1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Yasser Abdelhaq, Petitioner Below, Petitioner,

vs.) No. 17-0078 (Ohio County 06-C-93)

Ralph Terry, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Yasser Abdelhaq, by counsel Kevin L. Neiswonger, appeals the Circuit Court of Ohio County’s December 29, 2016, order denyi ng his petition for writ of habeas corpus. Respondent Ralph Terry 1 , Superintendent, Mt. Olive Corre ctional Complex, by counsel Gordon L. Mowen II, filed a response in support of the circ uit court’s order. On a ppeal, petitioner argues that the circuit court erred in denying habeas reli ef because he received ineffective assistance of

counsel.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In January of 2000, petitioner was indicted on one count of first-degree murder for the stabbing death of Dana Tozar (“the victim”). Fo llowing an August of 2000 jury trial, petitioner was convicted of first-degree murder and sentenced to a term of incarceration of life, without mercy. Petitioner appealed his c onviction, and this Court thereaf ter vacated the conviction and

remanded the matter for a new trial. See State v. Abdelhaq , 214 W.Va. 269, 588 S.E.2d 647 (2003).

Thereafter, petitioner was indi cted for a second time on one c ount of first-degree murder and was represented by attorneys Robert G. McCo id and John J. Pizzuti. During his bifurcated

1 Effective July 1, 2018, the positions former ly designated as “wardens” are now designated “superintendents.” See W.Va. Code § 15A-5-3. Moreover, petitioner originally listed David Ballard as respondent in this action. Mr. Ballard is no longer the superintendent at Mt. Olive Correctional Complex. Accordingly, the a ppropriate public officer has been substituted pursuant to Rule 41 of the West Virg inia Rules of Appe llate Procedure. 

### FILED
November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 trial, petitioner’s defense was that he could no t have deliberately and intentionally killed the victim because he was in a psychotic state due to drug use. As such, petitioner sought a

conviction on the lesser-included offense of second-degree murd er. At the conclusion of his second jury trial, petitioner was again convicted of first-degree murder. Ultimately, the jury did not recommend mercy, and petitioner was sentenced to a term of incarceration of life, without mercy. Following this conviction, petitioner’s sec ond appeal to this Court was refused by order entered in May of 2005.

In 2006, petitioner initiated habeas corpus proceedings. Following a summary denial of his petition for writ of habeas corpus, this Cour t granted petitioner relief and ordered the matter remanded for the holding of an omnibus hearing on the limited issue of ineffective assistance of

trial counsel.

In August of 2016, the circuit court held an omnibus hear ing. During the hearing, Mr. McCoid testified extensively to the trial strate gy and tactics employed, as well as to specific instances wherein he opted not to object to certai n statements from the prosecution that petitioner alleged constituted prosecutorial misconduct. Mr. McCoid further testified unequivocally that petitioner understood “the full ramifications” of the trial strategy to admit guilt and ask for a conviction of second-degree murder and gave his consent. At seve ral points during his testimony, Mr. McCoid addressed discussions the attorneys had with pe titioner concerning the trial strategy, petitioner’s understanding of the risks and benefits of such a strategy, and his consent to pursuing it. Having the benefit of seeing the State’s theo ry of the case during the first trial, Mr. McCoid testified that they reevaluated the trial strategy since this “was not a case about whether [petitioner] had taken [the victim’s] life, ” but was rather “about wh at his mental status

was at the time that he did so.” Mr. McCoid cited to portions of his open ing statement in the case where he admitted that petitioner’s guilt was not in question but urged the jury to convict him of second-degree murder due to the absence of premeditation. Based on th e opening, Mr. McCoid

indicated that

[i]t is inconceivable that I would have given an openi ng statement in a first-degree murder case asking the jury to convict my client of second-degree murder without hav[ing] closely consulted w ith my client, discussed the minutia associated with

that decision and obtained the full consen t of my client in . . . advancing that

defense.

Next, petitioner testified and admitted to k illing the victim by stabbing her 235 times. He further agreed that he would have been “thrilled ” with a verdict of life, with mercy, or seconddegree murder. Petitioner testified that he did not agree with the strategy to ask for a conviction of second-degree murder, however. And while he was willing to take responsibility for the victim’s murder, petitioner indicated the he “d id not premediate” the act. Ultimately, by order entered on December 29, 2016, the circuit court denied petitioner habeas relief. It is from this order that petiti oner appeals.

Our review of the circuit court’s order denyi ng petitioner’s petition for a writ of habeas corpus is governed by the following standard:3 “In reviewing challenges to the findi ngs and conclusions of the circuit court in a habeas corpus action, we appl y a three-prong standard of review. We

review the final order and the ultimate disposition under an abuse of discretion standard; the underlyi ng factual findings under a cl early erroneous standard; and questions of law are subject to a de novo review.” Syllabus point 1, Mathena v.
Haines, 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 asserts th ree assignments of error, all of which involve allegations

of ineffective assistance of trial counsel. First, petitioner ar gues that counsel failed to object to the following three instances of prosecutorial misconduct: (1) the prosecuting attorney’s misstatement of the law concerning premeditation, wherein the prosecutor to ld the jury “don’t forget the instructions. How long does it take to premeditate and deliberate? An instant”; (2) the prosecutor’s personal opinion rega rding the credibility of an expert witness; and (3) the prosecutor’s inappropriate menti on of mercy, including an instan ce wherein the prosecutor said that “[petitioner’s] mercy is that he gets to live. People worked to save his li fe at that hospital. He gets to live, and [the victim] is dead.” Second, petitioner argues that counsel was ineffective for failing to object to what he alleges was an impr oper jury instruction on the inference of malice and the intent to kill. Finally, pe titioner alleges that counsel was ineffective for failing to obtain his consent to pursue a defense strategy of admitting culpability but challenging the requisite intent to support a first-degree murder convicti on. However, our review of the record supports

the circuit court’s decision to de ny petitioner’s petition for writ of habeas corpus as to each of petitioner’s assignments of error. Petitioner’s arguments presente d herein, with the exception of

his assertion that the circuit court failed to subs tantively address his thir d assignment of error, were thoroughly addressed by the circuit court in its order denying petitioner habeas relief.

As to petitioner’s third assignment of error asserting that his counsel was ineffective for pursuing a trial strategy to which he did not consen t, we find no error. This Court has held that

[i]n the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington , 466 U.S. 668 (1984): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a re asonable probability that, but for counsel’s unprofessional erro rs, the result of the proceedings would

have been different.

Syl. Pt. 5, State v. Miller , 194 W.Va. 3, 459 S.E.2d 114 (1995). Further,

[i]n reviewing counsel’s performan ce, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified

acts or omissions were outside the br oad range of professionally competent

assistance while at the same time refrai ning from engaging in hindsight or secondguessing of trial counsel’s strategic d ecisions. Thus, a reviewing court asks whether a reasonable lawyer would ha ve acted, under the circumstances, as

defense counsel acted in the case at issue.4 Id . at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6. Finally, “[w]here a counsel’s pe rformance, attacked as ineffective, arises from occurrences involvi ng strategy, tactics and ar guable courses of action, his conduct will be deemed effectively assistive of his client’s interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.” Syl. Pt. 21, State v.

Thomas , 157 W.Va. 640, 203 S.E.2d 445 (1974).

Here, we find that petitioner is entitled to no relief in regard to his third assignment of error, because he cannot show that no reasonabl y qualified defense attorney would have pursued the strategy that trial counsel did herein. Furt her, petitioner’s argument in support of this assignment of error lacks any basis in the reco rd. Aside from his unsupported claims that he never agreed to the strategy to admit culpability and seek a second-degree murder conviction, the evidence obtained at the omnibus hearing overwhelmingly establishes that petitioner’s trial counsel advanced this strategy with petitioner’s consent and support.

Specifically, Mr. McCoid testified that petiti oner and trial counsel spoke about the trial strategy at length, even going so fa r as to author a letter together in advance of trial seeking a plea agreement to second-degree murder on the basi s that petitioner admitted to killing the victim

but without the intent ne cessary to be guilty of first-degree murder. While the record shows that counsel instructed petitioner to author this lett er in the hope that it could be used to mitigate against a sentence of life, without mercy, in the event of a first-degree murder conviction, the

fact remains that it is indicative of petitioner’s agreement to pursue an overall strategy to obtain a

conviction on a lesser-included offense or otherwise lessen the subsequent term of incarceration imposed. Further, counsel testified at length about the discussions he had with petitioner concerning the trial strategy, in addition to pe titioner’s understanding of that strategy, its attendant risks and benefits, and his ultimate consent to the strategy. As such, this issue was one of credibility for the circuit court to make. See State v. Guthrie , 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An appella te court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”). Given that the circuit court denied petitioner re lief on this ground, it is clear that it did not find his testimony that he did not agree to this trial strategy to be credible. This is especially true in light of petitioner’s testimony at the omnibus hearing that he woul d have been “thrilled” with a conviction of either second-degree murder or a se ntence of life, with mercy. Given that petitioner specifically acknowledged his desire to be sentenced to something less that life, without mercy, it is clear that he supported trial c ounsel’s strategy to obtain such a result. Accordingly, we find no

error.

The circuit court’s order includes well-reas oned findings and conclusions as to the assignments of error now raised on appeal. Becaus e we find no clear error or abuse of discretion

in the circuit court’s order or record before us, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised on appeal and direct the Clerk to attach a copy of the circuit court’s December 29, 2016, “Order” to

this memorandum decision.

For the foregoing reasons, we affirm.5 Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment