Opinion
No. 15-1005
09-19-2016
Don G. Galloway, Petitioner Below, Petitioner v. David Ballard, Warden, Mount Olive Correctional Center, Respondent Below, Respondent
(Summers County 12-C-01)
MEMORANDUM DECISION
Petitioner Don G. Galloway, by counsel Paul R. Cassell, appeals the Circuit Court of Mercer County's September 18, 2015, order denying his petition for writ of habeas corpus. The State, by counsel Benjamin F. Yancey III, filed a response in support of the circuit court's order. Petitioner filed a reply and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying habeas relief because his trial counsel was constitutionally ineffective, his sentence was disproportionate, and there was cumulative error.
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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.
In July of 2008, a Summers County grand jury indicted petitioner on two counts of possession with intent to deliver, one count of intimidation of and retaliation against a public officer, three counts of battery on a police officer, and one count of obstructing an officer. Petitioner, by counsel Jason Parmer, filed a motion to suppress the evidence seized by a search warrant on the grounds that the search warrant affidavit was "bare bones, conclusory, and contains false information offered by Deputy James A. Chellis in intentional or reckless disregard of the truth." Following a hearing on petitioner's motion to suppress seized evidence, the circuit court denied his motion finding that the search warrant did not contain false information and contained sufficient information to establish probable cause to search petitioner's residence. Thereafter, the circuit court permitted Mr. Parmer to withdraw as counsel, and appointed attorney Jason Grubb the following month to represent petitioner.
Following a jury trial, petitioner was convicted of one count of possession of a controlled substance with intent to deliver. A recidivist information was filed stating that petitioner had previously been convicted of voluntary manslaughter, possession of a controlled substance with intent to deliver, and third degree sexual assault. On February 24, 2010, the circuit court sentenced petitioner to life as a habitual offender.
Prior to trial, Mr. Grubb filed a motion to sever the possession with intent to deliver charges from the remaining counts in the indictment. Ultimately, the circuit court granted petitioner's motion to sever only the charge of intimidation/retaliation against a public officer.
In September of 2010, Petitioner filed a direct appeal with this Court alleging that Deputy Chellis did not present sufficient evidence within the affidavit or the search warrant itself to establish probable cause thereby making the search of defendant's home illegal and requiring the suppression of all evidence seized as the search violated the Fourth Amendment to the United States Constitution and Article III, Section 6, of the West Virginia Constitution. By ordered entered March 11, 2011, this Court affirmed petitioner's conviction. See State v. Galloway, No. 101185 (W.Va. Mar. 11, 2011)(memorandum decision).
This Court refused petitioner's petition for rehearing. Thereafter, the Supreme Court of the United States denied petitioner's petition for a writ of certiorari. --------
Several years later, petitioner, pro se, filed a motion for a new trial based upon newly-discovered evidence that Juror Andy Ward withheld personal knowledge of the case and committed misconduct by withholding the fact that he had a prior conflict with petitioner following an incident in which Juror Ward and petitioner were using drugs. Ultimately, the circuit court denied petitioner's motion. In 2014, petitioner filed a petition for writ of habeas corpus alleging that he received ineffective assistance of counsel, received a disproportionate sentence, and there was cumulative error. Following an omnibus evidentiary hearing, the circuit court entered an order denying petitioner's petition for writ of habeas corpus. This appeal follows.
This Court reviews a circuit court order 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).
On appeal, petitioner argues that the circuit court erred in denying habeas relief based on his claim that his trial counsel was constitutionally ineffective, his sentence was disproportionate, and cumulative error.
Our review of the record supports the circuit court's decision to deny petitioner post-conviction habeas corpus relief based on errors alleged in this appeal, which were also argued below. Indeed, the circuit court's order includes well-reasoned findings and conclusions as to the assignment of error raised on appeal. Furthermore, petitioner argues that cumulative error in the proceedings below violated his right to due process of law. See Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) (holding that "[w]here the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error."). In light of our rulings on petitioner's other grounds for relief, petitioner's final assignment of error must fail. We have not found numerous errors in the record before us. As such, we reject petitioner's argument under the cumulative error doctrine. 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 assignment of error raised herein and direct the Clerk to attach a copy of the circuit court's September 18, 2015, "Order Denying Writ of Habeas Corpus" to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed. ISSUED: September 19, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Justice Brent D. Benjamin
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