of counsel claim

fails as it relates to his trial counsel’s handling of Detective Sperry at trial.

In petitioner’s third assignment of error, he argues that the habeas court erred in denying

relief on his claim that his sentence is disproportionate when compared to Mr. Williams’s sentence.

Petitioner claims that the nature of his offenses and the circumstances of this case show that his

two consecutive life sentences with the possibility of parole are not constitutionally proportional

to his level of culpability. Petitioner highlights that Mr. Williams shot and killed Mr. Fuqua, and

that, before he died, Mr. Penn said Mr. Williams shot him. Under his plea agreement, Mr.

Williams’s sentence is ten years in prison for robbery and forty years in prison on the murder

charge. Thus, Mr. Williams will be eligible for parole in twelve years and six months. However,

under his two life sentences, petitioner will not be eligible for parole for thirty years. Thus,

petitioner contends that, in comparison to Mr. Williams’s sentence, his sentence shocks the

conscience and offends fundamental notions of human dignity, thereby violating West Virginia

Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character

and degree of an offense. See Syl. Pt. 5, State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983).

Petitioner claims that his actions did not manifest an intent to kill anyone, nor did he kill anyone,

whereas Mr. Williams clearly intended to murder Darrell Fuqua given that he shot Mr. Fuqua in

the leg and the head.

In denying relief to petitioner on the ground of constitutional disproportionality of

sentence, the habeas court ruled that,

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Petitioner was convicted by a jury of two counts of felony murder. The

sentence pronounced is proper pursuant to W. Va. Code 62-3-15. The co-

Defendant, [Mr.] Williams, entered into a plea deal prior to trial and testified

against [p]etitioner at trial. Moreover, trial counsel testified at the omnibus hearing

that he had argued for lighter sentencing, but that he and [p]etitioner “knew going

in that if we were convicted that that [sentence] was a very real possibility in this

case” and that they had many discussions about that in conjunction with the much

lower sentences offered to the petitioner in plea negotiations . . . . Therefore, there

is not a reasonable argument for relief based on disproportionate sentencing in this

case.

There are two tests to determine whether petitioner’s sentence is constitutionally

impermissible:

The first is subjective and asks whether the sentence for the particular crime

shocks the conscience of the court and society. If a sentence is so offensive

that it cannot pass a societal and judicial sense of justice, the inquiry need

not proceed further. When it cannot be said that a sentence shocks the

conscience, a disproportionality challenge is guided by the objective test we

spelled out in Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va.

523, 276 S.E.2d 205 (1981):

In determining whether a given sentence violates the

proportionality principle found in Article III, Section 5 of the

West Virginia Constitution, consideration is given to the

nature of the offense, the legislative purpose behind the

punishment, a comparison of the punishment with what

would be inflicted in other jurisdictions, and a comparison

with other offenses within the same jurisdiction.

Cooper, 172 W.Va. at 272, 304 S.E.2d at 857.

Moreover, “[s]entences imposed by the trial court, if within statutory limits and if not based

on some [im]permissible factor, are not subject to appellate review.” Syl. Pt. 4, State v. Goodnight,

169 W. Va. 366, 287 S.E.2d 504 (1982). Finally, the Court has declined to review proportionality

challenges to sentences rendered under statutes providing maximum penalties. A jury convicted

petitioner of two counts of first-degree murder, in violation of West Virginia Code § 61-2-1 (1991).

In West Virginia, life imprisonment is the required sentence for a defendant convicted of such a

crime. See W. Va. Code § 61-2-2; see also State v. Holstein, 235 W. Va. 56, 68, 770 S.E.2d 556,

568 (2015) (finding that a sentence of life imprisonment for first-degree murder was

“unquestionably within statutory limits”). As for parole, a defendant convicted of first-degree

murder by a jury and sentenced to life imprisonment is not eligible for parole, absent the jury’s

recommendation of mercy. If mercy is granted, the defendant becomes eligible for parole after

serving fifteen years in the penitentiary. See W. Va. Code § 62-3-15. Here, the State declined to

seek the jury’s determination regarding mercy. Nevertheless, the circuit court sentenced petitioner

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as if there had been a mercy recommendation. Therefore, the court sentenced petitioner in

accordance with the relevant statutes, and he has not shown that his sentence was based on any

impermissible factor. Therefore, his sentence is not subject to appellate review.

Petitioner’s sentence is also not subjectively or objectively disproportionate. As noted

above, under the subjective test for disproportionality, “[p]unishment may be constitutionally

impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime

for which it is inflicted that it shocks the conscience and offends fundamental notions of human

dignity.” Cooper, 172 W. Va. at 267-68, 304 S.E.2d at 852, syl. pt. 5. “‘If a sentence is so offensive

that it is found to shock the conscience, the inquiry need not further proceed. Such a sentence must

be vacated.’ See Cooper, 172 W.Va. at 272, 304 S.E.2d at 857.” State v. Goff, 203 W. Va. 516,

523, 509 S.E.2d 557, 564 (1998). If a sentence does not shock the conscience, the Court evaluates

it under the objective test set out above in syllabus point 5 of Wanstreet, 166 W. Va. at 523-24,

276 S.E.2d at 207. Petitioner’s sentence does not shock the conscience. Murder is, by its very

nature, a heinous offense because it involves the taking of a human life. Here, the evidence showed

that two men died due to petitioner’s and Mr. Williams’s acts. The evidence also showed that the

crime occurred in a home where a child and her mother were present. Therefore, under the

subjective standard, petitioner’s life sentence, with mercy, for each of his first-degree murder

convictions is not disproportionate.

Nor was petitioner’s sentence disproportionate when considered under Wanstreet’s

objective factors. First, we examine the nature of the offense. As previously stated, murder is a

heinous offense. In this case, the two murders occurred while petitioner and Mr. Williams sought

to rob the victims of illegal drugs. Second, under West Virginia Code § 61-2-2, life imprisonment

is the mandatory sentence for a first-degree murder conviction. Third, a review of other

jurisdictions shows that a life sentence with the possibility of parole is not an unduly harsh sentence

for a first-degree murder conviction. For example, in Pennsylvania and Missouri, a conviction of

first-degree murder carries the potential sentence of death or life without possibility of parole. See

Mo. Rev. Stat. § 565.020; 42 Pa.C.S.A § 9711. In Tennessee, the penalty ranges from death to life

with or without the possibility of parole. See Tenn. Code § 39-13-204(a). Fourth, in comparison

with other offenses in West Virginia, many other serious crimes are also punishable by a life

sentence or an uncapped determinative sentence. See, e.g., W. Va. Code § 61-1-2 (treason

punishable by up to life imprisonment); W. Va. Code § 61-2-14a (kidnapping punishable by life

with or without the possibility of parole); W. Va. Code § 61-2-12 (first-degree robbery punishable

by an uncapped determinative sentence with a minimum of ten years). Thus, petitioner’s sentence

was clearly not disproportionate.

Petitioner also asserts that his sentence is disproportionate in light of Mr. Williams’s

consecutive sentences of forty years in prison for second-degree murder, and ten years in prison

for first-degree robbery. “Disparate sentences for codefendants are not per se unconstitutional” but

if “codefendants are similarly situated, some courts will reverse on disparity of sentence alone.”

Syl. Pt. 2, State v. Buck, 173 W. Va. 243, 314 S.E.2d 406, 407 (1984). In determining whether

codefendants are similarly situated, the Court considers “each codefendant’s respective

involvement in the criminal transaction (including who was the prime mover), prior records,

rehabilitative potential (including post-arrest conduct, age and maturity), and lack of remorse.” Id.

In this case, such an inquiry has no application because petitioner and Mr. Williams were convicted

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of different crimes and in different manners, i.e., Mr. Williams plead guilty to second-degree

murder and first-degree robbery, while a jury convicted petitioner of two counts of first-degree

murder under a felony-murder theory. Petitioner asserts this distinction is not dispositive given

that the co-defendants in Buck were also convicted of different offenses. However, unlike

petitioner, Mr. Buck was convicted of first-degree robbery; accordingly, the trial court had

discretion in sentencing. Finally, petitioner received the minimum possible sentence for each of

his convictions: life with the possibility of parole.

In petitioner’s fourth assignment of error, he argues that the habeas court erred in denying

relief on his claim of ineffective assistance of appellate counsel for appellate counsel’s alleged

failure to fully argue issues regarding Rule 404(b) evidence. Petitioner’s appellate counsel listed

twelve assignments of error in petitioner’s notice of appeal. Petitioner avers that he urged appellate

counsel to raise additional grounds in his direct appeal and to meet with him to discuss those

grounds prior to the filing of his appeal. However, appellate counsel opted not to meet with

petitioner or to allow him to review his petition on appeal, which regarded only the admission at

trial of the text messages between “T-man” and “Big Dog.”

At the omnibus hearing, petitioner’s habeas counsel questioned petitioner’s appellate

counsel as follows:

Habeas Counsel: Do you recall whether or not you met with [petitioner] prior to

filing your Supreme Court appeal?

Appellate Counsel: I don’t think so. I’ve never been to prison to see him. I was over

at the Western Regional a lot to see him.

Habeas Counsel: Do you recall whether or not he sent you correspondence with the

substance of said correspondence directing you to meet with him prior to the filing?

Appellate Counsel: I don’t know. He may have. I wouldn’t have cared, to be honest

with you. It’s a legal document and I know [petitioner] didn’t go to law school, I

know I did. And I don’t routinely meet . . . with my clients on criminal appeals once

the record has been made, and it was in this case made.

In the order on appeal, the habeas court found that,

All of the issues addressed [in petitioner’s direct] appeal related to the introduction

of Rule 404(b) evidence [the text messages sent between “T-man” and “Big Dog.”]

The Court fully considered those issues and addressed each in the resulting

Memorandum Decision. The other extraneous issues that the [p]etitioner claims

should have also been raised on appeal do not rise to the level of ineffective

assistance. Importantly, the Supreme Court’s Memorandum decision specifically

notes that there was “ample and overwhelming evidence of petitioner’s guilt . . . .”

Regarding petitioner’s claim that appellate counsel refused to meet with him to discuss

the issues to be raised in petitioner’s appeal, the United States Supreme Court has held that

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appellate attorneys must have discretion in selecting the issues on appeal. See Jones v. Barnes, 463

U.S. 745, 754 (1983) (“Nothing in the Constitution or our interpretation of that document requires”

appellate counsel to “raise every ‘colorable’ claim suggested by a client. . . .”). Therefore, it was

reasonable for appellate counsel to focus on the admission of the text messages between petitioner

(“T-man”) and “Big Dog.” Accordingly, petitioner fails to show appellate counsel’s performance

was deficient.

Petitioner also claims that his appellate counsel was deficient for failing to appeal the

introduction of the photographs of petitioner’s tattoos as improper 404(b) evidence, to his

prejudice. Petitioner’s claim fails under Strickland’s prejudice prong because he fails to state how

the result of his appeal would have been different if appellate counsel had raised that issue. In

petitioner’s direct appeal the Court found with regard to the admission of certain text messages on

petitioner’s phone that, even it were assumed that the circuit court erred in allowing this evidence,

it was harmless given the “ample and overwhelming evidence of petitioner’s guilt.” White, 2015

WL 7628721, at *5. Given that the evidence of petitioner’s guilt was so substantial, even if

appellate counsel had raised the admission of the photographs of petitioner’s tattoos, there was no

reasonable probability that the Court would have reversed his conviction. Accordingly, petitioner’s

ineffective assistance of appellate counsel claim fails because he failed to demonstrate that he was

unfairly prejudiced by the admission of this evidence.

In petitioner’s fifth assignment of error, he argues that the habeas court erred in denying

relief for the cumulative effect of the State’s multiple errors at trial. The cumulative error doctrine

does not apply where no errors are found. See State v. Knuckles, 196 W. Va. 416, 473 S.E.2d

131(1996). “Cumulative error analysis should evaluate only the effect of matters determined to be

error, not the cumulative effect of non-errors.” Id. at 426, 473 S.E.2d at 141. Having found no

error, we reject this assignment of error.

For the foregoing reasons, we affirm the habeas court’s September 28, 2018, order denying

petitioner’s request for post-conviction habeas corpus relief.

Affirmed.

ISSUED: February 3, 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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