1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Herman Catlett

, Petitioner Below, Petitioner

v s

. ) No. 19

- 0179 ( Berkeley County 17

- C

- 55 )

Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Herman Catlett

, by counsel Nicholas J. Matzureff , appeals the January 31, 2019,

o rder of the Circuit Court of Berkeley County denying his seventh amended petition for a writ of habeas corpus

. Respondent, Donnie Ames, Superintendent, Mt. Olive Correctional Complex , by

counsel Shannon Frederick Kiser , filed a response in support of the habeas court ’s decision

. On appeal, petitioner argues that the habeas court erred in denying habeas corpus relief because petitioner received ineffective assistance of counsel and was denied the opportunity to elaborate

on his ineffective assistance of counsel claims at an omnibus evidentiary hearing.

This 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

The body of Charles Arvin (“ the vict im”) was found in his vehicle on July 1, 1984. The

victim’ s vehicle was seen two nights before, parked at the residence of petitioner and his then

girlfriend

, Penny Stanley. The body was covered in household trash that included an envelope

addressed to pet itioner and several articles with Ms. Stanley’ s fingerprints. Petitioner and Ms. Stanley were subsequently arrested and charged with the victim’s murder. Petitioner was released on bond while Ms. Stanley remained incarcerated. However, Ms. Stanley later pl ed gui lty to being an accessory after

- the

- fact to the victim’s murder and agreed to testify at petitioner’ s trial.

Ms. Stanley testified at petitioner’ s trial as follows : (1) the victim came to pet itioner’s and Ms. Stanley’s residence on June 29, 1984; (2) Ms. Stanley went onto the front porch while petitioner and the victim talked; and (3) Ms. Stanley saw the victim dead on the floor when 

### FILED April 23, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 petitioner called her in to the kitchen. Ms. Stanley further testified that she saw a club in the sink

with wat er running over it to ostensibly wash blood off it

. 1 Finally, Ms. Stanley testified that the victim often sold drugs to petitioner and that petitioner recovered twenty V alium pills and approximately $900 in cash from the victim after murdering him . Ms. Stanley ad mitted that she helped petitioner put plastic bags over the body and drag it to the victim’ s vehicle

. Petitioner then

dro ve the vehicle away with the victim’ s body in it. Subsequently, petitioner was convicted of

first

- degree murder and was sentenced to a life term in prison without the possibility of parole. This Court affirmed petitioner’s conviction in State v. Catlett

, 180 W.Va. 447

, 376 S.E.2d 834 (1988).

Since his murder conviction, petitioner has filed a total of seven petitions for habeas corpus

relief in the circuit court and two additional habeas petitions in federal court. In his previous habeas

court habeas corpus proceedings, petitioner was afforded two omnibus hearings, one in 199 1 and

one in 1998. Petitioner filed his seventh and most recent petition for a writ of habeas corpus on June 29, 2018. He argued before the habeas court that his 2002 habeas counsel was ineffective for failing to raise a Brady 2 violation regarding the nondisclosure of a letter from the FBI to one Lieutenant Kenneth Blake. In that letter, the FBI notified Lieutenant Blake that Fred Zain, who performed forensic work on petitioner’s criminal case, had previously failed two FBI fore nsic

courses. Petitioner further argued that his prior habeas counsel was ineffective for failing to have further DNA testing per formed on the State’s evidence and for failing to assert due process violations with regard to the testimony of Sergeant W. Ran dy Smith

, who testified regarding hairs

discovered at the crime scene.

On January 31, 2019, the habeas court denied petitioner’s petition for a writ of habeas

corpus. It found that all of the alleg ations raised by petitioner had previously been finally

ad

judicated or wa ived. It also found that p etitioner has had three prior full post

- conviction habeas proceedings with appointed counsel and hearings before the habeas court. Syllabus Point 4 of Losh

v. McKenzie , 166 W. Va. 762, 277 S.E.2d 606 (1981) provides that

A prior omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known; however, an applicant may still petition the court on the following grounds: ineff ective assistance of counsel at the omnibus habeas corpus hearing; newly[

- ]discovered evidence; or, a change in the law, favorable to the applicant, which may be applied retroactively.

166 W. Va. at 762

- 63 , 277 S.E.2d at 60 8.

1 Several days before petitioner’s trial, the alleged murder weapon, a tree branch, was

discovered in the basement of petitioner and Ms. Stanley’s residence

. The S tate had the branch analyzed and found no traces of latent fingerprints, blood

, or hair.

2 Brady v. Maryland , 373 U.S. 83 (1963) (requiring the State to preserve and produce exculpatory evidence in criminal proceedings).3 The habeas court also determ ined that even if the merits of petitioner’s arguments had been considered, he would not have been entitled to habeas corpus relief. Alt hough petitioner’s 2002

habeas counsel did not specifically raise a Brady violation regarding the testimony of Mr. Zain,

the main focus of that proc eeding was the evidence used at trial in light of In re West Virginia State Police Crime Lab, Serology Div ision

, 190 W. Va. 321, 438 S.E.2d 501 (1993) (herein

referred to as Zain I )

. 3 The habeas court found that al tho ugh Mr. Zain testified in petitioner’s trial

, his testimony largely concerned chain of custody. While Mr. Zain performed an analysis of the murder weapon , he found no blood, hair, or tissue on the weapon

. As such, the habeas court found

that Mr. Zain’s tes timony was not prejudicial to petitioner’s case , and his 2002 habeas counsel was

not ineffective for allegedly failing to raise a Brady claim regarding the nondisclosure of the FBI

letter. The habeas court further determined that prior habeas counsel was n ot ineffective for failing to order further DNA testing of the evidence. The habeas court found that this allegation was previously adjudicate d or waived. It noted that petitioner admitted to killing the victim under oath

on multiple occasion s. The habeas court also found that if further DNA testing had been performed, it would have just further incriminated petitioner. Habeas counsel was therefore not ineffective for failing to have the evidence independently tested. The habeas court also determined that p rior habeas counsel was not ineffective for failing to raise due process violations regarding Sergeant Smith’s testimony. Sergeant Smith testified that hairs found on a blanket wrapped around the victim’s body matched Ms. Stanley’s hair in length, color, t exture, and pigmentation. The habeas court found that Sergeant Smith did not testify that the hair belonged to Ms. Stanley, merely that it matched in appearance as no hair evidence was i ntroduced at petitioner’s trial. The habeas court

also found that it w as unclear if petitioner even had standing to challenge Sergeant Smith’s testimony. It is from the habeas court’s January 31, 2019, order that petitioner appeals.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

“In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three

- prong standard of rev iew. 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.” Syllabus point 1, Mathena v. Haine s , 219

W. Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride , 226 W . Va. 375, 701 S.E.2d 97 (2009).

On appeal, petitioner raises two assignments of error. First, petitioner contends that the

habeas court erred in denying habeas corpus relief on the basis of ineffective assistance of counsel. He argues, as referenced above, that his previous habeas counsel was ineffective for failing to

assert a Brady violation in regard to the State’s evidence of Mr. Zain’s incompetence and

falsi fication of evidence in prior cases. He also argues that prior habeas counsel was ineffective in

3 In Zain I , it was discovere d that Mr. Zain, former director of the Division of Public Safety serology department, falsified forensic evidence in several criminal cases. See In re W. Va. State Police Crime Lab, Serology Div., 190 W. Va. 321, 438 S.E.2d 501 (1993).4 failing to obtain independent DNA testing of the evidence, failing to obtain the raw data and specific testing procedures Mr. Zain used, and failing to assert a due process violation regarding Sergeant Smith’s trial testimony. We disagree.

Claims of ineffective assistance of counsel are governed by the two

- prong test set forth in Strickland v. Washington , 466 U.S. 668, 687 (1984), which states that, in order to prevail on a claim of ineffective assistance of counsel, petitioner must show tha t “ (1) [c] ounsel ’ s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceedings would have

been different.” Syl. Pt. 5, in re levant part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Furthermore,

[i] n reviewing counsel’s performance

, 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. Thus, a reviewing court asks whether a reasonable lawyer w ould have acted, under the circumstances, as defense counsel acted in the

case at issue.

Id. at 6, 459 S.E.2d at 11 7 . This Court “always . . . presume[s] strongly that counsel’s performance was reasonable and adequate[,]” and

[t]he test of ineffectivene ss has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We only ask whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue. We are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at the time, in fact, worked adequately.

Id. at 16, 459 S.E.2d at 127 (emphasis in original) . Certainly, with the benefit of hindsight, “one always may identify shortcomings, but perfection is not the standard for ineffective assistance of

counsel.” Id. at 17, 459 S.E.2d at 128.

Here, p etitioner fail s to satisfy the first prong of Strickland/Miller . He asserts that prior

habeas counsel wa s ineffective for failing to raise a Brady violation regarding the FBI letter about

Mr. Zain. In syllabus point 2 of Zain I , this Court held that, “[a] lthough it is a violation of due process for the State to convict a defendant based on false evidence, su ch conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict .” 190 W.Va. at 322, 438 S.E.2d at 502. In syllabus point 3 of Zain I , this Court further held:

“Where improper evidence of a non [

- ] constitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the

inadmissible evidence must be removed from the State ’ s case and a determination made as to whether the remaining evidence is su fficient to convince i mpartial minds

of the defendant’ s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is5 sufficient to support the conviction, an analysi s must then be made to determine whether the error had any prejudicial effect on the jury.” Syllabus Point 2, State v.

Atkins , 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied , 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

Mr. Zain’s involvement i n petitioner’s case was considered in his 2002 habeas p roceeding

wherein i t was determined that Mr. Zain’s testimony was not prejudicial to petitioner’s case. Mr. Zain testified regarding chain of custody and asserted that he found no blood, tissue, or DNA on the murder weapon. Therefore, prior habeas counsel was not ineffective for failing to obtain evidence discrediting Mr. Zain’s testimony. Further, e ven when Mr. Zain’s testimony is removed from the case, there was still sufficient evidence to sustain pe titioner’s conviction for first

- degree

murder. The murder weapon was f ound in the basement of the residence in which petitioner

reside d. The victim’s body was discovered covered in trash, which contained a letter addressed to petitioner, and the fingerprin ts of Ms. Stanley were discovered on several items. Ms. Stanley later pled guilty to being an accessory after the fact and testified at petitioner’s trial that he killed the victim with a tree branch. Further, petitioner admitted several times under oath a t his second habeas proceeding that he killed the victim. We therefore find that prior habeas counsel was not ineffective for failing to raise a Brady violation.

Likewise, prior habeas counsel was not ineffective for failing to obtain independent DNA

tes ting of the murder weapon or for failing to assert a due process violation regarding Sergeant Smith’s trial testimony. Mr. Zain testified at trial that there was no DNA evidence found on the murder weapon. More importantly, petitioner confessed to the murd er under oath. We further find that prior habeas counsel committed no error in failing to challenge the grand jury testimony of Sergeant Smith. Sergeant Smith testified that hairs matching the texture, pigmentation, le ngth, and color of Ms. Stanley’s were found on the blanket in which the victim’s body was wrapped. Sergeant Smith did not testify that the hairs were a direct match for Ms. Stanley. Most importantly, there was no hair evidence introduced at petitioner’s trial and therefore no need for prior ha beas counsel to challenge the testimony.

Petitioner’s second assignment of error is that the habeas court erred in denying him the opportunity to expand upon his ineffective assistance of counsel claim during an omnibus evidentiary hearing. He asserts th at the habeas court arbitrarily overlooked pri or habeas counsel’s

ineffectiveness and the errors at his trial in denying him an omnibus hearing.

In Syllabus Point 3 of Anstey v. Ballard , 237 W. Va. 411, 787 S.E.2d 864 (2016) , we held:

“‘A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary

evidence filed there with show to such court ’ s satisfaction that the petitioner is entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner , 156 W. Va. 467, 194 S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines , 215 W. Va. 698, 601 S.E.2d 18 (2004).6 Here, based on our review of both the record and our decision in Anstey , we find no error i n the habeas court’s decision not to hold an omnibus hearing.

For t he foregoing reasons, we affirm the habeas court’s January 31, 2019, denial of petitioner’s petition for a writ of habeas corpus.

Affirmed.

ISSUED: April 23, 2020

CONCURRED IN BY:

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

DISQUALIFIED:

Chief Justice Tim Armstead