STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Dale Edward Guthrie, Petitioner Below, Petitioner 

### FILED

vs) No. 13-1201 (Kanawha County 13-P-290) June 6, 2014

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS Marvin Plumley, Warden, Huttonsville Correctional Center, OF WEST VIRGINIA

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Dale Edward Guthrie, appearing pro se , appeals the November 8, 2013, order of the Circuit Court of Kanawha County that denied his instant petition for a writ of habeas corpus. Respondent warden, by counsel Laura Young, filed a response. Petitioner filed a reply.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 1994, petitioner was convicted of first degree murder in the death of Stephen Todd Farley. Petitioner was sentenced to life in prison with the possibility of parole. In State v. Guthrie

, 194 W.Va. 657, 461 S.E.2d 163 (1995), this Court reversed petitioner’s conviction and remanded the case for a new trial. Following his second trial, petitioner was again convicted of first degree murder and sentenced to life in prison with the possibility of parole.

In October of 1996, petitioner appealed his second conviction to this Court making the following assignments of error: (1) the circuit court erred in instructing the jury that gross provocation constituted an element of voluntary manslaughter; (2) the circuit court erred in instructing the jury that the gross provocation necessary for manslaughter was objective, and not subjective; and (3) the circuit court erred in refusing to give instructions taken verbatim from the body of this Court’s opinion in Guthrie , which provided examples and factors for a jury to consider in determining first degree murder. This Court refused petitioner’s appeal in January of

1997.

On November 15, 2007, petitioner filed his first petition for a writ of habeas corpus raising the following issues: (1) trial counsel was ineffective in not addressing whether there was sufficient evidence of first degree murder; (2) petitioner’s constitutional rights were violated because he was not promptly presented to a magistrate following his arrest; and (3) insufficient evidence existed to support a conviction on first degree murder. The circuit court did not appoint habeas counsel for petitioner, but did require respondent warden to respond to the petition.

1Following respondent warden’s response, the circuit court denied the petition on September 19,

2008.

Petitioner filed the instant habeas petition on May 28, 2013, raising the following grounds for relief: (1) trial counsel was ineffective (a) by not arguing that the State did not promptly present petitioner to a magistrate, (b) by not moving to exclude testimony with regard to the occupation of the victim’s father; and (c) by not appealing the circuit court’s decision to allow an inflammatory line of questioning by the State; (2) the circuit court denied petitioner a fair trial by overemphasizing “gross provocation” at the expense of the element of malice in instructing the jury on voluntary manslaughter; and (3) the cumulative effect of these errors by counsel and the circuit court deprived petitioner of a fair trial. Once again, the circuit court did not appoint habeas counsel for petitioner, but required respondent warden to respond to the petition. Petitioner filed objections to the circuit court’s refusal to appoint him counsel. Petitioner also filed a reply to respondent warden’s response. On November 8, 2013, the circuit court denied the petition in a twenty-three page order.

Petitioner now appeals the circuit court’s November 8, 2013, denial of his instant petition. 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).

On appeal, petitioner asserts that he made factual allegations sufficient to entitle him to the appointment of counsel and an omnibus habeas corpus hearing. Petitioner argues that the circuit court acted unfairly in not appointing him counsel when the court ordered a response be filed by respondent warden’s counsel. Petitioner argues that the circuit court also erred in ruling that the denial of petitioner’s first petition in 2007 barred consideration of the instant petition under the doctrine of res judicata. Finally, petitioner asserts that the circuit court exhibited bias against him in making various rulings unfavorable to him.

Respondent warden counters that “[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 therewith show to such court’s satisfaction that the petitioner is entitled to no relief.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). Respondent warden further argues that the circuit court did not rely on the doctrine of res judicata, 1 but rather

1 As petitioner correctly notes, the doctrine of res judicata bars subsequent habeas petitions only “where there has been an omnibus habeas corpus hearing at which the applicant for habeas corpus was represented by counsel or appeared pro se having knowingly and intelligently

2reexamined the record and disposed of each of the issues in the 2013 petition with adequate findings. Last, respondent warden asserts that not only did petitioner not follow the proper procedure for moving for the circuit judge’s recusal, but also that the only basis petitioner now alleges for seeking recusal is that the judge ruled against him.

This Court finds that the circuit court’s order denying habeas relief adequately addresses the three issues raised in the instant petition. As to the issues petitioner raises solely on appeal, we reject those arguments as well. First, while petitioner complains of the circuit court’s practice of requiring a response to the petition, that practice did not deprive the circuit court of its authority

under Perdue to deny the petition without a hearing and without appointing counsel for petitioner. Second, the Court finds that, from a review of the circuit court’s order and the appendix record, respondent warden is correct that the circuit court did not rely on the doctrine of res judicata in denying the instant petition. Third, the mere fact that the circuit court ruled against petitioner does not constitute a sufficient basis to question the circuit court’s impartiality.

Having reviewed the circuit court’s “Final Order Denying Amended Petition for Writ of Habeas Corpus,” entered November 8, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error remaining in this appeal. 2
The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha County and affirm its November 8, 2013, order, denying petitioner’s instant petition for a writ of habeas corpus.

Affirmed.

waived his right to counsel.” Syl. Pt. 2, in part, Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981).

2 Petitioner contends that in denying relief on his prompt presentment claim, the circuit

court should have addressed State v. [George] Guthrie , 173 W.Va. 290, 315 S.E.2d 397 (1984), which he alleges is analogous to his case. This Court finds that the circuit court did not need to

address [George] Guthrie because that case is readily distinguishable from petitioner’s. In petitioner’s case, upon his arrest, petitioner was willing to give a statement to the police. In fact, the circuit court found that the 1995 trial transcript reflected that petitioner wanted to write out his statement himself because “he didn’t want to leave anything out.” See also State v. [Dale] Guthrie

, 194 W.Va. 657, 665-66, 461 S.E.2d 163, 171-72 (1995) (petitioner made a statement at the police station and was described as “willing to cooperate.”). The evil the prompt presentment rule seeks to prevent is a delay by the police in order “to encourage the suspect to make a statement,” but “our prior cases do permit delay in bringing a suspect before a magistrate when the suspect wishes to

make a statement .” State v. DeWeese , 213 W.Va. 339, 345 n. 10, 582 S.E.2d 786, 792 n. 10 (2003) (Emphasis added.).

3ISSUED: June 6, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II

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