STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

September 2, 2016 

Timothy Stewart, RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS Petitioner Below, Petitioner OF WEST VIRGINIA 

vs) No. 15-0609 (Mercer County 15-C-80) 

Patrick Mirandy, Warden,
 

St. Mary’s Correctional Center,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Timothy Stewart, pro se, appeals the May 29, 2015, order of the Circuit Court of 

Mercer County summarily denying his petition for a writ of habeas corpus. Respondent Patrick 

Mirandy, Warden, St. Mary’s Correctional Center, by counsel David A. Stackpole, filed a 

response,

1 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. 

Petitioner and Gayle Dunn were romantically involved and, prior to February 2, 2013, Ms. 

Dunn was living at petitioner’s residence. On February 2, 2013, petitioner and Ms. Dunn began 

arguing. Ms. Dunn eventually slapped petitioner in the face. Petitioner reacted by hitting Ms. Dunn 

in the back of the head and putting her in a choke hold that caused her to lose consciousness. After 

she regained consciousness, Ms. Dunn packed her things and left. 

1

To the extent that Respondent Mirandy, in his capacity as the warden of St. Mary’s 

Correctional Center, is represented by the West Virginia Attorney General’s Office, we will 

hereinafter refer to respondent as “the State.” 

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After petitioner and Ms. Dunn exchanged text messages, Ms. Dunn returned to petitioner’s 

residence during the night of February 3, 2013, because she did not want to end their relationship 

on “such a bad note.” Petitioner and Ms. Dunn again began arguing. According to Ms. Dunn’s 

police statement,2 petitioner struck her several times. At one point, petitioner held Ms. Dunn down 

and told her that if she left the residence, he would kill her. Ms. Dunn was eventually able to lock 

petitioner in the basement while she called 9-1-1. 

Petitioner freed himself from the basement by using an axe to break down the door. 

Petitioner retrieved a .38 caliber revolver. Petitioner tackled Ms. Dunn as she was trying to leave 

the residence “and fired a single shot in a downward motion by her face.” Petitioner then put the 

gun to Ms. Dunn’s head and told her that “she knew where the next one would be.” Ms. Dunn 

believed that petitioner was trying to recite the Lord’s Prayer to her when the police knocked on 

the residence’s door. Petitioner “got scared when [the police] knocked on the door and hopped up 

and went and hid the gun.” After petitioner got off her, Ms. Dunn unlocked the door and let the 

police inside the residence. 

On June 11, 2013, petitioner was indicted on two felony charges (wanton endangerment 

and attempted first degree murder) and three misdemeanor charges (unlawful restraint, domestic 

battery, and domestic assault) based on the events of February 3, 2013. On August 26, 2013, the 

circuit court held a hearing pursuant to Rule 404(b) of the West Virginia Rules of Evidence as to 

whether evidence of the February 2, 2013, incident where petitioner choked Ms. Dunn into 

unconsciousness would be admissible evidence at petitioner’s trial. The State argued that the 

choking incident showed an intent to kill Ms. Dunn, and Ms. Dunn testified that she felt that the 

February 2, 2013, incident “led up to” the events of February 3, 2013. As the hearing evolved, Ms. 

Dunn gave testimony as to what occurred on February 3, 2013. Ms. Dunn confirmed that after 

firing a shot by her head, petitioner “put the gun back to my head and said you know where the 

next one is going to go” and that that was “right before the police showed up.” 

Petitioner subsequently decided to plead guilty to all counts of the indictment except for 

the attempted first degree murder count. The circuit court took petitioner’s guilty pleas as to 

unlawful restraint, domestic battery, domestic assault, and wanton endangerment on November 6, 

2013. At that hearing, petitioner testified that those guilty pleas represented “what I feel like I’ve 

done” and constituted the reason he was unwilling to plead guilty to attempted murder. After the 

circuit court found that petitioner voluntarily and intelligently pled guilty and deferred sentencing 

on those counts, petitioner’s counsel argued that those counts should not be mentioned at trial on 

the attempted murder charge. In response, the State argued, as follows: 

[THE STATE]: Well, Your Honor, there are . . . there are two acts that the 

State would demonstrative of [petitioner]’s intent to kill Ms. Dunn. One of the 

strangling to unconsciousness [the previous day], the other one is the firing of the 

2

Ms. Dunn’s police statement was relayed to the grand jury through the testimony of 

Sergeant E.T. Pugh of the Princeton, West Virginia, Police Department. 

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firearm into the floor and then putting the firearm to the back of her head and 

telling her to recite the Lord’s Prayer after he told her the next one is coming for 

her head. 

(Emphasis added.). The circuit court took the matter under advisement and scheduled a final 

pretrial conference for November 12, 2013. 

At the beginning of the November 12, 2013, pretrial conference, petitioner’s counsel 

informed the circuit court that petitioner decided to plead guilty to the attempted murder charge. 

As the circuit court had with the previous pleas, the circuit court engaged petitioner in a colloquy 

pursuant to Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975). The circuit court informed 

petitioner that if he went to trial on the attempted murder charge, the State would have to prove that 

he “deliberately and intentionally” tried to kill Ms. Dunn. The circuit court asked petitioner, “Do 

you understand that?” Petitioner answered, “Yes, sir.” The circuit court subsequently inquired 

whether petitioner still desired to enter his guilty plea. Petitioner responded, “Yes, sir.” The circuit 

court then asked petitioner’s counsel if there was any reason that petitioner should not plead guilty 

to attempted first degree murder. Petitioner’s counsel answered, “No, Judge.” 

Immediately thereafter, the circuit court read count two of the indictment, which stated that 

petitioner “deliberately [and] intentionally” tried to kill Ms. Dunn, and asked for petitioner’s plea. 

Petitioner responded, “Guilty.” The circuit court found that there was a factual basis for 

petitioner’s guilty plea given “the evidence the Court’s heard in the suppression hearing.” Next, 

the circuit court inquired whether petitioner had any complaints about his counsel’s performance. 

Petitioner answered, “No, sir.” Finally, the circuit court asked petitioner if he wanted the court to 

accept his guilty plea. Petitioner responded, “Yes, sir.” The circuit court accepted petitioner’s plea 

and adjudged him guilty of attempted first degree murder. 

Subsequently, the circuit court sentenced petitioner to a determinate term of five years of 

incarceration for wanton endangerment and to an indeterminate term of three to fifteen years of 

incarceration for attempted first degree murder. The circuit court also sentenced petitioner on his 

three misdemeanor convictions, but found that those sentences had been satisfied by the time 

petitioner spent incarcerated during the pendency of his case. The circuit court ordered that 

petitioner serve his felony sentences consecutively. 

On March 6, 2015, petitioner filed a petition for a writ of habeas corpus alleging (1) double 

jeopardy; (2) inadequate factual basis for acceptance of petitioner’s guilty plea to attempted first 

degree murder;3 and (3) ineffective assistance of counsel. By an order entered May 29, 2015, the 

3

Petitioner labeled this claim as one based on “actual innocence.” However, we agree with 

respondent that petitioner misused the term “actual innocence.” See State ex rel. Smith v. McBride, 

224 W.Va. 196, 208 n.44, 681 S.E.2d 81, 93 n.44 (2009) (describing “actual innocence” as term of 

art developed in federal jurisprudence). 

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circuit court found no merit to petitioner’s grounds for relief4 and summarily denied his habeas 

petition. 

Petitioner now appeals the circuit court’s May 29, 2015, order denying his habeas petition. 

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 

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 makes two assignments of error: (1) that the circuit court erred in not 

holding an evidentiary hearing on his habeas petition; and (2) that petitioner’s counsel was 

ineffective in advising that there was no reason for petitioner not to plead guilty to attempted 

murder when (a) a conviction on that count was barred by the Double Jeopardy Clause of the 

United States and West Virginia Constitutions5 and (b) an inadequate factual basis existed for the 

circuit court’s acceptance of petitioner’s guilty plea to attempted murder. 

With regard to petitioner’s first assignment of error, we held in Syllabus Point 1 of Perdue 

4

The circuit court’s rulings regarding each claim will be discussed infra. 

5

In Syllabus Points 1 and 2 of State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), we 

held, as follows: 

1. The Double Jeopardy Clause of the Fifth Amendment to the 

United States Constitution consists of three separate constitutional 

protections. It protects against a second prosecution for the same 

offense after acquittal. It protects against a second prosecution for 

the same offense after conviction. And it protects against multiple 

punishments for the same offense. 

2. “The Double Jeopardy Clause in Article III, Section 5 of the West 

Virginia Constitution, provides immunity from further prosecution 

where a court having jurisdiction has acquitted the accused. It 

protects against a second prosecution for the same offense after 

conviction. It also prohibits multiple punishments for the same 

offense.” Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 

S.E.2d 529 (1977). 

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v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973), that 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.” With regard to petitioner’s second assignment of error, we note that, 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): (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. Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). 

We consider whether there was a double jeopardy violation together with whether an 

adequate factual basis existed for petitioner’s guilty plea to attempted murder because petitioner 

makes substantially the same argument with regard to both claims. With regard to double 

jeopardy, petitioner contends that this is a “single gunshot case”6 where a single shot provided the 

factual foundation for both the wanton endangerment charge and the attempted murder charge. 

With regard to his claim that an independent factual basis was lacking for the attempted murder 

charge, petitioner contends that, while he fired the gun by Ms. Dunn’s head and put it back to her 

head, he never fired it a second time. 

The State concedes that the shot fired by Ms. Dunn’s head provided the basis for the 

wanton endangerment charge, but argues that the attempted murder charge had a different factual 

predicate. The State asserts that petitioner committed attempted first degree murder by putting the 

firearm back to Ms. Dunn’s head and telling her to recite the Lord’s Prayer after he told her the 

next one was coming for her head.7 The State further asserts that the only reason that petitioner did 

not complete the crime of first degree murder was that the police knocked on the door and startled 

him. 

We find that the attempted murder charge had a different factual predicate than the wanton 

endangerment charge. We also agree with the circuit court’s determination that Ms. Dunn’s 

testimony at the August 26, 2013, hearing—that petitioner put the gun back to her head and said 

you know where the next one is going to go right before the police showed up—“in conjunction 

with other facts and evidence of the record form a sufficient factual basis for the [circuit court] to 

[have accepted] the plea to attempted murder.” Similarly, there was no double jeopardy violation 

because an independent basis existed for finding that petitioner intended to kill Ms. Dunn in that he 

put the gun back to her head and would have completed the crime “had the police not responded so 

6

See State v. Wright, 200 W.Va. 549, 553, 490 S.E.2d 636, 640 (1997) (finding that, given 

the circumstances of that case, it would have been impossible for defendant to commit malicious 

assault with single gunshot without committing wanton endangerment with a firearm). 

7

Petitioner contends that the State never made this argument in his criminal case. However, 

we find that the State argued that petitioner putting the gun back to Ms. Dunn’s head provided the 

factual predicate for the attempted murder charge at the November 6, 2013, hearing. 

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quickly to the victim’s 9-1-1 call.” Given that petitioner’s substantive arguments lack merit, we 

determine that the circuit court did not err in finding that petitioner’s counsel was not ineffective in 

advising that there was no reason for petitioner not to plead guilty to attempted murder and in 

finding that no evidentiary hearing “[was] needed to resolve [petitioner’s] issues.” Therefore, we 

conclude that the circuit court did not err in denying petitioner’s habeas petition. 

For the foregoing reasons, we affirm the circuit court’s May 29, 2015, order summarily 

denying petitioner’s petition for a writ of habeas corpus. 

Affirmed. 

ISSUED: September 2, 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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