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.

1The 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).
1In 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.

2Based 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. 2Fourth, 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
3Petitioner 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. 3adjudicated 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 4Directing 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

4See Losh v. McKenzie, 166 W.Va. 762, 768-770, 277 S.E.2d 606, 611-12 (1981). 5Petitioner 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 OFBERKELEY COUNTY, WEST VIRGINIA STATE OFWESTVIRGINIA ex reI., ANTONIO PROPHET,



### ..,.::: Petitioner, ;'3**~** :JJ**l~·l** 14
.... 

### v. CIVIL CASENO. 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. 

# ;;;c:: eN 00 r " ;::0;:2:**~ ~**  --{ ORDERAPPOINTING COUNSEL AND DIRECTING COUNSEL**F~** "', PETITIONER TO FILE AN AMENDED PETITIONAND COMPLETED LOSBLIST



## .... "**.~** 

## -. =-'-.
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 ofthe petition and any exhibits in support thereof, the court determines that the petitioner may- have grounds for reliefbut 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 reliefwithin 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 ofHabeas Corpus, addressing all habeas corpus claims ofthe petitioner for 

### all convictions which result in his currentincarceration, 

### Within ninety (90) days. 

## (('
, FURTHER, the Court also withholds granting a hearing until Petitioner completes a 

### Lash list. "Bothpetitioners and their lawyers can discuss these issues privately and canbe 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 Petitionto 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.

# Ml~JUDGE TWENTY-TIllRD 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 twojurors 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

# ~~ Petltionol'.

# 1~;;!;"~ II. 

### fI.l'.;y
..

## .1 j.­

# ~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 TIAI- DISMISSAl.Or HABEAS.CORPUS

. 

# L I.i**~** 

## 'I Page I ofl9
. 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 miscooduct
. 9) Trial Court misconduct. 10)Insufficient evidence to 1Pport murdel' conviction. 1!)lneffective assistance ofTa! counsel. (2) Ineffective assistance ofappellate 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 0y 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 ofgrandjury. 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 ofinformed to convict. 

## (

ORDER OF 1'1\ TIAL DISMISSAL**OH1AI3I!l\~<;:ORPUS** 

## I Pnge2 of 19 

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

### MIty, 

# n 2016 9: 12AM No, 

### 0409 p, 

### 4 

# t 

# ! ( FACTS In 2012, a BerKeley COlUllyj 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 oftwo

# COUI1~lOf first degree mUI'der without a recommendation ofmercy lind one 

### COllot ofarson. 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 ofthe ffense. The garage apartment was located at the eml of Angela's parents' driveway about 75 yards from her parents' house. The evening ofJune 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 ofthe 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 ofdeath,

# 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 ofJune 6th and indicated thai he was

# str~ded in

. I 

### BerkeJey County, West Virginia an needed aride. '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 "stuffhappened." Mr. Prophet testified he cam to Martinsburg, West Virginia, at the behest ofJ04eph 

### 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) 

# I**un~** 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 ." 

### "",,"'ioghim i,

# ii<

.'-

## ~**~ ~.~**  - -- - - , ORDER GF PAiIHIAb-DISM ISSAL-0f' HABEASeClI11US,-.
-

## ~ 

# -1-

- --

Received Time May, 23. 2016 9:17AM No,1 

### 2495 ra

### s c4of'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"

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### , ..' 

### . ,.



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

### the laptop ill some weeds for Mr. M dinato 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 ofdetermining 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

# l knife, 

### 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. 1 

### 2495 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<,..",

# L hod 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 ofthe 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 ofparole 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 ofMr. 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 ofhabeas 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 bJthe Petitioner. : 

### (
, Cllnclusions ofLaw I Petitions for writs ofbabeas 

### 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 ofcrir(les and cun'elltly incarcerated, 

### may file a peLion for writ ofhabeas corpus contending one or

# lLre of the following; 1) a 

### denial or 

### infringllment ofthe 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 ofalleged errorheretofore 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. 1 589,289 S.E.2d 435 (1982).
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 

### acomplete 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 

### swhich resulted in the conviction 

### and

# ~cl1tence ..

# l , or 

### in any otherproceeding 01" proceedings instituted by the petitioner to secure relieffrom hiJ conviction or sentence, there was 

### a

# ~eCiSiOl1 on the modts thereofafter 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 ifthosJ 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 reliefthat 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

. h' l' d' t d'" h . . h b 

# Ib 

# L WlS 10 raise a grounc walYe IU a 8\1 sequen procee mg, It IS t e pellhoner t at ears i',e burden 

### ofdemonstrating 

### thal such Jaiver was less than knowing and intelligent. 

### Ford v' Coiner, 156 W, Va, 362,196 S.E.2d 91 (19J.2). 

# I Ahabeas 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 ofhabeas 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 ofthe 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 Ifthe court upon review oft epetition, exhibits, alIidavits, or other documental'. evidence is satisfied that petitloller i' not entitled to l'elief, the court may dellY apetitio1for 

### writ ofhabeas 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,,, ,f

# mot 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 ofthe 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 impartialjury due to pre-trial and trial publicity. Petiti,ner cites that 

### many members ofthe jury panbl were tainted by twos years ofmedia coverage. In support ofthis claim, Petitioner cites voir dt (hat many potential jnrors had beard ofthe 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 ofthis 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 oferrol' 

### by knowingly nnd intelligently failin to 

# "","." 'M. 00",00"'" " .", ""

# I'
'Woo 

### I. 

# A"oro

# ""y, Oro,"" 

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

## :( because 

### the Petitioner [I1Ilvcd 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 thejm'Ol's and that the otherjuror:ended lip sitting on the case. Petitioner's trial 'ounsol moved to strike bothjurors for cause. The Court notes that: 

## j I A trial court's failure to rem ve 

### n biasedjuror 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 ofthe 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 ofthis 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 ofel1'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 ofhis 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 ofhis 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 ofIhis 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 ofthe West Virginia Constilution, Article 

# m. . Section 10, and the presump ion 

### ofinnocence 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 'gdenied. 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! sience 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 ndjudieated 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.' oftrial 

### 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 

### I DISMISSED. 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 ofhis 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** -**--~** ­ 'T
­ 

### ", Received T;me May, 23, 

### 2016 9:17AM No. 

### 2495 Pagel4ofl9 

### I**~ay** 

### 23. 2016 9: 14AM " 

## ( Petitioner asserts thftt he waJ denied his rights to due process, 

### to a fair trial, to

# a~sistance ofeounsel 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 ofJround 5 which the Court DISMISSES as explained above. 

### As to tile other nine

# allegati~ns ofprosecutoria

### I misconduct, 

### Mr. Prophet makes'onlY conclusory statements ofthe grounds without showing evidence ofactual prejudice. The Court notes the unique Jile 

### a prosecutor 

### has in O\1r system of justice:

, 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 of remurk 

### 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 ofgrounds 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 ofevidence 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 ofthejury and S1'e the very 

### types ofcomments that'ajlldge makes 

### when determining the admissibility

# if

. evidence, Accordingly, this isjust a mere recitation ofa 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 thejudges 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 ofprejudice. Accordingly, Ground 9B is DISMISSED. Under Ground 9F,

# pelitione~ alleges that the tone ofthe trial court when direoting Petitioner to answer a question posch by the pl'OSeclltor constituted misconduct and oaJed 

### P,1itim. 

### Proj"""', 

### Pol iti"" ,i'" " ru" " 

### "dm

# m, Coo. ,1 0 

### I.""

# ,,~ 0'00",

# r i, DISMISSED, 

# I
Grmmd 9H alleges that the tial court coached the prosecutor, butprovides 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 ofpeTioner's allegations of judicial misconduct llre

# mel'~ recitations olher purported errors inqluding: misconduct for failing to strike 2jurors 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 5supra), misconduct by falling to correct prosecutorial misconduct (G!ound 8 supra), Because these allegations 

## 8rf dismissed above, there was 

## lIOjudicial 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 thatjSUffiCient 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 IIbriefor proposed order; I 

## I 12) Ineffective assistance

# O!lIPpeuate counsel. 

# ! I Respondent is directed to re pond to Ground 11 within 90 dnys ofthe date

# Of~hiS order with either a briefor proposed olde 

## r . 13)The COllrt dismisses Ground 13

- .!<'allure by Supreme Court of

### Appeal~ ofWest
. 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 ofthis c se and argued**multipl~ differ~nt**  ways above. Here, Petitioner does not provide even the slightest bit oflegal 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 ofcrime 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. 

# I 

# l

18) The Court dismisses G, ound 18

- no preliminary hearing

- because

# t~e Petltioll contains a mere recitation ofthis 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 ofthis 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 ofthis grollnd without IIny tiletuDI support.

ORDER OF PARTIAL DISMISSAL OFI1A13BA.-"S"'C"'O"'R
...

P""'U"-'S'--

__**.~+_-** 

## ,. I**Pel!.~** 180fl9 

# r; Received Time May, 

### 23. 2016 9: 17AM No, 2495 I 

### 19,
.... ,),<'," ',- , 

### .**~** 

### .**~**, 

### .)0,0409" P. 20

,**.~** 

### 2016 9: 15AM

,. 

## ( 2J}The Court dismisses froulJd 23

- refusal to subpoena witnesses

- because.the Petition contains II mc,e recitlltion ofthis ground without any factual

### s~pport, 24) TIle Court dIsmlsse!

## G~ollnd 24

- refusal to turn over witness notes aftt.· witness bas testified

-

### becaus~ the Petition cOlltains II mere recitation of this ground wilhon I 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 

# 1 within 

### 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'iefwithiti 30 days of 0 response being

# ~Ied. Parties arc encouraged to provide t.e Court with digital and searchable copies ofbriefs 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: 

### R

ecelve ,: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 ofMr. 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 countyjury 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. 

### Intotal, Mr. Prophet was 

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

### one count ofarson. 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 ofAngela'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. SidneyDevonshire 

### 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 inthe middle ofthe living room floor ofthe 

# ( 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 ofdeath, 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 inblood-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 onhis 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 ofJune 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 JosephMedina 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, inMay 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 arelationship. 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 inthe 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.

. ORDERDENYING PETITION FOR HABEAS**CO~RP=U",-S** ___ ___ P e30fl4J •• 

### ( 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 ofdetennining 

### 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 atthe 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, butthe men promised to return. 

### Mr. Prophetinquired about thetwo men and Ms. Devonshire denied knowing them. 

### Mr. Prophettestified 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. Prophettestified that a fight ensuedbetween him and Boogy 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 thetwo attackers gained conn:ol, Boogy took him downstairs for the purpose ofbreaking into the garageto steal something and thatwhen he arrived back upstairs inthe apartment, Angela was lying on a mattress with her throat slit and the three-year-oldAndre was beside her in a pool ofblood. Accordingto 

### Mr. Prophet, atthatpoint he sprayed the gun-wielding Baltimore Orioles-capped manwith mace and fled the apartment. 

### Mr. Prophet testified thathe then ran through the woods, shots were fired at him 

### and he heard the voice ofa third man whom he thought mayhave been 

### Mr. Medina. 

### Mr. Prophettestified that, upon seeing smoke coming from the apartment, he ran backinto the apartment, grabbed sixweek-old Daronte, and placed him on Angela's parents' patio. 

### Mr. Prophet purported to then bang onthe Devonshires' door and when nobody answered, he panicked and fled. 

### Mr. Prophet 

### (

ORDER DENYJNGPETIDONFOR HABEAS CORPUS Page 4 ofl4

### ( admittedthat 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 

### aprior 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 ofevidence, to refer to the novel inrebuttal. Whilll the prosecutor questioned Mr. Prophet about the novel, Mr. Prophet's counsel objected on the basis ofthe 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 inprison without the possibility ofparole 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 inrestitution. Post-Trial Litigation Mr. Prophet then appealed his conviction to the West Virginia Supreme Court ofAppeals alleging 1) insufficient evidence to support conviction, 2) undue prejudice from crossexamination ofMr. 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 inmisconduct. 

### 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 ofthe 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 awrit ofhabeas corpus and on May 12,2015 Petitioner, by couusel Lisa A. Green, filed his Amended Petition and Memorandum inSupport which was timely filed and properly verified by the Petitioner. Subsequently, Mr. Prophetpetitioned for a writ ofhabeas corpus and this Court dismissed 23 ofMr, Prophet's 25 claims for reliefand 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 ofLaw 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 ofcrimes and currently incarcerated, may file apetition for writ ofhabeas corpus contending one ormore of the following: 1) a denial orinfringement ofthe petitioner's constitutional rights rendering a conviction or sentence void, 2) lack of jurisdiction, 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 ofalleged 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 reliefin a habeas corpus proceeding must llllike spccific findings offact and conclusions oflaw 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 apreponderance of 

## ( thc evidence. "The court shall prepare and enter an order for summary dismissal ofthe petition ifthe contentious infilct or law relied upon inthe 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 notentitled to relief, the court may deny a petition for writ ofhabeas 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 ofhabeas corpus the court must make specific findings offact and conclusions oflawas to each

ORDERDENYING PElTIION FORHABEABj::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 ofineffective assistance ofcounsel 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 ofall 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 oftrial 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 ofaction, 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 ofan 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 inrendering its opinion. Ground 11 - Ineffective Assistance ofTrial Counsel.
ORDER DENYING PETITION FOR HABEAS CORPUS

### (

Mr. Prophet alleges that 

### his constitutional right to effective assistance oftrial 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 ofMr. 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 oftrial counsel to object to improper closing argument, 6) fuiled to object to bias ofthe 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 inthe 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 inthe woods 

### it is very unlikely that itwould have beenfound. 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 attrial this there is

no evidence that counsel's performance was deficient or that ifhe investigated this information earlier the outcome ofthe trial wouldhave beendifferent. 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 thattrial counsel trial counsel 

### was ineffective**~y** failing to 

## ( file a motion in limine to preclude 

### the introduction of

### Mr. 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 attrial. 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 ofeffeetive assistance ofcounsel. Trial counsel preserved the alleged error ofintroducing the evidence, and the Supreme Court upheld the trial court's ruJing. Itis 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 of

### the trial would have beon different.

ORDERDENYING PETmONFORHABEAS CORPUS

## ( 3) Mr, Prophet alleges ineffective assistance ofcounsel 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 ifa 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 ifthe 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 andto 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 ofthings 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 ofthejury, among others. The Court finds no deficiencies intrial 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 ofevidence that the outcome ofthe trial wouldhave been different if

### Mr. 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

ORDERDENYING PETITION FORHABEAS CORPUSJ • ' 

### ( alleges counsel should have, Mr. Prophet's claim of ineffective assistance of trial counsel is DENIED. Ground 12 - Ineffective Assistance ofAppellate 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 ofthe appellate briefs. The Court has review all ofthe 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 ofits 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 ofappellate 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 ofappellate counsel is DENIED. Conclusion The Court would not be aided by ahearing on this Petition, and for the foregoing reasons, Mr. Prophet's Petition for Habeas Corpus is DENIED. The Clerk shall enter this Order as of

### the 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 

### ATRUE Copy ATTEST Virginia M. 

## Sine By:

## ~Uit Court Deputy Clerk 

## (



## (**ORDBRDB~GPETTI10NFORHABEASCORPDS**