STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Rickey D. Morgan, FILED 

Petitioner Below, Petitioner March 24, 2017 

RORY L. PERRY II, CLERK 

vs) No. 16-0366 (McDowell County 16-C-9) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Karen Pszczolkowski, Warden, 

Northern Correctional Facility, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Rickey D. Morgan, pro se, appeals the January 29, 2016, order of the Circuit 

Court of McDowell County denying his petition for a writ of habeas corpus. Respondent Karen 

Pszczolkowski, Warden, Northern Correctional Facility, by counsel Nic Dalton, filed a response in 

support of the circuit court’s order. Petitioner filed a reply. 

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. 

Petitioner was indicted for murder in June of 1988. On October 6, 1988, petitioner pled 

guilty to first-degree murder pursuant to a plea agreement, which provided that the State “will 

recommend to the [c]ourt that the [c]ourt make a recommendation of mercy when it sentences 

[petitioner].” The parties’ plea agreement stated that petitioner understood the penalty and 

understood the recommendation of mercy. The circuit court accepted petitioner’s guilty plea and 

sentenced him to a life term of incarceration with the possibility of parole after ten years.1 The 

1

At the time of petitioner’s conviction, a defendant convicted of first-degree murder with a 

recommendation of mercy was required to serve a minimum term of ten years before being eligible 

for parole. The minimum term has since been increased to fifteen years. See 1994 W.Va. Acts ch. 

35 (amending W.Va. Code § 62-3-15). 

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circuit court’s October 11, 1988, order found that petitioner was advised of the nature and 

consequences of his plea and that it was knowingly, intelligently, and voluntarily entered. The 

court’s order noted that it was the court’s “personal recommendation” that petitioner never be 

paroled. 

On July 7, 2005, in Case No. 05-C-186-S, petitioner filed a petition for a writ of habeas 

corpus asserting claims that his trial attorney did not provide effective assistance and that the West 

Virginia Parole Board erred in denying him parole. The circuit court appointed habeas counsel to 

represent petitioner and held a hearing on January 19, 2006, for the purpose of determining 

whether his allegations were sufficient to warrant further factual development. Following the 

hearing, the circuit court summarily denied habeas relief based on petitioner’s guilty plea. The 

circuit court found that, prior to accepting the guilty plea, the court engaged petitioner in a 

colloquy pursuant to Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), in order to ensure 

that his plea was knowingly, intelligently, and voluntarily entered. Petitioner’s habeas attorney 

appealed the circuit court’s January 19, 2006, order arguing that the circuit court erred in 

summarily denying habeas relief. On March 17, 2007, this Court refused petitioner’s appeal. 

On August 14, 2007, in Case No. 07-C-238, petitioner filed a habeas petition raising the 

same claims on which relief was denied in Case No. 05-C-186-S, but adding the claim that 

petitioner’s guilty plea was not knowingly, intelligently, and voluntarily entered. On December 

10, 2007, the circuit court denied habeas relief on the ground that it previously decided the issues 

raised by petitioner in Case No. 05-C-186-S. Petitioner appealed the circuit court’s December 10, 

2007, order. On June 17, 2008, this Court refused petitioner’s appeal. 

On January 26, 2016, in Case No. 16-C-9, petitioner filed a habeas petition alleging that his 

previous habeas attorney was ineffective in failing to raise the following claims: (1) that the 

indictment charging petitioner with murder was invalid because the jury commissioners who 

selected the grand jury that indicted him were not duly appointed; (2) that the assistant prosecuting 

attorney who negotiated the parties’ plea agreement did not have the authority to do so because he 

was legally ineligible to hold that position; and (3) that the circuit court breached the plea 

agreement petitioner had with the State by sentencing him to a life term of incarceration without 

the possibility of parole. On January 29, 2016, the circuit court denied habeas relief on the ground 

that there were petitions on which the court “previously ruled.” The circuit court specifically 

referenced Case No. 07-C-238, in which petitioner’s petition stated that he “became eligible for 

parole in 1998.” 

On April 15, 2016, petitioner filed an appeal of the circuit court’s January 29, 2016, order 

denying his habeas petition. On both June 13, 2016, and August 25, 2016, petitioner filed a motion 

for appointment of appellate counsel. We have deferred ruling on those motions and will now 

address them with the merits of petitioner’s appeal. 

We apply the following standard of review in habeas 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 

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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). 

On appeal, petitioner concedes that, in order to obtain habeas relief, he must show that an 

exception to the doctrine of res judicata, as enunciated by this Court in Losh v. McKenzie, 166 

W.Va. 762, 277 S.E.2d 606 (1981), applies to his case. In syllabus point 4 of Losh, we held that a 

prior habeas proceeding is res judicata as to all matters raised and as to all matters known, or which 

with reasonable diligence could have been known, but that a habeas petitioner “may still petition 

the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus 

hearing . . . or a change in the law, favorable to the applicant, which may be applied retroactively.” 

166 W.Va. at 762-63, 277 S.E.2d at 608. Respondent asserts that the precedents on which 

petitioner relies for his claims were not recently decided and that, while petitioner quotes 

extensively from those decisions, he fails to explain how they apply to his case. Respondent 

argues, therefore, that petitioner’s present claims are frivolous and that his habeas attorney had no 

obligation to raise such claims. We agree with respondent. 

In West Virginia, claims of ineffective assistance of counsel are governed by the 

two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984): (a) counsel’s 

performance was deficient under an objective standard of reasonableness; and (b) 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, 6, 459 S.E.2d 114, 117 (1995). 

Petitioner contends that his habeas attorney was ineffective in failing to raise the following claims: 

(1) that the indictment charging petitioner with murder was invalid because the jury 

commissioners who selected the grand jury that indicted him were not duly appointed; (2) that the 

assistant prosecuting attorney who negotiated the parties’ plea agreement did not have the 

authority to do so because he was legally ineligible to hold that position; and (3) that the circuit 

court breached the plea agreement petitioner had with the State by sentencing him to a life term of 

incarceration without the possibility of parole. Taking the last issue first, we find that the record 

unequivocally establishes that the circuit court accepted the State’s recommendation, provided for 

in the parties’ agreement, to sentence petitioner to a life term of incarceration with the possibility 

of parole. Therefore, we conclude that petitioner’s claim that he is not eligible for parole is 

frivolous. 

Petitioner bases his second claim that counsel for the State did not have the authority to 

negotiate the plea agreement in his case on our decision in Carr v. Lambert, 179 W.Va. 277, 367 

S.E.2d 225 (1988). In Carr, we held that the assistant prosecuting attorney in petitioner’s criminal 

case, Sid Bell, was ineligible to serve as a member of the McDowell County Board of Education 

for however long he remained an assistant prosecutor. Id. at 281, 367 S.E.2d at 229. As respondent 

points out, petitioner fails to explain how Attorney Bell’s career options invalidated the plea 

agreement in his case. We note that we subsequently distinguished Carr in State v. Marci, 199 

W.Va. 696, 702, 487 S.E.2d 891, 897 (1996), on the ground that, in many situations, an assistant 

prosecutor is an employee rather than a public officer given that the “constitutionally created” 

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office belongs to the elected Prosecuting Attorney. (internal quotations and omissions omitted). As 

we held in syllabus point 2 of State ex rel. Preissler v. Dostert, 163 W.Va. 719, 260 S.E.2d 279 

(1979), the West Virginia Constitution invests the Prosecuting Attorney with the “sovereign power 

of the State.” Given that petitioner fails to allege that the Prosecuting Attorney was disqualified 

from office, we conclude that his claim that counsel for the State did not have the authority to 

negotiate the plea agreement is frivolous. 

With regard to petitioner’s third claim, petitioner notes the documentation attached to his 

habeas petition showing that the jury commissioners were duly appointed at the time of his 

indictment, but nevertheless alleges that their appointments were improper because that 

documentation is incomplete. As petitioner notes, in syllabus point 1 of State ex rel. Burgett v. 

Oakley, 155 W.Va. 276, 184 S.E.2d 318 (1971), we held that an indictment returned by a grand 

jury selected by improperly appointed jury commissioners was void.2 

More specifically, petitioner states that there is an order of appointment with regard to one 

jury commissioner and an oath of office signed by the other jury commissioner. Petitioner 

contends that there should be an order of appointment and oath of office for each commissioner. In 

syllabus of State ex rel. Smith v. Boles, 150 W.Va. 1, 146 S.E.2d 585 (1965), we held, as follows: 

There is a presumption of regularity of court proceedings that remains until 

the contrary appears, and the burden is on the person who alleges such irregularity 

to show it affirmatively; and where an order of a court of record is merely silent 

upon any particular matter, it will be presumed, notwithstanding such silence, that 

such court performed its duty in every respect as required by law[.] 

Given the presumption of regularity of court proceedings, we find that, because the record includes 

one of the documents for each of the commissioners, petitioner has not met his burden of showing 

irregularity in the commissioners’ appointments. Therefore, we conclude that this claim lacks 

merit. 

Given that none of petitioner’s present claims have merit, we find that his habeas attorney 

was not ineffective in failing to raise those claims. Therefore, we conclude that the circuit court did 

not abuse its discretion in denying petitioner’s habeas petition. Finally, given that the circuit court 

correctly denied petitioner’s habeas petition, we deny petitioner’s motions for appointment of 

appellate counsel pursuant to West Virginia Code § 53-4A-4(a), which provides that such motions 

in habeas appeals shall be denied when “the grounds assigned therefor are without merit or are 

frivolous.” 

2

We note that the functions of jury commissioners are now performed by the circuit clerk, 

under the direction of the circuit court, pursuant to West Virginia Code §§ 52-1-9 to -12. See also 

W.Va. Code § 52-2-2 (providing that provisions governing petit juries also govern grand juries). 

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For the foregoing reasons, we affirm the circuit court’s January 29, 2016, order denying 

petitioner’s petition for a writ of habeas corpus. 

Affirmed. 

ISSUED: March 24, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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