STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS



### FILED

Steven Dukes, Petitioner Below, Petitioner 

### April 15, 2016

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA vs) No. 15-0382 (Marion County 15-C-27)

David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Steven Dukes, pro se, appeals the April 1, 2015, order of the Circuit Court of Marion County summarily dismissing his petition for writ of habeas corpus. Respondent David Ballard, Warden, Mt. Olive Correctional Complex, by counsel Nic Dalton, filed a response, and 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.

On June 4, 2012, petitioner was indicted on one count of Possession of a Controlled
Substance (Heroin) with Intent to Deliver. Following a two-day trial, a jury found petitioner guilty of the charge. The State filed a recidivist information on September 21, 2012, seeking
enhancement of petitioner’s sentence based on two prior convictions: a December 20, 2000, felony conviction on one count of possession of a deadly weapon by a prohibited person and an April 30,
1992, felony conviction out of the State of North Carolina on one count of Possession of Cocaine.
At petitioner’s recidivist trial, a probation officer and a sheriff’s deputy gave testimony that petitioner also had prior felony convictions out of New York and Maryland, which were not
charged in the September 21, 2012, information. In a motion for a new recidivist trial, petitioner
argued that he was prejudiced from the witnesses’ testimony and further that the probation
officer’s testimony—based on his statements made to the probation officer during the presentence

1investigation for the triggering offense—should have been excluded because of an alleged

violation of his Miranda rights. Following a March 19, 2013, hearing, the circuit court denied
petitioner’s motion for a new recidivist trial by order entered April 2, 2013.

Petitioner appealed the April 2, 2013, order to this Court, reiterating his arguments that the testimony about prior convictions not mentioned in the recidivist information was unduly
prejudicial and that his statements to the probation officer should have been excluded. In State v.

Dukes , No. 13-0649, 2014 WL 1672948, at *3 (W.Va. April 25, 2014) (memorandum decision),
we rejected petitioner’s contentions, finding that “the information regarding petitioner’s prior
convictions is . . . a matter of public record” and that his cooperation with the probation officer
during the pre-sentence investigation was “not mandatory.” Accordingly, this Court affirmed the

circuit court’s denial of a motion for a new recidivist trial. Id.

On January 28, 2015, petitioner filed a petition for writ of habeas corpus, alleging that (1)
the circuit court erred in admitting records of petitioner’s North Carolina conviction, which were
not properly authenticated; (2) the circuit court erred in admitting testimony concerning prior
convictions not charged in the recidivist information; and (3) counsel was ineffective by not
objecting to that testimony. With regard to petitioner’s first ground for relief, the circuit court
determined that the records of petitioner’s North Carolina conviction were self-authenticating pursuant to Rule 902(4) of the West Virginia Rules of Evidence. The circuit court found that those
records were “stamped on every page as ‘a true copy’ of the records of the Clerk of the Superior Court of Cabarrus County[, North Carolina,] and the stamp is accompanied by a signature of a
deputy clerk of that Court.” Accordingly, the circuit court concluded that petitioner was not
entitled to relief on this ground.

The circuit court addressed grounds two and three together, and noted that “counsel thoroughly litigated this issue.” The circuit court found that “[t]he record reveals that [petitioner’s]

counsel did in fact object” to the testimony concerning the prior convictions. (Emphasis in original.) The circuit court further found that counsel’s refusal of a curative instruction was based
on trial strategy because, as explained in the motion for a new trial, counsel did not “want to
reinforce or redraw attention to these statements.” The circuit court noted that, in its charge to the jury, “the jury was expressly instructed that their decision should be based only on the predicate
convictions enumerated in the recidivist information.” Accordingly, the circuit court concluded
that petitioner was not entitled to relief on either of these grounds of relief and summarily
dismissed the habeas petition without an evidentiary hearing or appointment of counsel.

Petitioner now appeals the circuit court’s April 1, 2015, summary dismissal order. We apply the following standard of review in habeas appeals:

In reviewing challenges to the findings and conclusions of the circuit court

2in 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, 418, 633 S.E.2d 771, 772 (2006). Pursuant to Syllabus Point 1 of Perdue v. Coiner , 156 W.Va. 467, 194 S.E.2d 657, 658 (1973), a circuit court may deny a habeas petition without an evidentiary hearing and appointment of counsel “if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court’s satisfaction that the petitioner is entitled to no relief.”

On appeal, petitioner first argues that the records of his North Carolina conviction could not be authenticated through the use of the self-authenticating provisions of Rule 902(4) of the West Virginia Rules of Evidence. We disagree. As a general principle, court documents which are certified by their custodian constitute “self[-]authenticating documents under the West Virginia Rules of Evidence[.]” State v. McCraine , 214 W.Va. 188, 197, 588 S.E.2d 177, 186 (2003), overruled on other grounds

, State v. Herbert , 234 W.Va. 576, 767 S.E.2d 471 (2014) (citing Rule 902(4), W.V.R.E.). While petitioner contends that additional authentication is required for out-of-state records, in Syllabus Point 4 of State v. Hulbert , 209 W.Va. 217, 218, 544 S.E.2d 919, 920 (2001)—which is relied upon by petitioner—we held, in pertinent part, that the State may introduce a properly authenticated copy of the judgment of conviction to prove the fact of an out-of-state conviction for the purpose of enhancing a West Virginia defendant’s sentence. In

Hulbert , the out-of-state records were “authenticated by the stamped certification of the Clerk of the District Court of Kalamazoo County, Michigan.” Id. at 224-25, 544 S.E.2d at 926-27. Similarly, in the instant case, the circuit court found that the records of petitioner’s North Carolina conviction were authenticated by the fact that they were “stamped on every page as ‘a true copy’ of the records of the Clerk of the Superior Court of Cabarrus County[, North Carolina,] and the stamp is accompanied by a signature of a deputy clerk of that Court.” Therefore, we conclude that the circuit court did not err in determining that the records of the North Carolina conviction were authenticated pursuant to Rule 902(4) and in rejecting petitioner’s first ground for relief. 1

Second, petitioner repeats his arguments that the circuit court erred in admitting testimony concerning prior convictions not charged in the recidivist information and that counsel was

1 We note that, in Hulbert , the defendant’s sentence could not be increased pursuant to the enhancement statute at issue there, West Virginia Code § 61-2-28(c) (now (d)), because of “the variances between the statutes of Michigan and West Virginia and the resulting need to prove that the factual predicate underlying the Michigan convictions would similarly support a conviction under West Virginia law.” 209 W.Va. at 225, 544 S.E.2d at 925. In contrast, all that the life recidivist statute, W.Va. Code § 61-11-18(c), requires is that the defendant has been “twice before convicted” of a felony offense. Petitioner does not dispute that his North Carolina conviction was for a felony offense.

3ineffective by not objecting to that testimony. 2 Like the circuit court, we address these issues together. Pursuant to the post-conviction habeas corpus statute, a habeas petitioner is not entitled to relief if he raises grounds which have been “previously and finally adjudicated.” W.Va. Code § 53-4A-7(a). Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings similarly provides that “[t]he court shall prepare and enter an order for summary dismissal of the petition if the contentions in fact or law relied upon in the petition have been previously and finally adjudicated.” We find that petitioner’s argument that the circuit court erred in admitting testimony concerning prior convictions not charged in the recidivist information was previously and finally adjudicated in our memorandum decision in Dukes where we stated that petitioner’s previous convictions were “a matter of public record.” 2014 WL 1672948, *3. 3 We further find that, because petitioner’s ineffective assistance claim is derivative of his claim that admission of that testimony was unduly prejudicial, the derivative claim cannot succeed where we have determined that the underlying claim has no merit. See Syl. Pt. 5, State v. Miller , 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995) (prejudice prong of Strickland standard must be satisfied in order to establish ineffective assistance of counsel).

Lastly, petitioner raises additional challenges to his recidivist conviction that he failed to raise in his habeas petition. Respondent asserts that we should decline to address petitioner’s added arguments because they were not presented to the circuit court. See Syl. Pt. 2, Sands v. Security

Trust Co. , 143 W.Va. 522, 102 S.E.2d 733, 734 (1958) (“This Court will not pass on a non[-]jurisdictional question which has not been decided by the trial court in the first instance.”). Petitioner asks that we address his additional issues under the plain error doctrine. We decline to do so. The circuit court summarily dismissed petitioner’s petition without holding a hearing or appointing counsel; thus, the doctrine of res judicata will not bar petitioner from filing successive habeas petitions. See Syl. Pt. 2, Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606, 608 (1981). Petitioner may raise his other claims in a subsequent petition provided that he has adequate factual support to do so. 4 Therefore, we conclude that the circuit court did not abuse its discretion in summarily dismissing petitioner’s habeas petition.

For the foregoing reasons, we affirm the circuit court’s April 1, 2015, order summarily dismissing petitioner’s petition for writ of habeas corpus.

Affirmed.

2 We note that the circuit court found that counsel made objections.

3 Pursuant to Rule 21(a) of the West Virginia Rules of Appellate Procedure, our

memorandum decision in Dukes constitutes a decision on the merits.

4 Petitioner also argues that the cumulative effect of the alleged errors made his recidivist trial unfair. However, as respondent correctly points out, because we find that no error occurred, the cumulative error doctrine does not apply.

4ISSUED: April 15, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum

Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II

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