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SER Bailey v. Legursky, Warden
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 1997 Term

___________

No. 23832 ___________

STATE OF WEST VIRGINIA EX REL. STEVIE WAYNE BAILEY, Plaintiff Below, Appellant

v.

CARL LEGURSKY, WARDEN OF THE WEST VIRGINIA STATE PENITENTIARY

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Defendant Below, Appellee

___________________________________________________

Appeal from the Circuit Court of Wyoming County Honorable W. Kendrick King, Judge Civil Action No. 91-C-191

AFFIRMED ___________________________________________________

Submitted: April 23, 1997 Filed: July 16, 1997

Lena S. Hill Pineville, West Virginia Attorney for the Appellant

Darrell V. McGraw, Jr. Attorney General Rory L. Perry Assistant Attorney General Charleston, West Virginia Attorneys for the Appellee

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This Opinion was delivered PER CURIAM. SYLLABUS BY THE COURT

1. "In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel'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, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). 2. "In 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 would have acted, under the circumstances, as defense counsel acted in the case at issue." Syl. pt. 6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). 3. "A habeas corpus petitioner is entitled to careful consideration of his grounds for relief, and the court before which the writ is made returnable has a duty to provide whatever facilities and procedures are necessary to afford the petitioner an adequate opportunity to demonstrate his entitlement to relief." Syl. pt. 5, Gibson v. Dale, 173 W. Va. 681, 319 S.E.2d 806 (1984). Per Curiam: This case is before this Court upon an appeal from the final order of the Circuit Court of Wyoming County, West Virginia, entered on January 12, 1996. As reflected in the order, the circuit court denied the appellant, Stevie Wayne Bailey, habeas corpus relief with regard to his 1985 conviction of the offense of murder of the first degree, without a recommendation of mercy. The appellant is incarcerated at the Mt. Olive Correctional Complex in Fayette County, West Virginia. The appellant's assertions below include the principal claim that his murder conviction resulted from ineffective assistance of counsel. This Court has before it the amended petition for appeal, all matters of record and the briefs and argument of counsel. Upon a careful review of the record, and particularly in view of the thorough and well-reasoned memorandum of opinion of the court below, this Court concludes that the matters raised by the appellant in this appeal are without merit. Accordingly, the final order of the circuit court is affirmed. I Prior to the institution of this habeas corpus proceeding, the appellant's murder conviction was affirmed by this Court, upon direct appeal, in State v. Bailey, 179 W. Va. 1, 365 S.E.2d 46 (1987). As stated in the opinion of this Court in Bailey, the evidence of the State admitted at trial indicated that the appellant shot and killed the victim, Dan Holcomb, as the result of an altercation between the two on February 13, 1985, at Holcomb's residence. The altercation arose because of a romantic relationship between the appellant and Holcomb's wife, Kathy Holcomb. Immediately following the shooting, the appellant walked to a nearby house and requested the occupants to call the police. Less than a week before trial, the appellant and Kathy Holcomb were married. Kathy Holcomb did not testify during the appellant's trial, but her prior statement to the police, i.e., that before the incident of February 13, 1985, the appellant threatened to kill Dan Holcomb, was admitted into evidence. In Bailey, this Court held that the admission of that statement was neither precluded by marital privilege (as between the appellant and Kathy Holcomb) nor by this State's rules governing hearsay. As the opinion in Bailey states, this Court

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determined that the record contained "sufficient indicia of trustworthiness to sustain the admission of the statement." 179 W. Va. at 5, 365 S.E.2d at 50. Following the opinion of this Court in Bailey, the appellant instituted this habeas corpus proceeding in the circuit court. W. Va. Code, 53-4A-1 [1967], et seq. An attorney separate from the appellant's counsel at trial was appointed to represent him, and a special judge was appointed by this Court to preside in the matter. On June 6, 1994, an evidentiary hearing was conducted. Syl. pt. 1, Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981). Following the hearing, as reflected in the final order, habeas corpus relief was denied. II The primary issue raised by the appellant in this appeal from the denial of habeas corpus relief concerns the effectiveness of his counsel with regard to the underlying murder trial. This Court has recognized that the Sixth Amendment to the Constitution of the United States and article III,

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