STATE OF WEST VIRGINIA
 
 

SUPREME COURT OF APPEALS
 
 

FILED 

Antonio Prophet, 

Petitioner Below, Petitioner 

June 21, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 15-1092 (Berkeley County 15-C-66) 

David Ballard, Warden,
 
 

Mount Olive Correctional Complex,
 
 

Respondent Below, Respondent
 
 

MEMORANDUM DECISION 

Petitioner Antonio Prophet, pro se, appeals three orders of the Circuit Court of Berkeley 

County. In the first order, entered February 12, 2015, the circuit court (a) found that petitioner’s 

pro se petition was “not sufficient” for a fair adjudication of his grounds for relief; (b) appointed 

habeas counsel to file an amended petition; and (c) preserved petitioner’s objections to the rulings 

therein. In the second order, entered June 24, 2015, the circuit court summarily dismissed 

twenty-two of the grounds raised by petitioner in his habeas proceeding and directed respondent to 

file an answer to his remaining claims.1 In the third order, entered October 28, 2015, the circuit 

court disposed of petitioner’s ineffective assistance of counsel claims and denied his petition for a 

writ of habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex, 

by counsel Cheryl K. Saville, 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 orders is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

1

The circuit court’s February 12, 2015, and June 24, 2015, orders are under appeal because, 

when the last order disposing of the last of all claims is appealed, “[that] appeal brings with it all 

prior orders.” Riffe v. Armstrong, 197 W.Va. 626, 637, 477 S.E.2d 535, 546 (1996), modified on 

other grounds, Moats v. Preston Cnty. Comm’n, 206 W.Va. 8, 521 S.E.2d 180 (1999). 

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In 2012, a Berkeley County jury convicted petitioner on two counts of first degree murder 

and one count of first degree arson following an apartment fire that killed petitioner’s girlfriend 

and her three-year-old son. The jury did not recommend mercy on either of the murder 

convictions. Accordingly, the circuit court sentenced petitioner to two life terms of incarceration 

without the possibility of parole for the murder convictions, and to a determinate term of twenty 

years of incarceration for the arson conviction, to be served consecutively. 

Petitioner appealed his convictions which this Court addressed in State v. Prophet, 234 

W.Va. 33, 762 S.E.2d 602, cert. denied, __ U.S. __, 135 S.Ct. 683, 190 L.Ed.2d 396 (2014), 

raising the following assignments of error: (1) insufficient evidence; (2) improper cross 

examination of petitioner regarding a novel written by him; (3) improper comments by the 

prosecutor on petitioner’s post-arrest silence; (4) erroneous refusal to give an instruction proffered 

by petitioner; (5) prosecutor’s use of allegedly perjured testimony; (6) prosecutorial misconduct; 

and (7) judicial misconduct. This Court rejected the assignments of error and affirmed petitioner’s 

convictions. 234 W.Va. at 40-47, 762 S.E.2d at 609-16. 

On February 5, 2015, petitioner filed a petition for a writ of habeas corpus. By order 

entered February 12, 2015, the circuit court (a) found that petitioner’s pro se petition was “not 

sufficient” for a fair adjudication of his grounds for relief; (b) appointed habeas counsel pursuant 

to Rule 4(b) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings 

(“habeas rules”) to file an amended petition; and (c) preserved petitioner’s objections to the rulings 

therein. Habeas counsel filed petitioner’s amended petition on May 12, 2015, and included a 

request that the circuit court consider petitioner’s pro se petition as if it were “incorporate[d] by 

reference.”2 

The circuit court entered its June 24, 2015, order that summarily dismissed twenty-two of 

petitioner’s grounds for relief. First, the circuit court dismissed petitioner’s claim that, in essence, 

asked the court to effectively reverse this Court’s decision in Prophet for allegedly erroneous 

rulings therein. 

Second, the circuit court found that petitioner waived the following claims because both 

grounds were capable of being raised in his criminal appeal, but were not: (1) undue media 

coverage influenced the jury; and (2) the trial court erred in denying his motions to strike two 

jurors for cause. 

Next, the circuit court found the following claims were previously and finally adjudicated 

in Prophet: (1) insufficient evidence; (2) improper questioning by the prosecutor regarding 

petitioner’s post-arrest silence; (3) erroneous failure to exclude evidence of petitioner’s novel; (4) 

prosecutor’s use of allegedly perjured testimony; (5) erroneous refusal to give an instruction 

proffered by petitioner; and (6) prosecutorial misconduct. 

2

Based on our review of the record, we reject petitioner’s claim that the circuit court did not 

give proper consideration to his pro se petition. 

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Fourth, the circuit court dismissed the following claims pursuant to Rule 4(c) of the habeas 

rules because petitioner did not support those grounds with “adequate factual support”: (1) judicial 

misconduct; (2) mental competency at the times of the offenses; (3) mental competency to stand at 

trial; (4) suppression of exculpatory evidence; (5) prosecutorial falsification of transcript; (6) lack 

of preliminary hearing; (7) unfair grand jury composition and procedure; (8) defective indictment; 

(9) improper venue; (10) undue pre-indictment delay; (11) refusal to subpoena witnesses; (12) 

refusal to disclose witness notes following the witness’s testimony; and (13) improper use of 

informants. 

Finally, the circuit court ordered respondent to file an answer and respond to petitioner’s 

claims of ineffective assistance of counsel and that he should receive a new trial because of the 

cumulative effect of various alleged instances of ineffective assistance. 

Respondent filed an answer on September 21, 2015. Thereafter, the circuit court entered its 

October 28, 2015, order. The circuit court found that it had been “fully briefed” and that an 

evidentiary hearing “would not aid the [c]ourt” in adjudicating petitioner’s ineffective assistance 

claims. The circuit court determined that neither petitioner’s trial counsel nor his appellate counsel 

were ineffective. Accordingly, the circuit court denied petitioner’s habeas petition.3 

Petitioner appeals the circuit court’s denial of habeas relief. We apply the following 

standard of review in habeas cases: 

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). 

Rule 4(c) of the habeas rules provides, as follows: 

The petition shall be examined promptly by the judge to whom it is 

assigned. The 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 or waived. The court’s summary dismissal order 

shall contain specific findings of fact and conclusions of law as to the manner in 

which each ground raised in the petition has been previously and finally 

3

Petitioner assigns error to the circuit court’s failure to address the cumulative effect of 

various alleged instances of ineffective assistance. Respondent counters that the circuit court had 

no reason to address that issue given its finding that petitioner did not prove any of the alleged 

instances of inadequate representation. We agree and find that the circuit court had no need to 

address the cumulative error doctrine. 

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adjudicated and/or waived. If the petition contains a mere recitation of grounds 

without adequate factual support, the court may enter an order dismissing the 

petition, without prejudice, with directions that the petition be refiled containing 

adequate factual support. The court shall cause the petitioner to be notified of any 

summary dismissal. 

See also Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (holding that a circuit 

court may deny a habeas petition without a hearing “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.”). 

We find that the circuit court’s February 12, 2015, June 24, 2015, and October 28, 2015, 

orders adequately resolve all issues raised by petitioner in his habeas petition except for the 

following two issues which we now address. First, petitioner contends that the circuit court 

violated his constitutional right to represent himself, noting that throughout his habeas proceeding, 

he stated a preference to proceed pro se. “The rule in West Virginia is that parties must speak 

clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever 

to hold their peace.” State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 

(1996). We find that despite his stated preference, petitioner opposed a motion by his attorney to 

withdraw as habeas counsel on the ground that allowing the attorney to withdraw would unduly 

delay his habeas proceeding. Petitioner also disputed his attorney’s assessment that the 

attorney-client relationship was irreparably broken because he believed that contact between them 

had been “respectful and cordial.” Thereafter, habeas counsel withdrew the motion and continued 

her representation of petitioner. Given that petitioner took inconsistent positions to whether he 

should be represented by an attorney, we conclude that petitioner waived his objection to the 

circuit court’s appointment of habeas counsel. 

Second, petitioner contends that our decision in Prophet did not address provisions of the 

United States Constitution and, instead, resolved that appeal solely based on provisions of the 

West Virginia Constitution. Respondent counters that the circuit court correctly determined that 

the relevant claims were fully and finally adjudicated in Prophet. We agree with respondent. When 

we rendered our decision in Prophet, we clearly considered both the United States and West 

Virginia Constitutions. For example, in addressing petitioner’s claim that the prosecutor 

improperly commented on his post-arrest silence, we discussed the distinction between prearrest 

silence and post-arrest silence given that “impeachment by use of prearrest silence does not violate 

the Fourteenth Amendment [to the United States Constitution].” Prophet, 234 W.Va. at 43, 762 

S.E.2d at 612 (quoting Jenkins v. Anderson, 447 U.S. 231, 240 (1980)) (Internal quotations and 

other citations omitted.). With regard to those issues under which only our own decisions are 

mentioned, we clearly considered the underlying principles of federal constitutional law. See 

Adkins v. Leverette, 161 W.Va. 14, 19-20, 239 S.E.2d 496, 499 (1977) (noting that “a state may not 

interpret its constitutional guarantee . . . below the federal [constitutional] level”). Therefore, we 

conclude that the circuit court did not err in finding that our decision in Prophet fully and finally 

adjudicated all issues raised therein. 

Having reviewed the circuit court’s February 12, 2015, “Order Appointing Counsel and 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Directing Counsel for Petitioner to File An Amended Petition and Completed [Losh] List,”4 June 

24, 2015, “Order Summarily Dismissing Certain Grounds and Ordering Respondent to Answer,” 

and October 28, 2015, “Order Denying Petition,” we hereby adopt and incorporate the circuit 

court’s well-reasoned findings and conclusions as to all other issues raised by petitioner in this 

appeal. The Clerk is directed to attach copies of the circuit court’s February 12, 2015, June 24, 

2015, and October 28, 2015, orders to this memorandum decision. We conclude that the circuit 

court did not abuse its discretion in denying petitioner’s petition for a writ of habeas corpus.5 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 21, 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 

4

See Losh v. McKenzie, 166 W.Va. 762, 768-770, 277 S.E.2d 606, 611-12 (1981). 

5

Petitioner may raise those grounds dismissed by the circuit court pursuant to Rule 4(c) of 

the habeas rules in a subsequent petition provided that he supplies adequate factual support for 

those claims in accordance with that rule. However, we find that the circuit court overlooked that 

petitioner alleged judicial misconduct in Prophet. We rejected that assignment of error, finding 

that petitioner’s accusations of bias were “frivolous.” 234 W.Va. at 46, 762 S.E.2d at 616. 

Therefore, we find that petitioner may not re-raise the issue of judicial misconduct because that 

issue was previously and finally adjudicated by our decision in Prophet. 

5
 
( 

IN THE CIRCUIT COURT OF BERKELEY COUNTY, WEST VIRGINIA 

STATE OF WEST VIRGINIA ex reI., 

ANTONIO PROPHET, ..,.::: 

Petitioner, ;'3 ~ :JJ l~·l 14.... 

v. CIVIL CASE NO. 15-Cji i§ i1?i ....... (-} r'fl 


JlJDGE LORENSEN ~ c.::r 

DAVID BALLARD, Warden, . fin N ==1fT1 - ,--< Mount Olive Correctional Complex, !TJ :z ::l: """ r-' '" 0 Respondent. eN 00 ;;;c:: r " ;::0;:2: ~ ~ --{ 

ORDER APPOINTING COUNSEL AND DIRECTING COUNSEL F~ "', 

PETITIONER TO FILE AN AMENDED PETITION AND COMPLETED LOSB LIST .... " .~ -. =-'-. 

TIlls matter came before the Court pursuant to a Pro Se petition for writ ofhabeas corpus. 

After reviewing Petitioner's Petition Under W. Va. Code §53-4A-l for Writ ofBabeas Corpus, 

the Court withholds granting a hearing until receiving an Amended Petition, for all habeas 

( COlpUS claims, filed by counsel. 

If, upon initial review of the petition and any exhibits in support 

thereof, the court determines that the petitioner may- have grounds 

for relief but the petition, as filed, is not sufficient for the court to 

conduct a fillr adjudication ofthe matters raised in the petition, the 

court shall appoint an attorney to represent the petitioner's claims 

in the matter, provided that the petitioner qualifies for the 

appointment of counsel under Rule 3(a). The court may order 

appointed counsel to file an amended petition for post-conviction 

habeas corpus relief within the time period set by the court. 

w. VA. R. HABEAS 4(b). 

THEREFORE, this Court consolidates any previously filed petitions from the petitioner " 

and directs the hereby appointed habeas counsel, Lisa A. Green, Esq., to file an Amended 

Petition for Writ of Habeas Corpus, addressing all habeas corpus claims of the petitioner for all 

convictions which result in his current incarceration, Within ninety (90) days. 

( 
('

, FURTHER, the Court also withholds granting a hearing until Petitioner completes a Lash 

list. "Both petitioners and their lawyers can discuss these issues privately and can be expected to 

cooperate in filling out an appropriate form which Contains the grounds enumerated, and requires 

the petitioner or his counsel to check the grounds waived." Losh v. McKenzie, 166 W. Va. 762, 

277 S.E.2d 606 (1981). Counsel shall check each waived habeas allegation, and Petitioner shall 

initial each waived allegation on his Losh list. Petitioner shall submit fue same to the Court 

within ninety (90) days. 

The Court notes fue objections and exceptions ofthe parties to any adverse ruling herein. 

The Circuit Clerk. shall distribute attested copies ofthis order and fue attached original Petition to 

the above-named appointed counsel and the Berkeley County Prosecuting Attorney, and a copy 

offue order to the Petitioner. 

c ENTER this~I_1 day of February, 2015. 

TWENTY-TIllRD 

Ml~JUDGE JUDICIAL CIRCUIT 

BERKELEY COUNTY, WEST VIRGINIA 

A TRUE Copy 

An-eST 

Virginia M. SIne 

ge~ Circuit Court 

13y:---J.-C(!fp.U D~epu~ty~C~""F;"'·r7'k--­

( 


/73 

~i..y, 23. 2016 9: 12AM No, 0409 J 2 , > ,. I 

I 

I 

I 

c IN THE CIRCUIT COUR OF llERKELEY COUNTY, WEST VlRGINI~ 

STATE OF WEST VIRGINIA, ex .rel 

ANTONIO PROPHET., 

Petitioner, 

v. CIVIL CASE NO. lS-C-66 , Underlying Criminal Case No.: ll-F-67 

JUDGE LORENSEN ' 

DAVlD BALLARD, Warden, 

Mt. Olive Correctional Complex, 

Respondent. 

( 

2) PubHcily unduly influenc djul'Y, 


J) Trial Court's failure to stJike two jurors for cause. 


4) Prosecution's u~e offalsj testimony, 


5) Prosecliliou',s impeachmlnt ofPetitionel' on post arrest silence. 


~~ 6) Trial COUl'l'S failuro to

Petl tionol'. 1~;;!;"~ II. fI.l'.;y .. .1j.­

~J( ~" 'J?t r:l~ 

~ -l""~\5..._ -,=,-=.-;;;=---=;:;;;==O~R.>!D<!E""R,-,,<OF.P 

exclude the introduction of fictional hook atUrorcd by 

I 

I 

I 

I.i ~ 'I TIAI- DISMISSAl.Or Page I ofl9 

HABEAS.CORPUS 

. . L

I 

Received Time May, 23, 2016 9:17AM No, 2495 I 
Ma'y.23.2016 9:12AM .No. 	0409 . p. 3.~.c .. 

( 7) 	 Trial COllrt's failure to J.ve jlll'Y inRtruction that opporlunity nlone is insutpcient to 

prove guilt. 

8) Prosecutorial m iscooduct . 


9) Trial Court misconduct. 


10) Insufficient evidence to 1Pport murdel' conviction. 


1!)lneffective assistance ofTa! counsel. 


(2) Ineffective assistance of appellate counsel. 	 ; 

\3) Failure 1.1Y Supreme coJt of Appeals of West Virginia to allalyze trial $rrors on 

appeal. I 

14) Petitioner was not menml 

15) Petitioner was not menla! 

( 	 16) Prosecution suppression 0 

y competent at the time ofthe crime. 

y competent 10 stand for trial. 

exculpntory evidence. 

17) Prosecution falsification JftrllllSCriPt. 

18) No preliminary hearing. 

19) Unfair composition and P Dcedere of grand jury. 

20) Defeets ill the indictment. 

21) Improper venue. 

22) Pre-indictment delay. 

23) Refusal to subpoena witnrsses. 

24) Refusal to tum over witn1ss notes after witness has testified. 

25) Improper use of informed to convict. 

( 

ORDER OF 1'1\ TIAL DISMISSAL OH1AI3I!l\~<;:ORPUS I Pnge2 of 19 


Received Time May. 23. 2016 9: 17 AM No. 2495 


I 
MIty, n 	2016 9: 12AM No, 0409 p, 4 

t 

! 

( FACTS 

In 2012, a BerKeley COlUlly j I'Y convicted Mr. Prophet ofmmdering his gil'lfriol1d 

Angela Devonshire and her three ye r old S011 by setting her apartment on fire. Til total, Mr. 

Prophet was convicted of two COUI1~lOf first degree mUI'der without a recommendation of mercy 

lind one COllot of arson. Ms. Devonslte lived in a garage aparlment adjacent to her parent's 

house with her two children: Andre, he other victim, who was three years old, and Duropte, who 

was six weeks old at the time of the ffense. The garage apartment was located at the eml of 

Angela's parents' driveway about 75 yards from her parents' house. 

The evening of June 5, 2010 elitionel' went to spend the night at Ms. Devonshire's 

apartment. Sidney Devonshire m, Mi. Devonshire's brother, testified that he saw the Pe~"itioller 

and Ms. Devonshire at the apartment at about 9:00 p.m., on June 5. Elizabeth Kay Devo!\shire, 

( 	 Angela's mother, testified that she a oke al3:00 a.m., on June 6th and looked out the window 

toward her daughter's apartment. She testified that everything was quietllnd that she notiFCd [fHIt

l 

her daughter's curtains were pulled tith!. At 4:36 a.m. on June 6th a passing motorist eaJ\ed 911 

and I'oported that Ms. Devonshire's 8!artment WllS on fire. A fire marshal testified at trialitbat the 

lire was incendiary in nature and orig nated in Ihe middle of the living room floor ofthe . 

apartment. Angela and Andre died in the fire and their bodies were found in the burned i 

apartment. Altho\lgh Andre's body w~s too badly burned to determine It C!lllse of death, t~e 

medical examiner determined that A)re1a's throat was slit and thllt she died prior to the fire. The 

infant, Duronte, was found alive on Arge1a Devonshire'S parents' patio in blood-spaltere<j 

cloUling. The blood on the baby's c10tping \vruJ later detel'mined by an expert to be the l 

petitioner's. After the fire, Peliti"oner ked to North Carolina where he was arrested and ha~ 

. .( injuries on his hands. 

. 

I ---- _ .. - -- 'ORDBR 01'·PAR[!Ab DlSMISSAb,.Of HABBAS·CORPlJS-- - -I ­ ---1---­ . . . 	 I Pagc30f19 Received 	 Tim! May. 21 2016 9: 17AM No. 2495 

I 
May.23. 2016 9: 12AM No. 0409 P. 5 .!~ •.". r'" 1[""-"..•,.... ,'.; 

I ( Heather Aronhalt. a cashier t a convenience slore. testified that she saw Mr. Pr4phet 

• 

enter the store at 7 a.m. on June 6th, and that he hud a cut on his neck and blood on him! 

Katie Draughon, Mr, Prophet's ex-girlfriend who lived in Manassas. Virginia, testified 

that Mr. Prophet contacted her on thl morning of June 6th and indicated thai he was str~ded in . 	 I 

BerkeJey County, West Virginia an needed a ride. 'Ms. Draughon hired a taxi to transpilr( Mr. 

. 	 I 

supplied him with c\o(hes, a cell ph ne, and a twenty-dollar bill and took Mr. Pt'ophet t~ the train 

. 	 I

~~ ' 1 	 : 

Joseph Medina and Anicu S all, who was with Joseph Medina on June 5th and ~fh, both 

testified thai. Mr. Medina received t1Kt messages from Mr. Prophet at around 4:30 a.m. ~~Ying 

thm he needed help. Joseph Medina testified that he and the petitioner had been friends since 

\ 	 : ( 	 grude school. Mr. Medina testified Ihat he initially ignored text messages but did call the 


petitioner later that day. Aocording Il MI'. Medina, Mr. Prophet told him that Ms. Devo~Shire had been going through his pockets nd "stuff happened." 


Mr. Prophet testified he cam to Martinsburg, West Virginia, at the behest of J04eph 

I 

Medina, in May 2010. At that time, r. Medina was staying with a woman named Shan:non.ln , 

mid-May, Mr. Prophet met Ms. Dev nshire at Shannon's house when Angela came the~ to buy 

drugs from Mr. Medina. MI'. Prophe and Ms. Devonshire developed It relationship, PdqI' to June 

5,2010, Mr. Prophet visited Ms. De onshire's apartment eight or nine times and had sMnt the 

night there on five or six occasions. 

Mr. Prophet testified that 01) Iun~ 3rd, Mr. Medina stole Chllreese Davis's l!lPto~ and 

gave it to Mr. Prophet to hold while Mr. Medina extorted money from Ms. Davis in exchange for 

( 	 ""wm_. M<. Proph,' ,','m, "1 "',=, "~, 0' M,. M,diM ." "",,"'iog him i, ii< 

.'- ~ ~ ~.~ - -- - - , ORDER GF PAiIHIAb-DISM ISSAL-0f' HABEAS eClI11US,-. - ~ -1- - -- Received Time May, 23. 2016 9:17AM No,1 2495 rasc4of'9----I --


I
 i 
May. 23. 2016 9: 12AM 

( ,"",li" "h'm' M'.'••,m,," 

No. 0409 P. 6

., '.' r 

ro,d w".,," M" Moll" '''"'',,,' ,,, 'om, M" Lp,« I

, 

..' .,. 

Ms. Devonshire, and her family family. Mr. Prophet testified that after the argument, heiplaced 

i 

the laptop ill some weeds for Mr. M dina to retrieve. Mr. Prophet then culled 911 nllollY;lnously 

I 

to reporl Mr. Medina's threats and as directed by the 911 operator to call the Martinsbhrg I 

Police Department which directed hIm to call the Berkeley County Shel'ift's Dcpal'tmeni. 

Mr. Prophet testified thai on nne 5th, Mr. Medina called him to wish him a happy , 

birthday, bul he felt the cull was rna e for the purpose of determining Mr. Pl'Ophet's location. MI'. 

I 

Prophet testified that ut 12:30 l1.m., .nJune 6th, Angela woke up Mr. Pl'Ophet to tell hin!

,

there 

were two guys nt the door who won d not leave. Aller the men told Mr. Prophet they w1re 

looking for Ms. Devonshire to coil 

promised to return. Mr. Prophet inq 

( them. 

Mr. Prophet te..qtificd that lat 

cigarettes onc oflile men looking fo 

Devollshire. Mr. Prophet testified t 

t a debt, Mr. PI'ophet convinced them to leave, but 1110 men

, 

ired about the two men and Ms. Devonshire denie1 knowing 

l' 011, as he and Ms. Devonshire were on the porch ~moking 

.

I 

Ms. Devonshh'e, "Boogy," attacked Mr. Prophet ahd Ms. 

at a fight ensued between him and Boogy who had lknife,

I 

and that the figilt worked its way ins'Ide. According to Mr. Prophet, the other man looki~g to 

collect a debt from Ms. Devonshire ~ppeared wearing II Baltimore Orioles baseball cap ~nd 

holding a gun. Mr. Prophet testified ~hat as the two attackers gained control, Boogy too~ him 

duwnstairs fur the purpose ofbreaki~g in!o Ihe garage to steal something und thllt when;he 

amved back upstairs in the aPll11meJt, Angela w~s lying on umattress with her throat slit !lml the 

three-year-old Andre was beside hellin a pool ofblood. According to Mr. Prophel, at (~a{ poinl 

he sprayed the gun-wielding Baltim re Oriolcs-oapped mall with mace and fled the apatment. 

. ( M" 1""'''<"""' '" ~" h' tho,1'bro,gb ,", WOO", ",,"- fl,o! " him ,,~b, ~"' '" ., 

I ~- ~- - - --_-=~::----f;lBDER{;)FPJ\lRTIA-bDISMI3SAI;-0r HABBASG0RPl:JS ­

;) Received Time May. 23. 2G16 9: 17AM No. 12495 PAgeSofl9 

I 
M~y.23. 2016 9:12AM No. 0409 P. 7 , , 

( I 

voice ofa third man wllOm he thoug t may have been Mr. Medina. Mr. Prophettestifieq that, 

upon seeing smoke earning from thJ apal1ment, he nm buck Into the apaltment, gr~bbed; six­

~,~Id Do ro"o. ""' p",,' hIm o~ A.,,1,', "ro,'" p"'o. W. Pro,ho' POlP"'"'' 'o~"" bang on the Devonshires' door and Then nobody nnswered, he panicked and fled. Mr. ~rophet 

admitted thaI he did not call emergency services or law enforcement and that hI; lold no !one 

about tbe events sUl1'ounding the victms' deaths und the tire until be testified ul lrial ! I ! 

The prusecutor vigorously Mr. Prophet about a novel that MI'. Prophet wrote sev\md 

"""'''","'oJ Em" ,h. FI~••+""'>, " "" '.!ft. ,. , p,'o< ,"poI,ti",. ,h<,..",Lhod 

agreed Ihalthe State could not use tlr novel in the Stare's ease-in-chiefbul thul the statr would 

be free, subject to the rules of evide~ce, to refer to the novel in rebutlal. When the prosecutor 

questioned MI'. Prophet about the norel. MI'. Prophet's counsel objected on the basis of !he 

stipUlation and relevancy. The trial court determined that the stipulation did not prev(;)Jli the 

novel's use during CTOss-examinaliJ of the petitioner and further. that the novel was relFvant to I

, 

the petitioner's credibility. I 

111c circuit courl denied Mr. ,'rophet's posl-trial motions for acquittal and for a n~w trial, 

! 

and the court sentenced the petitione to life in prison withour the possibi lity of parole fO:r each 

I 

, first-degree murder conviction and a determinate telm oftwenty years for the arson oon~iction. , 

with the sentences to run consecutiv~ly. The court also awurded :Ii 11 ,220.61 in restitutio!). 

Mr. Prophetlhen appealed hij conviction to the West Virb:iniu Supreme Court of:Appeals 

alleging 1) insufficient evidenee to s pport conviction, 2) undue prejudioe trom CI'OSSexamination of Mr. Prophet on his Jvel, 3) prosecutor's comments on post-arrest silenc~ 

violated due process, 4) circuit court lrred by not giving [1l'Offered instruction on opportJnity, 5) , 

I

{ prosecutor knowingly presented perj red testimony, 6) prosecutor made improper remar~s. and 

I • I 

- -~ - ~~~- - ORDJ>R Or-PAfTIAL DISMISSIIJ.:;Of r!1I:B[lAS·CORPUS-=_==-_=~i_~_- ­

. Received Time May. 23. 2016 9: 17AM No. 2495 Pnge6ofl9 I 

, ' 
May.23. 2016 9: BAM No, 0409 P. 8 .' " . 

( 7) prosecutor engaged in miscondUCIt. Stale v. Prophet, 234 W. Va. 33, 762 SE.2d 602.lcert. 

. I 

denied, 135 S. Ct. 683, 190 1. Ed. 2 

900 (2015). The West Virginia Sup 

110ne ofthe purported errol's. [d. 

Mr. Prophet then appealed t 

396 (2014) l'eh'g denied, 135 S. CI. 1035, 190 L. pd. 2e1 

I 

me Court affirmed the trial court's convictioll and ltound 

, 

I 

; 

I 

I 

the United States :''upreme Court which denied thJ writ of 

certiorari. Prophet v. West Virginia, 135 S. CI. 683, 684,190 L. Ed. 2d 396 (2014). Mr. Prophet 

petitioned the United States Supremo Court to reconsider and the Supreme Court denied a 

I 

rehearing. Prophet 1'. West Virginia, 135 S. Ct. 1035, 190 L. Ed. 2d 900 (2015). Meanwhile, MI'. 

~ 

Prophet petitioned this court for a writ of habeas corpus and on May 12, 2015 Petitione~, by 

counsel Lisa A. Grecn, filed his Ambnded Petition and Memorandum in Support which ~was 

timely filed and properly verified bJ the Petitioner. : 

(

, Cllnclusions of Law 

I 

Petitions for writs of babeas rorpllS are "civi! in cbaracter and shall under no : 

circumstances be regarded as Cl'imiT' proceedings or a criminal case." W. Va. Code § !53-4Alea); Stale ex rei. Harrison v. Coiner, 154 W. Va. 467 (1970). Persons convicted of crir(les and 

cun'elltly incarcerated, may file a peLion for writ of habeas corpus contending one or lLre of 

the following; 1) a denial or infringllment of the petitioner's constitutional rights rendering a 

conviction or sentence void. 2) lac of jurisdiction, 3) the sentence is beyond tbe authbrized 

maximum, and 4) "the conviction Jr sentence is otherwise subject to collateral attack u~on any 

gl'Oul\d of alleged error heretofore JaJlable under the common law or any statutory PJ'o~jsion of 

this state." W. Va. Code § 53-4A-IJa), Claims that have been "previously and [jnally . 

adjudicated," either on diroct appeali 01' in a previous post-conviction habeas proceeding, may not 

.... 

~ - -- ~ORDBIl. 01' PARTfA[:J)ISMISSALfl" H!\BBAS-eORPU~ -I ~ 

Received Tim May.23. 2016 9: 17AM No: 2495 l'age7ofl9 


I 

May.23. 2016 9: 13AM No. 0409 P, 9 

, r" -'''''' '.> 

( form the basis for habeas relict: w.la, Code §53-4A-I(b); Bowman v. Leverelle, 1691, Va. 

589,289 S.E.2d 435 (1982). 1

A claim adjudicated or walv in a previous post-conviction proceeding is precluded 

. I 


when the petitioner was either repl'e~en!ed by counselor knowingly waived his right to be 

represented by counsel and the pr04eding was a complete omnibus htlbeas corpus pl'OCleding. 

Losh. McKenzl'e, 166 W. Va. 762.b77 S.B.2d 606 (1981); Gibson v. D<rie, 173 W, Va 681,319 

when at some point in the proceedi s which resulted in the conviction and ~cl1tence .. l , or in 

any other proceeding 01" proceedings instituted by the petitioner to secure relief from hiJ 

conviction or sentence, there was a ~eCiSiOl1 on the modts thereof after a full and fair helring 

( thereon ... unless said decision lip 11 the merits is clearly wrong." W. Va. Code § 53'4~.I(b) I 

Nonetheless, "W. Va. Code, 53-4A-!,d) allows a petition for post-conviction habeas eor~us relief 

to advance contentions Of grounds hioh have been previously adjudicated only if thosJ 

COlncntions or grounds are based UJlbn subsequent court decisions which impose new Jbstantive 

I 

or procedural standards in criminal roceedings that are intended to be applied retroactJely." 

i 

Bowman v. [.everette, 169 W. Va. 5 9,589,289 S.E.2d 435, 436 (l982). A claim waivJd is any 

ground for habeas relief that could Have been advanced on direct appeal or in a previou) postconviction proceeding but was not a6vanced. W. Va. Code § 53-4A-l(c). Should a petitioner 

WlS . h' 10 raise a grounc l' walYe d' IU a 8\1 Ib sequen t procee d'" mg, It IS t h . . h b e pellhoner t at ears Li',e 

burden of demonstrating thal such Jaiver was less than knowing and intelligent. Ford v' Coiner, 

156 W, Va, 362,196 S.E.2d 91 (19J.2). 

I 


A habeas corpus pmceeding 's markedly different from a direct appeal or writ 0ierror ill 

that only errors involving constHuti llal violations shall be reviewed. Syl. Pt. 2., Edwa+s v. 

" 

> -~ -­ -­ --­ - -­ - - - -­ -ORDI!R OF P1I'RTJAI:.I"llSMISSA:GDF-I1ABEkS CORPUS­ -~ !-­

.; Received Time May. 23. 2016 9: 17AM No.'2495 

I 

Page8ofl9 I 
May, 23. 2016 9: 13AM 

( Levere/Ie, 163 W. Va. 571 (1979). Petitions for writ of habeas corpus are governed 

p, 10 

in nart by 

West Virginia Code §53·4A·1, The Ilabcas corpus statute "contemplates the exercise orl 

discretion by the court." P«rdue v. oiner, 156 W. Va. 467 (1973). The circuit court dehying or 

I 

granting reHefin a habeas corpus pc ceeding mllst make specific findings offHel and cdnohlsions 

oflaw relating to each contention raIsed by the petitioner, Slale (IX rei. Watsoll v. Hili, 2~O W. 

Va. 201 (1997). To sustain his Petit) n, Petitioner must prove his claims by a prepondJunce of 

~~W~~ I 

"The COUIt shall prepare and enter an order for summary dismissal of the petitio. ifthe 

contentions in faet or law relied upo in the pelition have been previously and finally JjUdicated 

or waived." W. Va, R. Habeas 4(c).\v hat's more, if "the petition contains a mere recitalion of 

grounds without adequate factual su~port. thc court may enter an order dismissing the P~lition, 

witho,lf prejudice, with directions th~t thtl petition be refiled containing adequate factual 

support." ld. Flnully, for "all petitiot not dismissed summarily as provided in Rule 4(ct the 

court shall order the respondent to t an answer...n W. Va. R. Habeas 4(d). 'l 

If the court upon review oft e petition, exhibits, alIi davits, or other documental'. 

evidence is satisfied that petitloller i' not entitled to l'elief, the court may dellY a petitio1 for writ 

of habeas corpus without an evident ary headng. Syl. Pt. 1. Perdue v. Coiner. 156 W'i8. 467 

( 


(1973); Slale ex reI. Waldron v. Seo I, 222 W. Va. 122 (2008). Upon denying a petition for writ 

,fl."...ro~"" II. "'"m," m+ _!fio fi,dI,,, ,fmot Md ooooh"'"'' ,fl.w J"""" 

contention raised by the petitioner, JlId must also provide specific findings as to why ani 

evidentiary hearing was unnecessal . By!. Pt. L Slate ex reI. Wafson v. Hill. 200 W. Va. 201 

(1997); Syl. Pi. 4., Markley v. co/Jail, 215 W. Va. 729 (2004); R. Hab. Corp. 9(a). 

,:( ANALYSIS
May. 23. 2016 9: 13AM • '. J' , . 

( 

1) Cumulative ct'rOI'$, 

Respondent is directed to ar swer Ground 1 as it pertains to cumulative errors regarding

I ' 

ineffective assistance of counsel w thin 90 days of the date of this order with either ~ brief or 

proposed ol'der, I 

, 

2) GrQund 2 - publicity unduly influenced jnry - is DISMISSED b~ause the 

Petitioner waived tbis ssue by Ilot raisillg the Issue chller In trial or Ion direct 

Q~L I 

Mr. Prophet contends that Ie was denied his right under the West Virginia atd United 

Stales Constitutions to a fair and impartial jury due to pre-trial and trial publicity. Petiti,ner cites 

that many members of the jury panbl were tainted by twos years of media coverage. In support 

of this claim, Petitioner cites voir dt (hat many potential jnrors had beard of the case Jnd cites a 

pre-Irial public opinion survey of erkeley County residents demonstrating public 110WlCdgC 

( and opinion oflhe case. 

W. Va. Code Ann. § 53AA-~(c)states inpeltinentpart: 

[A] contention or conteuti4ns and the grolmds in fact or law relied upon lin 

support thereof shall be deqned to have been waived when the pelitioner could 

have advanced, but intelligeo1tly and knowingly failed to advance, such contcllti!m 

or contentions and grounds Heforc trial, at trial, or on direct appeal (whether or dot 

said petitioner actnally too~ an appeal), or in a proceeding or proceedings o~ a 

prior petition or petitions filtd under the provisions of this article, or in any ot~er proceeding OJ' proceedings nstiMed by the petitioner to secure relief from his 

conviction or sentence, lml 5S such contention or contentions and grolmds !he 

such that, under the Constit (jon of the Ullited States or the ConstitutiQn of t~is 

State, they cannot be waivekl under the circumstances giving rise to the aneJbd 

waiver. l 

Here, Petitioner waived this laim of errol' by knowingly nnd intelligently failin to 

"","." 'M. 00",00"'" " .", "" I''WooI. A"oro""y, Oro,"" 2I. DISMISSED. 

3) Gmund 3 - trial Coud's failure to strike two jurors for cause - is DISMISSED 

:( because the Petitioner [I 1Ilvcd this issue by not raisillg the issue either ~ trial 01' 

. -­ on direct appeal. I 

I -..•.- -. - -. -_. ---- - - -- ORDER-or PI\[{TIAL-orSMISSi\:C'OF HABE,ASCORl'US- -1- - - .­

i'-Received Time May. 23. 21)16 9: m.M No: 2495 Pag.IOof19 -----

I 
Ma'y, n 2016 9: 13AM 	 No, 0409 p, 12 

t 

/ 

Petitioner argues thnt the tri I Court should have struck two jurors for cause. Petitioner 

I 

alleges he had 10 wasle one of his trikes on one of the jm'Ol's and that the other juror:ended lip 

sitting on the case. Petitioner's trial 'ounsol moved to strike both jurors for cause. 

The Court notes that: 	 j 

I 

A trial court's failure to rem ve n biased juror from ajury panel does not violate a 

defendant's right to a trial ,y an impal1ial jury as guaranteed by the Sixth ahd 

Fourteenth Amendments to the United States Constitlltion and by Section l4 :of 

Article !II of the West Virginia Constitution, In order to succeed in a claim t~at 

his or her constitutional rigljt to an impartial jury wus violated, a defendant mlls! 

affirmatively show prej Udic1" ! 

Syl . Pt. 2, Stale ex rei. Farmer v. 'cBrlde,224 W. Va. 469,686 S.E.2d 609, 612 (2009); Syl.

I 

PI. 7, Slate v. Phillips, 194 W.Va. 5 9,461 S.E.2d 75 (1995); Syl. Pt. 6, State ex ret, QI}inolle.l')1,

I 

Rubenstein, 218 W.Va. 388,624 S..2d 825 (2005). PetitioneralJeges prejudice, but offers little 

I 

to affirmatively show prejudice. ; ( 

Nonetheless, Petitioner wai ed this purported euo!'. W, Va. Code Ann. § 53-4AH(c) I 

I 

stales in pertinent part: I 

I 

I 

[a] conlention or contention and the grounds in fuct or law relied upon in SUPP/llt 

tbereof shall be deemed to have been waived when the petitioner could hw~e 

advanced, bul intelligently ~nd knowingly failed to advance, such contention!or 

contentions and grounds belore trial, lit trial, or on direct appeal (whether or not 

said petitioner actually too~ an appeal), or in a proceeding or proceedings oJ a 

prior petition or petitions fitI'd under tbe provisions of this article, or in any ot~er 

proceeding or proceedings Instituted by the petitioner to secure relief from his 

conviction 01' sentence, unless such contention or contentions and grollnds ire 

such that, under the Constit~,tion of the United States 01' the Constitution of this 

State, they cannot be waivtl under the Ch'ctlUlstances giving rise to tbe allei,ed 

waiver. 

Here, l'etitioncr waived this Ilaim of el1'OI' by knowingly and intelligently fuilin! (0 

advance Illis contention on appeal. Accordingly, Ground 3 is DISMISSED. I 

r 

:. ( 4) 	 Ground 4 - prosecution's use of false testimony - is DISMISSED beJllllsc this 

issue was fully and fin~lIy adjudicated on appeal. 

----- - - - - -- oRDl>Rpn-ARTIALDlSlVIISSi\r;-onlABIfAS CORPUS"--___-_-r-_-_· 

Received Ti~e May. 23. 2016 9:17AM No.'2495 Pagcllofl9 . 


I 


I 
May,23, 2016 9:14AM No. 0409 P, 13 .~{:\? :. r It "'., '. I 

( \ 

Petitioner asserts that he war deprived of his constitutional right to due proees! and to a 

fair trial when the prosecutor used Ise testimony. A three part test applies a Pl'osecutQr's use of 

; 

false testimony; a defendant must prove 1) presentation of false testimony, 2) prdsecutor's . 	 I 

knowledge offulsity, and 3) mater al effect on verdict. Siale v. Prophet, 234 W. V~. 33,762 

S.E.2d 602 cert. denied, 135 S. Ct.l83, 190 L. Ed. 2d 396 (2014) reh 'g denied, 13S s.lcI. 1035, 

190 L. Ed. 2<1 900 (2015). The welt Virginia Supreme Court, on the appeal of tllis cAse, using 

"" ""• ..,,,, ",' fu"",,, ••\ '"I Proph« f,iI" " ""'w <hot Ih. pro~oo\~ ,"~+'I f"'" 

testimony.ld. 234 W. Vn. at _,762 S.E.2d aI614-15. I 

Because the issue of the ptoseclltOI' using fulse testimony has been fully a~d finally 

adjudicated on tile merits and the delision is not clearly wrong, Ground 4 is DlSMISSJD. 

( 	 5) Ground 5 - pl'OSecutIO~'S impeachment of Petltioncr 011 post-arl'cst Silence - is 

DISMISSED because tills issue was fully llnll finally IIdjudlclltC(l on npp~al. 

Pelitioner «s~erls that he waJdeprived of his constitutional riglrt to due process Jnd to II 

. 	 I 

fulr trial when the prosecutor impea hed Petitioner through unfuir means by questioning 

i 

j 

Petilioner about post arrest silence. ' n appeal of Ihis case citing Syl. Pt. 1, Slate v. Boy4 160 

I 

W.Va. 234, 233 g.E.2d 7J0 (1977), Ile Wesl Virginia Supreme Conrt noted that 

Under the Due Process Clau e of the West Virginia Constilution, Article m. . Section 10, and the presump ion of innocence embodied tberein, and A11icle Jll, ; 

Section 5, relating to the rigljt against self-incrimination, it is reversible error fo~ 

the prosecutor to cross-exal~itul a defendant in regard to his pre-trial silence or 19 

comment on the same to tbe fUry. I 

Syl. PI. 4, Slate \" Prophet, 2.14 W. ra. 33, 762 S.E.2d 602, cer/, denied, 135 S. Ct. 6831190 L. 

Ed. 2d 396 (2014) reh 'g denied. 13 S. Ct, 1035, 190 L. Ed. 2d 900 (2015). However, ~e 

Supreme Comt noted that .me-anes! silence is distinguished from llQst-ar:rest silence, befause " ( 


impeacbmcnt by use ofpre-OlTCs! si 
ence does not violate due process or the right to reri1ain 

:.-~-. - ~~ - -	~~ - - - - ORDERor"-P~1<flAJ,DlS!Y!lSSALOl'ffeBB.AS-CORPUS- - -l-----~ ­ 'Received Time May. 23. 2016 9: 17AM No. 2495 Page J2ofl9 I 


I , 
 I 
~dY. 23. 2016 9:14AM 	 No, 0409 p, 14 ". '.'.,~' ,'.! ... ····r' 

( Silent: ld. (Citing5~ale v, WalkeI', 20~ W.Va, 415.419.533 S,E,2d 48. 52 (2000); JenkiT v. 

Andmon. 447 U.S. 23 1.240, 100 slct. 2124.2130.65 {"Ed.2d 86. 96 (1980)). ; 

On appeal the West Virgini!! Sllpreme COU1't using the same record that is pl'eseJtly I 

before this Court found that the pro ecutor did not improperly l1se Petitioner's post-arre~t silence 

I 

I 

to impeach Petitioner on cross-cx!trr ination. Accordingly, this issue was fully and finall¥ 

adjudicated on the merits. Because tris was decided on the merits on appeal and the dedisiOIl was 

", ""'" ~", Om,"" , i.D1sr 

6) 	 Ground 6 - trial cour['s failure to cxducte the introduction of fictional book 

authored by Petitioner - Is DISMISSED because this issue WIIS fully Il~d finally 

ndjudiea ted Oil IIppelll. 

Petitioner asserts that he was deprived of his constitutional rights to due process and 

( equal protection when the trial colrt fuiled to exclude reference to and cross exami1natioll on 

p,u"",,", fi.i"., '"m. bo,k E+' "" F;roo' 8",,, D"Y' ,. ,h, LV.· Po,;"""m'~ ." '0, 

argument on uppeal to the Sl1prclrje Com1 of Appeals of West Virginia.. The Suprcrc Court 

found, citing Sy\. pI. 4, Slate !" dardll./J. 142 W.Va. 18,93 S,E.2d 502 (1956), thrt "c!'Oss­

""mi,.i" of , wi"'~ i, , m.+ wi"i, <h, ""ml di.~ti" of <h, "'" 'Om, r' ,. ". 

exercise of such discl·etion. in excluding or permitting questions on cross-examination'l its action 

t. ,m' ,wi,ooh], ~"" " "" of roo"", "'= "' i~""",." s,I. " 3, 8"" ,. ''?'', 234 

W. Va, 33, 762 S.R2d 602, cerl. denied, I3S S. Ct. 683, 190 L. Ed, 2d 396 (2014) reh 'g denied, 

1:15 S. Ct, 1035, J90 L. Ed. 2d 9bo (2015). The Supreme Court fOllnd that the trial court's 

decision to permit the State to cros~-el(amine Petitioner on his novel did not result in a~ abuse or 

injustice, nor did it result in undue ~rejudice to Mr, Prophet. ld, Thus, because the isshl.' of trial 

0( 

...r ­ - - - - - - ORDER"Of PA:RTI)\t DISMISSAI:;'0I' HABEAs-eORPI:JS 

"'Received Time May, 23. 2016 9:17AM NO,' 2495 Pagel3ofI9-r"-'--

I 
- --

M"y.23. 2016 9: 14AM 	 No. 0409 P. 15 : ," , 

,~ r' """":,.,,-', "'.<> 

( I

fully nnd finally adjudicated on (h merits, and the decision is not cleurly wrong, G~ound 6 is 

DISMISSED. I

I

, 

I 

7) 	 Ground 7 - Trial Cou t's failure to give jury instruction tllat opporturtity lI[one 

is insufficient to prove guilt, - is DISMISSED because this Issue was fully and 

filially adjudicated on ppea!. I 

Petitioner asselts that he Wi deprived of his COl1stitutioIJllI rights to due pro~ess and a 

fair trial when the trial court refused to give a jury instruction that opportunityl alone is 

insufficient to prove guilt. petitiler alleges that the trial court erred by refusi1s a jury 

instruction from State v. Dobbs. ld3 W.Va. 630, 635, 259 S.E.2d 829, 832 (1979), JhiCh says 

•• "I.)m'f ,f ""","'oity " '"+,.,rim< '" 0", wm",", " ~.bI"" goll'i tho ,,",," 

musL exclude all reasonable opporturity by others Lo have committed it," (Citations omred). 

On appeal in this case, the ~upreme Court of Appeals of West Virginia found "lhallhe ( l 

circuit court's refusal to give the inttruction from Dobbs is not error because tbis langvage is no 

longer II coneet statement of the llW'" Swre v. Prophet, 234 W. Va. 33, 762 S.E.2dI602, 614 

cerro denied. lJS S, Ct. 683, 190 L. Ed. 2d 396 (2014) reh'g denied, 135 S. Ct. 1035, J!90 L. Ed. 

I 

2d 900 (20J5). The Court noted th- t Dobbs was overruled in Slate v. Guthrie, 1941.va. 657, 

461 S, E,2d 163 (1995). fd. 

The Supreme Court found thaL the trial comt's decision not to give the jproffered 

I 

instruction on opportl\nlty was n terror. fd. Thus, the issue has been fully a~d finally 

adjlldicated on the merits, and the dListon is not clearly wrong. Accordingly, this COII~ will nol 

further analyze this Issue, and Grout 7 is DISMISSED. ! 

8) 	 Ground 8 - proseclItJial misconduct - is DlSMlSSED because this Lue was 

fully lind finally adjudi atcd on appeal. I 

.: ( 

',' > -- ~ -- - - - -- - -- ORDllR-OFI'ARTlkl:;DlSMISSAl:;{)F HA[jeA~eORPI:lS - --~ ­

", Received T;me May, 23, 2016 

'T 	

9:17AM No. 

I 

2495 Pagel4ofl9 ­
~ay 23. 2016 9: 14AM 

" 

( 

Petitioner asserts thftt he waJ denied his rights to due process, to a fair trial, to a~sistance 

of eounsel and to freedom from sel~illerlmil1atioll because ofmultiple instances ofPros~cutorial 

misconduct. I 

First, Petitioner alleges that he prosecutor's inquiries into his post arrest silence were 

improper. This is a restatement of Jround 5 which the Court DISMISSES as explained above. 

As to tile other nine allegati~ns of prosecutoriaI misconduct, Mr. Prophet makes'onlY 

conclusory statements ofthe grounds without showing evidence of actual prejudice. 

The Court notes the unique Jile a prosecutor has in O\1r system ofjustice: 

, 	 The prosecuting attOl'lley qccupies a quasi-judicial position in the trial of! a 

crimin"l case. In keeping with this position, he Is required to avoid the role of a 

partisan, eager to convict, ~nd must deal fairly with the accused as well as the 

other pruticipants in the Idal. II is the prosecutor's duty to set a tone of faimdss 

and impartiality, and while ~e may and should vigorously pursue the State's ca~e, ill so doing he must not aba don the quasi-judicial role wilh which he is cloaked ( under Ihe law. i 

Sy!. Pt. 3, Siale v. Boyd, [60 W,Va. 34,233 S,E,2d 710 (1977), However, a conviction will not 

be overturned by because ofremurk mHde by !l prosecutor without clearly prejudicing ~e jury. 

Siale v. Hamrick, 216 W. Va. 477, 478-79,607 S,E,2d 806, 807-08 (2004), 

Because the Petition contfliljs a mere recitation of grounds withoufadequate fnerual 

support and no showing ofprejudic6, Ground 8 is DISMISSED. 

9) Ground 9 - Trial coult Misconduct - is DISMISSED for the reasons/set forth 

below. I 

Petitioner asserlS that he w1 denied his rights to due process, to a fair trial, to ,siSlancc 

ofcOllnsel, freedom from self·incrimination, and equal protection because the Ifial COUlt engaged , I 

in misconduct. i 

First, Pelitionel' alleges that lhe trial court's comments 011 the udtl1issibility lind Jrobative 

, ,( value of evidence at a pretrial hearil!g constitllte misconduct. Petitioner fuils to allege tJllt these 

;,,:,:-.-' 	- -~ -- -- - - -- ORDER 0P JR:TlAb DfSMISSAL 0f-HABEAS GORPlJS --- --, . ..-~------ 1 Page 15 of 19 I

I 

f"'Received Time May. 23. 2G16 9:17AM No. 2495 " 	 ! I 
~ay, 23. 2016 9: 14AM NQ, 0409 p, 17 ': ~', '(.. .: ~ ',- '-\ 

( comments prejudiced Petitioner, The comments were not made in the presence of the jury and 

S1'e the very types of comments that'ajlldge makes when determining the admissibility if . evidence, Accordingly, this is just a mere recitation of a ground without providing adeq~ate 

factual support. Thus, Ground 9A isIDlSMISSED, 

Second, Petitioner nlieges thbt the trial court engaged in miscollduct when il rej,cted u 

plea ugreement by one of the state's witnesses, Joseph Medina, in an effort to coerce Mt. Medina 

into cooperating with the state, Petirioner fails to cite allY authority on how the judges use of 

''''''lioo i, "",Ii",'" nj",tin, j,I"~,.iM~ m;~®""', -~" p."~~laHs to 

show any prejudice, Petitioner state1 that the pica agreement was "almost two years sin e Mr. 

Mediou's initial interview with the r1ice in which Mr. Medina practically benl over batkwards 

in his attempts to implicate the Petitioner in the crime at issue," Amended Petition at 66l 

( M" M'm" "" "",ody "','0'"+kw''''' '0 imp"~" ", "'itlo,,,, tln" th,,,;, ,J 

demonstration of prejudice. Accordingly, Ground 9B is DISMISSED. 

Under Ground 9F, pelitione~ alleges that the tone of the trial court when direoting 

Petitioner to answer a question posch by the pl'OSeclltor constituted misconduct and oaJed 

P,1itim. Proj"""', Politi"",i'" " ru" " "dm m, Coo. ,10 I."" ,,~ 0'00",ri, 

DISMISSED, I 

Grmmd 9H alleges that the tial court coached the prosecutor, but provides no supporting 

fu," " ",port ,,,," ",'m, G~'" l' ,I",~ tM, ,'" ",I '00" ",..,' i, "'"bflo M',,fbiM" 

but provides almost no facts to SllPprrt the claim. Thus, Grounds 9H and 91 are DISMISSED. 

Finally, the remainder of peTioner's allegations of judicial misconduct llre mel'~ recitations olher purported errors inqluding: misconduct for failing to strike 2 jurors for bause 

(GI'Ound 3 Slpr{f), misconduct by p~mitting the introduction ofPetitioner's fictional bJOk into .. ( . ' 

,.,~- ~ ~ - --- - -- -- - - GRDBR·QfLMR4'!AL. DlSMISSAL,OF HABBAS,CORP.U",S==~~=i-'~=-"'""""' . ·----r~-P.ge liiofl9 '. 

·,.:Received Time May, 23. 2016 9: 17AM No, 2495 

I 
... ~-. " . t,.l-:;'. 

( evidence (Ground 6 supra), miscon uct by permitting prosecutor to inquire about post­ rrest 

silence (Ground 5 supra), misconduct by falling to correct prosecutorial misconduct (G!ound 8 

supra), Because these allegations 8rf dismissed above, there was lIO judicial miscollducl, For that 

reason and because adequate faets Q~mOnSlraling prejudice were not alleged these grolds are 

DISMISSED. I 

I I 

10) Ground 10 - Insufficient evidence to support murder conviction - is 

DlSMISSED because U\.is issne was fully lind linally adjudicated on ullpbal. 

Petitioner alleges that there Las insufficient evidence to convict him at trial. pjtitioner is 

not presenting newly discovered JVidence; rather he is simply contesting the SUffirienCY of 

evidence at trial. The Supreme cojrt already addressed this argument and found that jSUffiCient 

evidence existed (0 support II murder conviction. State v, Prophef, 234 W. Va, 33, 762 S.E,2d 

602,609 ""'. d,,',,' 135 S. CI. +- 190 C Ed. 2d 396 0014) roh'g d"oJ,. '" S. Ct. 1035, ( 

190 L. TId. 2d 900 (2015). Thus, the issue has been fully and finally adjudicated on the merits, 

and the decision is not clearly wron~. Accordingly, this Court will not further analyze Ihis issue, 

and Ground 10 is DISMISSED, j I 

11) Ineffective assistance (l Mal counsel. 

""",,''''' I, dI~",d 10 +"'" "Orowul 11 wltW,.., """ 0,"" d,~ of r",ro" 

with either II brief or proposed order; I 

I 

12) Ineffective assistance O!lIPpeuate counsel. ! 

I 

Respondent is directed to re pond to Ground 11 within 90 dnys of the date Of~hiS order 

with either a brief or proposed olde r . 

13) The COllrt dismisses Ground 13 - .!<'allure by Supreme Court of Appeal~ of West . 

Virginill to meaningfu ly analyze trial errors on ~ppCl\l - becnuse th~re is no 

evidence to support the claim. 

, Received Time May, 2l 2016 9: 17AM No, 2495 

! 
'.:,,~ay,23. 2016 9:15AM .•'y ~ 1.' , . '. No. 0409. ,Po 

( 

Petitioner, again wishes to 'eargue the same purported errors that have been argued and 

reargued in various stages of this c se and argued multipl~ differ~nt ways above. Here, Petitioner 

does not provide even the slightest bit of legal 01' factual reasoning that would permit rhiS COUlt 

to in essence reverse the Wes Virginia Supreme Court Accordillgly, Ground !3 is 

DISMISSED. 

14) The Court dismisses G ound 15 - mental competency lit time of crime bCCHUSC 

the Petition contllins III mere recitatlon of this ground without any factual 

support. I 


15) The Court dismisses G 
ound 15 - mental competency to stand for trial r because 

the Petition contains II mere recitation of this ground without lIny factual 

support. 


16) The Court dismisses 
Ground 16 - prosecution suppression of exculpatory 

( evidence - beClluse the Petition contains II mere recitation of this groul\~ without 

any factual support. 

I?) The Court dismisses IGround 17 - prosecution falsification of tnnscript ­

because the Petition ontains II mere recitation of this ground wi~hout IIny 

factual support. l I

18) The Court dismisses G, ound 18 - no preliminary hearing - because t~e Petltioll 

contains a mere recitation of this ground without any factulIl support. 

19) The Court dismisses ground 19 - unrah' composition lind procedure of grllnd 

jury - because the Pctl!ion contilins a mere rellitatioll of this ground without any 

factual support. I 

20) Th0 Court dismisses Ground 2() - dcfects ill tbe indictment - bebouse the 

Petition !.'ontflins a mer rccitfltion of this ground without any factual ,tipport. 

21) The Court dismisses /Ground 21 - improper venue - because thl Petition 

contains a mere recitation ofthis gl'ound without any e factual support, I . 22) The Court dismisses Ground 22 - pre-indictment dclay- because thb Petition 

contains a mere recitafion of this grollnd without IIny tiletuDI support. 

ORDER OF PARTIAL DISMISSAL OF I1A13BA.-"S"'C"'O"'R...P""'U"-'S'--__.~+_-

,. I Pel!.~ 180fl9 r; Received Time May, 23. 2016 9: 17AM No, 2495 

I 

19,.... ,),<'," ',- , . ~ ~ .
2016 9: 15AM , .~ , .)0,0409" P. 20

,. 

( 2J}The Court dismisses froulJd 23 - refusal to subpoena witnesses - because.the 

Petition contains II mc,e recitlltion of this ground without any factual s~pport, 

24) TIle Court d Ismlsse! G~ollnd 24 - refusal to turn over witness notes aftt.· witness 

bas testified - becaus~ the Petition cOlltains II mere recitation of this ground 

wilhonI lIny factual support, 

25) The Court dismisses IGrOUnd 25 - improper nse of informers to fonvkt ­

because the Petition contains II mere recitation of this ground without any 

factnal support. I 

l Conclusion 

Grounds 2. through 10 and I though 2S are DISMISSED, The state is ORDERED to 

answer and substantively respond tl Grounds 11 and 12 and in limited part to Ground 1within 

I 

90 days oftbis Order. These issues /wm not be further addressed by this Court in any 

proceedings. Petitioner may file a slott reply bl'ief withiti 30 days of 0 response being ~Ied. 

Parties arc encouraged to provide t. e Court with digital and searchable copies of briefs and ( I 

proposed or<lers. The Court withholds gl'antitlg a bearing until all brief; have been filed. 

Th, C""k ,h.U '""' ilii. +" g ofili, d", .rin", bol~ ,,' "",.,,"""Lot'" 

copies to nil counsel and parties of pleord, including the Prosecuting Attorney for Ber~lley 

COllnty find Lisl! A Green, Esq" c~unseJ for tile Petitioner. I 

~_ ....__.____..~ 

. d T: Recelve ,:me May, 23. 

! _ (. rl I ENTBRthis~dayofdJv\'t5 !20L4. 

I 

1 

J 

I _ ORI1ERJlF_PARTlALDlSMISSALOF HABEAS CORI!US-·- --,-- _ .. 

I rage \9 ofl9 ; 

2016 9: 17AM No, 2495 
( 

IN THE CIRCmT COURT OF BERKELEY COUNTY, WEST VIRGINIA 

STATE OF WEST VIRGINIA, ex reI 

ANTONIO PROPHET., 

Petitioner, 

v. 

DAVID BALLARD, Warden, 

Mt. Olive Correctional Complex, 

Respondent. 

o "'" ,-::.: .!~ -J (; '-'~ 

-0 

CIVIL CASE NO. lS-C-66 ".:::<: ',-­ ~ ~.'.::~ Underlying Criminal Case No.: y2F-61 . ' .,,~ 

JUDGE LORENSEN '." ::: -< 

ORDER DENYING PETITION 

( 

Antonio Prophet, by counsel, Lisa A. Green, petitions the Court for a writ of habeas 

corpus seeking a new trial: 'Ine Court, on June 24, 2015, dismissed 23 of Mr. Prophet's 25 

claims for relief and ordered the Respondent to answer the remaining two claims - ineffective 

assistance of trial counsel and ineffective assistance of appellate counsel. The Respondent 

answered on September 21, 2015, and moved to dismiss the two remaining claims. Mr. Prophet 

Replied in support ofthe Petition on October 22, 2015. 

FACTS 

In 2012, a Berkeley county jury convicted Mr. Prophet ofmurdering his girlfriend 

Angela Devonshire and her three year old SOlI by setting her apartment 011 fixe. At trial, Mr. 

Prophet was represented by Cl'aig Manford and Christopher Prezioso. In total, Mr. Prophet was 

( convicted oftwo counts offirst degree murder without a l'econunendation ofmercy and one 

count of arson. Ms. Devonshire.lived in a garage apartment adjacent to her parent's house with 
, , 

,,­

( her two children: Andre, the other victim, who was three years old, and Daronte, who was six 

weeks old at the time ofthe offense. The garage apartment was located at the end of Angela's 

parents' driveway about 75 yards from her parents' house. 

The evening ofJune 5, 2010 Petitioner went to spend the night at Ms. Devonshire's 

apartment. Sidney Devonshire m, Ms. Devonshire's brother, testified that he saw the Petitioner 

and Ms. Devonshire at the apartment at about 9:00 p.m., on June 5. Eliz.abeth Kay Devonshire, 

Angela's mother, testified that she awoke at 3;00 a.m., on June 6th and looked out the window 

toward her daughter's apartment. She testified that everything was quiet and that she noticed that 

her daughter's curtains were pulled tight. At 4:36 a.m. on June 6th a passing motorist called 911 

and reported that Ms. Devonshire's apartment was on fire. A fire marshal testified at trial that the 

fire was incendiary in nature and originated in the middle ofthe living room floor of the 

( 	 apartment. Angela and Andre died in the fue and their bodies were found in the burned 

apartment. Although Andre's body was too badly burned to determine a cause of death, the 

medical examiner determined that Angela's throat was slit and that she died prior to the fire. 100 

infant, Daronte, was found alive on Angela Devonshire's parents' patio in blood-spattered 

clothing. The blood on the baby's clothing was later determined by an expert to be the 

petitioner's. After the fire, Petitioner fled to North Carolina where he was arrested and had 

injuries on his hands. 

Heather Aronhalt, a cashier at a convenience store, testified that she saw Mr. Prophet 

enter the store at 7 a.m. on June 6th, and that he had a cut on his neek and blood on him. 

Katie Draughon, Mr. Prophet's ex-girlfriend who lived in Mauassas, Virginia, testified 

that Mr. Prophet contacted her on the moming of June 6th and indicated that he was stranded in 

( Berkeley County, West Virginia and needed a ride. Ms. Draughon hired a taxi to trausportMr. 

ORDER DENYING PETITION FOR HABEAS CORPUS 

Page 2 of14 n"'7! 
( 

Prophet to Virginia. Ms. Draughon testified that she met briefly with Mr. Prophet in Virginia and 

supplied him with clothes, a cell phone, and a twenty-dollar bill and took Mr. Prophet to the train 

station. 

Joseph Medina and Anica Small, who was with Joseph Medina on June 5th and 6th, both 

testified that Mr. Medina received text messages from Mr. Prophet at around 4:30 a.m. saying 

that he needed help. Joseph Medina testified that he and the petitioner had been friends since 

grade school. Mr. Medina testified that he initially ignored text messages but did call the 

petitioner later that day. According to Mr. Medina, Mr. Prophet told him that Ms. Devonshire 

had been going through his pockets and "stuffhappened." 

Mr. Prophet testified he came to Martinsburg, West Virginia, at the behest ofJoseph 

Medina, in May 2010. At that time, Mr. Medina was staying with a woman named Shannon. In ( 

mid-May, Mr. Prophet met Ms. Devonshire at Shannon's house when Angela came there to buy 

drugs from Mr. Medina. Mr. Prophet and Ms. Devonshire developed a relationship. Prior to June 

5,2010, Mr. Prophet visited Ms. Devonshire's apartment eight or nine times and had spent the 

night there on five or six occasions. 

Mr. Prophet testified that on June 3rd, Mr. Medina stole Chareese Davis's laptop and 

gave it to Mr. Prophet to hold while Mr. Medina extorted mOney from Ms. Davis in exchange for 

her computer. Mr. Prophet claims he became angry at Mr. Medina for involving him in the 

extortion scheme and an argoment ensued wherein Mr. Medina threatened to harm Mr. Prophet, 

Ms. Devonshire, and her family. Mr. Prophet testified that after the argument, he placed the 

laptop in some weeds for Mr. Medina to retrieve. Mr. Prophet then called 911 anonymously to 

report Mr. Medina's threats and was directed by the 911 operator to call the Martinsburg Police ( 

Department which directed him to call the Berkeley County Sheriff's Department. 

.ORDER DENYING PETITION FOR HABEAS CO~RP=U",-S___ ___ 

P e30fl4 
J •• 

( Mr. Prophet testified that on June 5th, Mr. Medina called him to wish him a happy 

birthday, but he felt the call was made for the purpose of detennining Mr. Prophet's location. Mr. 

Prophet testified that at 12:30 a.m., on June 6th, Angela woke up Mr. Prophet to tell him there 

were two guys at the door who would not leave. After the men told Mr. Prophet they were 

looking for Ms. Devonshire to collect a debt, Mr. Prophet convinced them to leave, but the men 

promised to return. Mr. Prophet inquired about the two men and Ms. Devonshire denied knowing 

them. 

Mr. Prophet testified that later on, as he and Ms. Devonshire were on the poreh smoking 

cigarettes one ofthe men looking for Ms. Devonshire, "Boogy," attacked Mr. Prophet and Ms. 

Devonshire. Mr. Prophet testified that a fight ensued between him and Boo gy who had a knife, 

and that the fight worked its way inside. According to Mr. Prophet, the other man looking to 

( collect a debt from Ms. Devonshire appeared wearing a Baltimore Orioles baseball cap and 

holding a gun. Mr. Prophet testified that as the two attackers gained conn:ol, Boogy took him 

downstairs for the purpose of breaking into the garage to steal something and that when he 

arrived back upstairs in the apartment, Angela was lying on a mattress with her throat slit and the 

three-year-old Andre was beside her in a pool ofblood. According to Mr. Prophet, at that point 

he sprayed the gun-wielding Baltimore Orioles-capped man with mace and fled the apartment. 

Mr. Prophet testified that he then ran through the woods, shots were fired at him and he heard the 

voice of a third man whom he thought may have been Mr. Medina. Mr. Prophet testified that, 

upon seeing smoke coming from the apartment, he ran back into the apartment, grabbed sixweek-old Daronte, and placed him on Angela's parents' patio. Mr. Prophet purported to then 

bang on the Devonshires' door and when nobody answered, he panicked and fled. Mr. Prophet 

( 

ORDER DENYJNG PETIDON FOR HABEAS CORPUS 


Page 4 ofl4 

( 

admitted that he did not call emergency services or law enforcement and that he told no one 

about the events surrounding the victims' deaths and the fire until he testified at trial 

The prosecutor cross examined Mr. Prophet about a novel that Mr. Prophet wrote several 

years earlier titled Enter the Fire: Seven Days in the Life. In a prior stipUlation, the parties had 

agreed that the State could not use the novel in the State's case-in-chief, but that the State would 

be free, subject to the rules of evidence, to refer to the novel in rebuttal. Whilll the prosecutor 

questioned Mr. Prophet about the novel, Mr. Prophet's counsel objected on the basis of the 

stipulation and relevancy. The trial COUlt determined that the stipUlation did not prevent the 

novel's use during cross-examination ofthe petitioner and further, that the novel was relevant to 

the petitioner's credibility. 

The circuit court denied Mr. Prophet's post-trial motions for acquittal and for a new trial, ( 

and the court sentenced the petitioner to life in prison without the possibility of parole fur each 

first-degree murder conviction and a determinate teon oftwenty years for the arson conviction, 

with the sentences to run consecutively. The COUlt also awarded $11,220.61 in restitution. 

Post-Trial Litigation 

Mr. Prophet then appealed his conviction to the West Virginia Supreme Court of Appeals 

alleging 1) insufficient evidence to support conviction, 2) undue prejudice from crossexamination of Mr. Prophet on his novel, 3) prosecutor's eomments on post-arrest silence 

violated due process, 4) circuit court erred by not giving proffered instruction on opportunity, 5) 

prosecutor knowingly presented perjured testimony, 6) prosecutor made improper remarks, and 

7) prosecutor engaged in misconduct. State v. Prophet, 234 W. Va. 33, 762 S.E.2d 602, cert. 

denied, 135 S. Ct. 683, 190 1. Ed. 2d 396 (2014) reh 'g denied, 135 S. Ct. 1035, 1901. Ed. 2d ( 

___ORDER DENYING PETITION FOR HABEAS CORP'¥'U'"'S'--________ 
( 900 (2015). The West Virginia Supreme Court affinned the trial court's conviction and found 

none of the purported errors. ld. 

Mr. Prophet then appealed to the United States Supreme Court which denied the writ of 

certiorari. Prophet v. West Virginia, 135 S. Ct. 683, 684,190 L. Ed. 2d 396 (2014). Mr. Prophet 

petitioned the United States Supreme Court to reconsider and the Supreme Court denied a 

rehearing. Prophet v. West Virginia, 135 S, Ct, 1035, 190 L. Ed. 2d 900 (2015), Meanwhile, Mr, 

Prophet petitioned this court for a writ ofhabeas corpus and on May 12,2015 Petitioner, by 

couusel Lisa A. Green, filed his Amended Petition and Memorandum in Support which was 

timely filed and properly verified by the Petitioner. 

Subsequently, Mr. Prophet petitioned for a writ ofhabeas corpus and this Court 

dismissed 23 ofMr, Prophet's 25 claims for relief and ordered the Respondent to answer the 

( remaining two claims ineffective assistance oftrial counsel and ineffective assistance of 

appellate counsel. After this Court dismissed 23 ofthe claims, Mr, Prophet moved the Court to 

reconsider the dismissal, and the Court denied the motion, 

Conclusions of Law 

Petitions for writs ofhabeas corpus are "civil in character and shall under no 

circumstances be regarded as criminal proceedings or a criminal case." W. Va. Code § 53·4AI (a); State exre/, Harrison v. Coiner, 154 W. Va. 467 (1970), Persons convicted of crimes and 

currently incarcerated, may file a petition for writ ofhabeas corpus contending one or more of 

the following: 1) a denial or infringement ofthe petitioner's constitutional rights rendering a 

conviction or sentence void, 2) lack ofjurisdiction, 3) the sentence is beyond the autllorized 

maximum, and 4) "the conviction or sentence is otherwise subject to collateral attack upon any 

( 

ORDBR DBNYING PETITION PORHABBAS CORPUS 

Page 6 ofl4 .,..,-­
, . 

( 

ground of alleged error heretofore available under the common law or anY,statutory provision of 

this state." W. Va. Code § 53-4A-l(a). 

A habeas eorpus proceeding is markedly different from a direct appeal or writ oferror in 

that only errors involving constitutional violations shall be reviewed. 8y1. Pt. 2., Edwards v. 

Leverette, 163 W. Va. 571 (1979). Petitious for writ ofhabeas corpus are governed in part by 

West Virginia Code §53-4A-l. 'The habeas corpus statute "contemplates the exercisc of 

discretion by the court." Perdue v. Coiner, 156 W. Va. 467 (J 973). The circuit court denying or 

granting relief in a habeas corpus proceeding must llllike spccific findings offact and conclusions 

of law relating to each contention raised by the petitioner. State ex rel. Watson v. Hill, 200 W. 

Va. 201 (1997). To sustain his Petition, Petitioner must prove his claims by a preponderance of 

( 

thc evidence. 

"The court shall prepare and enter an order for summary dismissal ofthe petition ifthe 

contentious in filct or law relied upon in the petition have been previously and fmallyadjudicated 

or waived." W. Va. R Habeas 4(c). What's more, if"the petition contains a mere recitation of 

grounds without adequate factual support, the court may enter an order dismissing the petition, 

withont prejudice, with directions that the petition be refiled containing adequate filctnal 

support." Id. Finally, for "all petitions not dismissed summarily as provided in Rule 4(c), the 

court shall order the respondent to file an answer..." W. Va. R Habeas 4(d). 

Ifthe conrt upon review ofthe petition, exhibits, affidavits, or other documentary 

evidence is satisfied that petitioner is not entitled to relief, the court may deny a petition for writ 

of habeas eorpus without an evidentiary hearing. Sy1. Pt. 1, Perdue 11. Coiner, 156 W. Va. 467 

( 

(1973); State ex reI. Waldron v. Scott,.222 W. Va. 122 (2008). Upon denying a petition for writ 

of habeas corpus the court must make specific findings offact and conclusions oflawas to each 

ORDER DENYING PElTIION FOR HABEAB j::ORPUS __~_~~__ n ~ 
( contention raised by the petitioner, and must also provide specific findings as to why an 

evidentiary hearing was unnecessary. Syi. Pt. 1, State ex rei. Watson v. Hill, 200 W. Va. 201 

(1997); Syi. Pt. 4.; Markley v. Coleman, 215 W. Va. 729 (2004); R. Hab. Corp. 9(a). 

This Court reviews claims of ineffective assistance of counsel under the following twopart test: whether 

(1) Counsel's performance was deficient under an objective 

standard ofreasonableness; and 

(2) there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceedings would have 

been different. 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed2d 74 (1984); State v. Miller, 

459 S.E.2d 114 (W.Va. 1995). Then, to determine whether perfonnance was deficient, 

courts must apply an objective standard and determine whether, in ( light of all the circumstances, the identified acts or omissions were 

outside the broad range of professionally competent assistance 

while at the same time refraining from engaging in hindsight or 

second-guessing of trial counsel's strategic decisions. 

SyI. Pt. 6, State v. Miller, 194 W. Va. 3,459 S.E.2d 114 (1995). Thus, Petitioner has a heavy 

burden to prove previous counsel's ineffectiveness. "Where a counsel's performance, attacked 

as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, 

his conduct will be deemed effectively assistive of his client's interests, unless no reasonably 

qualified defense attomey wonld have so acted in the defense of an accused." Syl. Pt. 21, State v. 

Tlwmas, 157 W.Va. 640, 203 S.E.2d445 (1974). 

ANAI,YSIS 

. The Court has been fully briefed and an evidentiary hearing on this matter wonld not aid 

<. '1e Court in rendering its opinion. 

Ground 11 - Ineffective Assistance of Trial Counsel. 

ORDER DENYING PETITION FOR HABEAS CORPUS 
( 

Mr. Prophet alleges that his constitutional right to effective assistance of trial counsel was 

denied because trial counsel: 1) failed to thoroughly and independently investigate the crime, 2) 

failed to file a motion in limine to preclude the introduction of Mr. Prophet's book, 3) failed to 

move for limiting instruction on Mr. Prophet's book, 4) failed of trial counsel to object to 

questioning regarding post arrest silence, 5) fuiled of trial counsel to object to improper closing 

argument, 6) fuiled to object to bias of the trial court, 7) failed to lodge appropriate objections, 

and 8) failed to relay Mr. Prophet's version ofevents to the State. 

1) First, Mr. Prophet alleges that trial counsel failed to thoroughly and independently 

investigate the crime by not searching for blood evidence from the woods on the Devonshire 

property, failing to interview Mr. Medina, and failed to investigate reports of threats to law 

( 

enforc=nt. Mr. Prophet alleges that he hid in the woods after getting into a scuffle with the an 

attacker and may have lost some blood there. Mr. Prophet offers little evidence that his blood 

was in the woods, where the blood was in the woods, that he notified counsel to investigate 

where to search for blood, that counsel refused to search for blood, or that finding his blood in 

the woods somehow would have affected the outcome ofthe trial. Had trial counsel searched for 

blood in the woods it is very unlikely that it would have been found. 

Mr. Prophet alleges that his trial counsel should have immediately found and questioned 

Jospeh Medina. When Mr. Prophet was arrested, Mr. Medina had already been arrested on other 

charges and was represented by counsel. There is no indication that Mr. Medina would have 

cooperated with Mr. Prophet's counsel at the time. There is no indication that Mr. Medina would 

have offered any infonnation favorable to Mr. Prophet at the time, as Mr. Medina gave 

( 

\ 

incriminating statements against to the police and testified against Mr. Prophet at trial. 

ORDER DENYING PE'I111~l!fQJLHABJ:AS CORPUS. __ 
( 

Mr. Prophet alleges that his trial counsel failed to investigate reports to Jaw enfurcement 

about threats from Mr. Medina and that trial counsel only subpoenaed computer aided dispatch 

("CAD") sheet right before trial. The CAD sheets where introduced at trial and Mr. Prophet 

testified at trial about his calls to law enforcement about threats from Mr. Medina. AU of this 

evidence was used at trial. Because counsel obtained this evidence and used it at trial this there is 

no evidence that counsel's performance was deficient or that if he investigated this information 

earlier the outcome ofthe trial would have been different. 

In sum, Mr. Prophet fails to prove that counsel's investigation was deficient under an 

objective standard of reasonableness, or a reasonable probability that, but for counsel's 

inadequate investigation, the result ofthe proceedings would have been different. 

2) Second, Mr. Prophet alleges that trial counsel trial counsel was ineffective ~y failing to 

( file a motion in limine to preclude the introduction ofMr. Prophet's book. Trial counsel objected 

to the introduction of Mr. Prophet's book on multiple occasions, and the trial court heard 

extensive argument on the use ofthe book as evidence at trial. Finally the Supreme Court upheld 

he trial court's rulings regarding the book. State v. Prophet, 234 W. Va. 33, 762 S.E.2d 602, cert. 

denied, 135 S. Ct. 683, 190 L. Ed. 2d 396 (2014) reh'g denied, 135 S. Ct. 1035,190 L. Ed. 2d 

900 (2015). When counsel objeyted to the introduction of evidence, whether before or during 

trial, makes no difference for terms of effeetive assistance of counsel. Trial counsel preserved the 

alleged error ofintroducing the evidence, and the Supreme Court upheld the trial court's ruJing. 

It is clear tIui:t trial couusel tried to preclude the use ofthe book at trial, and that had trial counsel 

done so with a written motion in limine, the trial court's rnling would not have been different. 

Finally, even had the trial court precluded the use ofthe book in cross-examination it is unlikely 

{

, that the result ofthe trial would have beon different. 

ORDER DENYING PETmON FOR HABEAS CORPUS 
( 

3) Mr, Prophet alleges ineffective assistance of counsel for fuiling to move for a limiting 

instruction on Mr. Prophet's book. 'This evidence was direct rcbuttal evidence and not simply to 

impeach the credibility of Mr. Prophet, thus a limiting instruction would not have been 

appropriste. Even if a limiting instroction were appropriate, counsel need not move for a limiting 

instruction as it is within the strategic decisions of trial counsel whether or not to shine even 

further light on obviously damning evidence. Finally, had a limiting instruction been given as 

Mr. Prophet alleges was proper, it is very unlikely that the result of the trial would have been 

different. 

4) Mr. Prophet next alleges that trial counsel was ineffective by failing to object to 

questioning regarding post-Miranda silence, At trial, counsel objected to questioning regarding 

( 	 Mr. Prophet's silence. Mr. Prophet appealed the Court's ruling, and the Supreme Court found no 

error. Because, Mr, Manford did object to the State questioning Mr. Prophet about his silence, 

trial counsel's performance was not deficient. 

5) Mr. Prophet alleges that trial counsel was ineffective for failing to object to improper 

closing argument Although, trial counsel did not object to the closing argument, the supreme 

court reviewed the comments and found that the comments were not improper or unfairly 

prejudicial. Nonetheless, whether to object to prejudicial statements in a closing argument is a 

tough call for a trial attorney, because an objection will only shine a light on the prejudicial 

statement, especially if the objection is overruled. Although it is prejudicial to call a defundant a 

liar, in this case it was not unfairly prejudicial because the evidence in this case supported that 

conclusion. 'The jury, in rendering its verdict, also came to the conclusion that Mr. Prophet's 

( 	 testimony was not believable, and found him guilty. Accordingly, Counsel's performance was , 

not deficient and the outcome ofthe trial would not likely heve differed had counsel objected. 

ORDER DENYING p~mIQN FOR HNIEAS CORPUS,,--_~ 
( 

6) Mr. Prophet alleges that trial counsel was ineffective for fuiling to object to bias on 

the part ofthe trial court. There is no evidence ofbias by the trial court, thus this claim must fail. 

7) Mr. Prophet alleges that his trial counsel was ineffective because counsel: fuiled to 

"lodge other appropriate objections and to raise proper grounds for his post-trial motions," fuiled 

to question Lieutenant Hannison about some heroin purchase, failed to get Mr. Medina's false 

testimony stricken from the record, failed to present a constitutionally adequate closing, and 

presented the case in an inculpatory "style." Mr. Prophet further alleges a number of things that 

he says his counsel should have objeeted to including excessive court security, and the vietim's 

family "shouting" comments about Mr. Prophet in the presence of the jury, among others. The 

Court finds no deficiencies in trial counsel's perfurmance in any ofthe alleged deficiencies under 

this section. Further, Mr. Prophet does not offer any evidence that the trial outcome would have 

( been different had trial counsel performed the way that he believes counsel should have 

perfurmed. 

8) Mr. Prophet alleges that his trial counsel was ineffective because they fuiled "to relay 

version of events to the prosecutor and to assert his innocence." Mr. Prophet has produced no 

evidence that this occurred, nor has he produced evidence that counsel failing to relay attorneyclient communications is objectively unreasonable, nor is there any inkling of evidence that the 

outcome ofthe trial would have been different ifMr. Prophet's attorneys told the State wbat Mr. 

Prophet's testimony would be. At the very least, the state would have been even more prepared 

to cross-examine Mr. Prophet. Accordingly, this claim must fail. 

Because Mr. Prophet failed to prove any deficient performance oftrial counsel, and failed 

to show that the results would have been different had trial counsel performed as Mr. Prophet 

ORDER DENYING PETITION FOR HABEAS CORPUS 

J • ' 

( 

alleges counsel should have, Mr. Prophet's claim of ineffective assistance of trial counsel is 

DENIED. 

Ground 12 - Ineffective Assistance of Appellate Counsel 

Lastly, Mr. Prophet argues that his appellate counsel, Chistopher J. Prezioso, was 

ine:ffilctive because 1) counsel's argument was weakly presented, and 2) counsel's failure to raise 

the "constitutional underpinnings regarding Petitioner's righto remain silent." Respondent 

provided the Court with all of the appellate briefs. The Court has review all of the appellate 

briefs and the Supreme Court's decision and finds that there is no basis for Mr. Prophet's blanket 

assertion that the appeal was weakly presented. More specifically, the Court finds that appellate 

counsel did argue the "constitutional underpinnings regarding Petitioner's right to remain silent." 

(

, See Mr. Prophet's appellate brief at 44. Additionally, the Supreme Court of Appeals of West 

Virginia thoroughly analY7..ed the issue ofpost arrest silence in Section III C of its opinion. State 

11. Prophet, 234 W. Va. 33,43-44,762 S.E.2d 602,612-13 (2015). 

Because Mr. Prophet failed to prove any deficient performance of appellate counsel, and 

fhlled to show that the results would have beeo di:ffilrent had appellate couusel performed as Mr. 

Prophet alleges counsel should have, Mr. Prophet's claim of ineffective assistance of appellate 

counsel is DENIED. 

Conclusion 

The Court would not be aided by a hearing on this Petition, and for the foregoing reasons, 

Mr. Prophet's Petition for Habeas Corpus is DENIED. 

The Clerk shall enter this Order as ofthe date written below and shall transmit attested 

( copies to all counsel and parties ofrecord, including the Prosecuting Attorney for Berkeley 

County and Lisa A. Green, Esq., counsel for the Petitioner. 

mmRR DENYING PETIDON FOR BEAS CORPUS 
,~ , , 

( 

This is a final Order. The Clerk is directed to retire this matter from the aetive docket. 

ENTER this Z'iday of V~015. 

MICHAEL D. LORENSEN, JUDGE 

TWENTY-THIRD JUDICIAL CIRCtnT 

BERKELEY COUNTY, WEST VIRGINIA 

A TRUE Copy 

ATTEST 

Virginia M. Sine 

By: ~UitCourt 

Deputy Clerk 

( 


( 


ORDBRDB~GPETTI10NFORHABEASCORPDS