SER Willard David Hutchinson v. David Ballard, Warden

• Court: West Virginia Supreme Court
• Decided: April 16, 2013
• Docket: 11-1639
• Status: Published

Opinion

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia ex rel. Willard David FILED Hutchinson, Petitioner Below, Petitioner April 16, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 11-1639 (Cabell County 03-C-460) OF WEST VIRGINIA

David Ballard, Warden, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Willard David Hutchinson, by counsel, R. Stephen Jarrell, appeals the circuit court’s order entered October 10, 2010, denying his petition for writ of habeas corpus. Warden Ballard1 of Mount Olive Correctional Center, by counsel Laura Young, filed a response in support of the circuit court’s order.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was convicted of stabbing Linda Rigney to death and then stabbing her daughter, who tried to protect her mother. Ms. Rigney’s son entered into a physical altercation with petitioner, punching petitioner’s face. When petitioner was brought back to the scene, petitioner had blood on his hands and face. Serology reports of blood found in the house were part of the evidence used at trial. Petitioner was convicted of one count of murder and one count of unlawful wounding, in the Circuit Court of Cabell County on September 6, 2001, and later sentenced to life in prison without mercy. Petitioner’s appeal for the conviction was refused by this Court on April 9, 2003.

On May 30, 2003, petitioner filed the instant petition for writ of habeas corpus but he never acted after receiving an extension of time to file an amended petition. In January of 2007, pursuant to In re: Renewed Investigation of the State Police Crime Laboratory Serology Division, 219 W. Va. 408, 633 S.E.2d 762 (2006) (“Zain III”), petitioner was granted another extension of time to file his amended petition. In June of 2008, the circuit court ordered the blood swabs be re­ tested. Testing was delayed because some of the swabs were missing for several months but the 1 Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have replaced the respondent party’s name with Warden David Ballard. The initial respondent on appeal, Thomas L. McBride, is no longer the warden of Mount Olive Correctional Complex. 1

State eventually found them in a box when cleaning out an evidence room. Petitioner’s amended petition raised two issues: that the serology reports admitted at trial were faulty, and that petitioner’s trial counsel was ineffective for thirteen different reasons. Specifically, petitioner alleged that the serology reports showed different population frequencies and that the evidence may have been damaged or tampered with, since it was missing for several months. Additionally, petitioner alleged thirteen different issues relating to his trial counsel’s performance. The circuit court denied his petition on both counts. The circuit court reasoned that petitioner’s claims of ineffective assistance of counsel failed because any errors would not have prejudiced petitioner because the State had enough evidence to prove petitioner’s guilt beyond a reasonable doubt. The circuit court further reasoned that petitioner’s claim of differences between the testing done for trial and the testing done for his habeas hearings can be explained by degradation over time and smaller sample sizes, and that the evidence remained in the locked evidence room and was clearly marked, so the blood evidence has the same value it had at trial. Petitioner now appeals the denial of his habeas corpus petition below.

On appeal, petitioner argues the circuit court abused its discretion. Specifically, in regards to the serology tests, he argues that the differences between testing in 2001 and 2009 cannot be explained by sample size and degradation. The State responds that petitioner provided no substantiation for his assertions about the differences between the blood tests, that the misplaced evidence never left respondent’s control, and that petitioner never asserted how the evidence issues would have impacted him, even if there was an error at trial. Second, in regards to his trial counsel’s performance, petitioner argues several errors, and that the circuit court’s application of the second prong of Strickland v. Washington, 466 U.S. 668 (1984), requiring that “but for counsel’s unprofessional errors, the result of the proceeding would have been different[,]” was erroneously transformed into a “sufficiency of the evidence challenge.” The State responds that the circuit court did exactly what Strickland envisioned by examining the likely result of the case in the case where counsel acted differently and determined that the evidence supported petitioner’s guilt beyond a reasonable doubt. Finally, petitioner re-asserts eighteen issues that were denied below, but offers no reasons for finding that the circuit court abused its discretion in so doing.

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.

Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).

The Court has carefully considered the merits of each of petitioner’s arguments as set forth in his petition for appeal. The circuit court did not abuse its discretion in denying petitioner’s habeas corpus petition, because petitioner failed to show how he would be affected by a different result. Finding no error in the denial of habeas corpus relief, the Court incorporates and adopts the circuit court’s detailed and well-reasoned order dated October 10, 2010, insofar as it

addresses the assignments of error appealed herein, and directs the Clerk to attach the same hereto.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: April 16, 2013

CONCURRED IN BY:

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