663 S.E.2d 576
2. 'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt. Syl. pt. 5, State ex rel. Grob v. Bailey, 158 W.Va. 647, 214 S.E.2d 330 (1975).' Syllabus Point 1, Maxey v. Bordenkircher,  W.Va. , 330 S.E.2d 859 (1985). Syllabus Point 3, State v. Barrow, 178 W.Va. 406, 359 S.E.2d 844 (1987).
3. W.Va.Code, 53-4A-1(d)  allows a petition for post-conviction habeas corpus relief to advance contentions or grounds which have been previously adjudicated only if those contentions or grounds are based upon subsequent court decisions which impose new substantive or procedural standards in criminal proceedings that are intended to be applied retroactively. Syllabus Point 1, Bowman v. Leverette, 169 W.Va. 589, 289 S.E.2d 435 (1982).
This case is before this Court upon appeal of a final order of the Circuit Court of McDowell County entered on September 25, 2006. In that order, the circuit court denied a petition for a writ of habeas corpus filed by James Blaine Waldron (hereinafter the appellant). In this appeal, the appellant contends that the circuit court erred by failing to hold an evidentiary hearing prior to denying him habeas corpus relief. In 2004, the appellant was convicted of voluntary manslaughter and sentenced to seven years in the penitentiary. On September 30, 2004, upon a finding that the appellant was a recidivist offender based on his prior felony convictions, the circuit court sentenced him to an additional five years, for a total confinement of twelve years. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court did not commit reversible error and, accordingly, affirm the decision below.
The appellant was incarcerated from the time of his arrest until approximately
three months later when he agreed to assist law enforcement officers in their investigation
in exchange for leniency. The appellant directed police to the location of evidence such as
the murder weapon and Mr. Mullins' bloody clothing. He also submitted to a blood test and
gave a voluntary statement. For his assistance in recovering evidence, the State entered into
a plea agreement whereby the felony indictment against the appellant was dismissed and the
State agreed to allow the appellant to enter a voluntary plea of guilty to the misdemeanor
charge of accessory after-the-fact and to recommend a period of one-year confinement in the
regional jail, a fine of $250., and all court costs.
On February 6, 2003, the circuit court refused to accept the appellant's plea agreement. Thereafter, upon realizing that he had a close personal relationship with a member of the victim's family, that circuit judge transferred the case to another circuit judge. On March 3, 2003, the plea agreement was presented to the second circuit judge who also refused to accept it, stating that he would only entertain a felony plea. The case then proceeded to trial and the appellant was convicted of voluntary manslaughter.
Thereafter, this Court granted the appellant's petition for appeal and, subsequently, on November 30, 2005, affirmed his convictions. See State v. Waldron, 218 W.Va. 450, 624 S.E.2d 887 (2005). On March 10, 2006, the appellant filed a pro se petition
for a writ of habeas corpus wherein he requested the appointment of counsel. On April 19, 2006, the appellant was appointed counsel who amended the appellant's pro se petition. The appellant raised six issues in his petition for habeas relief. On September 25, 2006, the circuit court entered an order denying habeas corpus relief. This appeal followed.
In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review
the circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.
Id. at 661, 458 S.E.2d at 331 (citing Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995)). With these standards in mind, we proceed to review the trial court's rulings on the issue of habeas corpus relief to determine if any error was committed.
court .-If the petition is not dismissed
at a previous stage in the proceeding, the circuit court, after the
answer is filed, shall, upon a review of the record, if any,
determine whether an evidentiary hearing is required. If the
court determines that an evidentiary hearing is not required, the
court shall include in its final order specific findings of fact and
conclusions of law as to why an evidentiary hearing was not
The appellant states that he was not afforded the evidentiary hearing, and the circuit court's order denying said relief lacked specific findings of fact and conclusions of law as to why an evidentiary hearing was not required in violation of Rule 9.
Conversely, the State contends that given the facts and circumstances of this case, the appellant was not entitled to a hearing on the issues raised in his petition for writ of habeas corpus. The State notes that four of the six issues in the appellant's Amended Petition for Writ of Habeas Corpus have been previously adjudicated on the merits by this Court in State v. Waldron, 218 W.Va. 450, 624 S.E.2d 887 (2005). Moreover, since there have been no subsequent decisions which, if deemed retroactive and applied to the issues in Waldron, could lead to a different result, the four issues are res judicata and required no hearing. With respect to the other two issues, the allegation that the State knowingly used perjured testimony and the appellant received ineffective assistance of counsel, the State also maintains that as a matter of law no hearing was required.
Upon review of the final order, it is clear that the circuit court concluded that an evidentiary hearing on the appellant's habeas petition was not necessary. The circuit court issued a lengthy order meticulously addressing each of the six issues raised by the appellant and explaining in detail why the alleged errors were without merit. To the extent that the court erred by failing to specifically state in its order that an evidentiary hearing was not required, this Court has acknowledged that, [m]ost errors, including constitutional ones are subject to harmless error analysis. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). Likewise, this Court has held that: 'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt. Syl. pt. 5, State ex rel. Grob v. Bailey, 158 W.Va. 647, 214 S.E.2d 330 (1975).'
Syllabus Point 1, Maxey v. Bordenkircher,  W.Va. , 330 S.E.2d 859 (1985). Syllabus Point 3, State v. Barrow, 178 W.Va. 406, 359 S.E.2d 844 (1987). In this case, the circuit court addressed and disposed of each issue set forth in the appellant's habeas petition in such an exhaustive manner that there is no question as to why the appellant was denied an evidentiary hearing.
The circuit court found that the first four issues raised in the appellant's habeas petition had been addressed by this Court in the appellant's direct appeal. In Waldron, this Court rejected the appellant's arguments concerning: unfulfilled plea bargains; refusal to turn over witness notes after a witness had testified; constitutional errors in evidentiary rulings (specifically, gruesome photographs); and instructions to the jury (specifically, the modified Allen (See footnote 1) charge). In Syllabus Point 1 from Bowman v. Leverette, 169 W.Va. 589, 289 S.E.2d 435 (1982), we held,
W.Va.Code, 53-4A-1(d)  allows a petition for
post-conviction habeas corpus relief to advance contentions or
grounds which have been previously adjudicated only if those
contentions or grounds are based upon subsequent court
decisions which impose new substantive or procedural standards
in criminal proceedings that are intended to be applied
In the case at hand, the appellant made the same arguments in his habeas petition as he did in his direct appeal. Moreover, the appellant did not present any contentions or grounds for the reversal of his conviction based upon subsequent decisions by this Court as required by Bowman. Thus, these issues raised by the appellant lacked merit and no evidentiary hearing was required.
The next issue raised in the appellant's petition concerned his allegation that the State had knowingly used perjured testimony against him during trial. The circuit court noted in its order:
In his Amended Petition for Writ of Habeas Corpus,
Waldron asserts that the State knowingly used Mose Douglas
Mullins's perjured testimony about the one thousand dollars
($1,000.00) that he allegedly gave to Waldron in exchange for
Waldron participating in the commission of the crime: being on
the lookout for traffic while Mose Mullins shot three people. G.
Todd Houck, a special prosecutor, responds that there is no fact
or evidence in the record to substantiate this allegation. Indeed,
Waldron's assertion that the State knowingly used perjured
testimony is without merit because during his testimony Mose
Mullins willingly admitted that while he offered the $1,000.00
to Waldron, he did not give it to him. Trial Transcript, Volume
III, page 398. In fact, Mose Mullins conceded that the
$1,000.00 was recovered from his person by the police and
given to his wife, Pamela Mullins. Id.
Moreover, Waldron alleges that while Mullins failed to implicate Waldron in the commission of the crimes on numerous prior occasions, he testified at trial that the petitioner was fully aware of the crimes and willingly participated in them. This allegation is also without merit because while Mose Mullins described Waldron's actions, he nevertheless kept repeating that
Rusty [Waldron] did not do anything. (See footnote 2) Id. at 403-404. Moreover, prior to taking a guilty plea, Mullins wrote a letter to the Probation Department detailing everything that happened on the day of the crime. Id. at 407. Specifically, Mullins wrote that when he placed the gun between himself and Waldron in the car, Waldron asked him if he was going to kill Don Ball, too. Id. at 407-408. Accordingly, based on the foregoing, Waldron's assertion about Mose Mullins's testimony being untruthful is without merit.
The appellant's petition contains no supporting facts whatsoever, just a scant and bare allegation without any legal analysis. The case law is clear that prior inconsistent statements are a matter for cross examination and impeachment. See, e.g., State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990); State v. Wood, 194 W.Va. 525, 460 S.E.2d 771 (1995); State v. Blake, 197 W.Va. 700, 478 S.E.2d 550 (1996); and W.Va. R. Evid. 613. (See footnote 3) In this case, however, Mr. Mullins' statements were consistent both before and during the appellant's trial. Moreover, Mr. Mullins was subjected to extensive cross examination which covered nearly one hundred pages in the record. Thus, the jury heard all of the evidence concerning Mr. Mullins' prior statements and concluded that the State had proved its case against the appellant beyond a reasonable doubt. Accordingly, there was no merit to the appellant's argument and an evidentiary hearing was not required.
The final issue raised by the appellant in his habeas petition was ineffective assistance of counsel. In Syllabus Point 5, of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court provided: 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. Moreover, as stated in Syllabus Point 6 of Miller:
In reviewing counsel's performance, courts must apply
an objective standard and determine whether, in light of all the
circumstances, the identified acts or omissions were outside the
broad range of professionally competent assistance while at the
same time refraining from engaging in hindsight or
second-guessing of trial counsel's strategic decisions. Thus, a
reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the
case at issue.
See Syllabus Points 1 and 2, Ronnie R. v. Trent, 194 W.Va. 364, 460 S.E.2d 499 (1995).
The circuit court explained in its order denying the appellant habeas relief that the special Prosecutor indicates in his Return On Writ Of Habeas Corpus that there is no fact or evidence contained in the record that would substantiate ineffective assistance of counsel allegation. The circuit court then addressed the appellant's contentions of counsel error which were: that his counsel failed to adequately protect his interests during plea negotiations; that counsel failed to make timely objections as to notes being taken by the father of a prosecution witness; that counsel failed to object to the modified Allen charge given to the jury; and that counsel did not attend meetings where the appellant, pursuant to his plea agreement (later rejected by the circuit court), gave information about the location of evidence. The circuit court explained:
However, these acts or omissions to act on the part of Mr.
Mullins can be viewed as trial tactics taken by a professional
attorney. Nevertheless, because the Strickland test is twofold,
even if Waldron could prove serious errors taken by his counsel,
he still has the burden to affirmatively show prejudice: the
existence of a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
In other words, Waldron has to prove that had it not been for the
errors committed by Mr. Mullins, the outcome of the trial would
have been in his favor, thus planting reasonable doubt in the
minds of the decision-makers regarding his guilt in the
commission of voluntary manslaughter.
The circuit court further expounded:
Ultimately, the inquiry then becomes whether there is a reasonable probability that the jury would have acquitted Waldron but for the errors of Mr. Mullins. The answer to that question would be negative according to the two-prong Strickland test because even if Mr. Mullins's errors were so serious as to satisfy the first prong of the Strickland test, these errors did not prejudice Waldron in denying him a fair trial. In fact, the State had enough evidence to prove Waldron's guilt in the voluntary manslaughter beyond a reasonable doubt, and no reasonable probability existed for the jury to find in his favor, but for errors of his defense counsel.
The circuit court then discussed the overwhelming evidence pointing toward the appellant's guilt of voluntary manslaughter and explained that his allegations of counsel error fail as a matter law under the second prong of Strickland v. Washington, 466 U.S. 668 (1984), because even if the appellant's counsel's performance was deficient, there was not
a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. 466 U.S. at 694.
The appellant's brief lacks any discussion as to any specific way these alleged errors would or even could have led to a different result in this case. Upon reviewing the totality of the record before us, we believe that the circuit court correctly denied habeas relief based upon the claim of ineffective assistance of counsel and that the appellant simply was not able to meet the requirements of Strickland v. Washington, 466 U.S. 668 (1984). Thus, there was no merit to the appellant's argument and an evidentiary hearing was not necessary.
Based upon all of the above, as well as our thorough review of the record, we affirm the circuit court's order.