Leftwich v. Ames, Superintendent ( 2022 )

FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Thomas E. Leftwich,
Petitioner Below, Petitioner
vs.) No. 20-0143 (Raleigh County 10-C-22-B)
Donnie Ames, Superintendent, Mt. Olive
Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Thomas E. Leftwich, by counsel G. Todd Houck, appeals the order of the Circuit
Court of Raleigh County, entered on January 28, 2020, dismissing his petition for writ of habeas
corpus. Mr. Leftwich is incarcerated for a term of life, without mercy, for his 2008 conviction of
first-degree murder by use of a firearm. He also is sentenced to serve a consecutive term of
imprisonment for a term of one to five years for his conviction of conspiracy related to the same
murder, the slaying of undercover police officer Cpl. Charles “Chuck” Smith of the Beckley Police
Department. Mr. Leftwich was indicted with a co-defendant, convicted in a jury trial, and
sentenced as described above. His petition for appeal was denied by this Court in 2009. Respondent
State of West Virginia appears by counsel Patrick Morrisey and Mary Beth Niday.
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.
Mr. Leftwich filed a petition for a writ of habeas corpus in the Circuit Court of Raleigh
County in 2010, asserting numerous grounds for relief. The circuit court dismissed the petition by
a comprehensive order entered on January 28, 2020, that thoroughly addressed the grounds
asserted by Mr. Leftwich.
The matter before us is an appeal from the circuit court’s order of a dismissal of a petition
for habeas corpus. We, accordingly, review as follows:
“In reviewing challenges to the findings and conclusions of the circuit court
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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.” Syllabus point 1, Mathena v. Haines, 219
W. Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, Meadows v. Mutter, 243 W. Va. 211, 842 S.E.2d 764 (2020). Further, a habeas petitioner
bears the burden of establishing that he is entitled to the relief sought. See Markley v. Coleman,
215 W. Va. 729, 734, 601 S.E.2d 49, 54 (2004); Syl. Pts. 1 and 2, State ex rel. Scott v. Boles, 150
W. Va. 453, 147 S.E.2d 486 (1966).
On appeal, Mr. Leftwich asserts three assignments of error. He argues that the circuit court
erred, first, in concluding that he failed to prove that he did not have effective assistance of counsel;
second, in concluding that his constitutional right to assert self-defense was not violated; and, third,
in concluding that his constitutional rights were not violated by the State’s bolstering the credibility
of a particular witness. With respect to the issues implicated in these assignments of error, Mr.
Leftwich’s arguments to this Court are nearly identical to the arguments he made to the circuit
court in his underlying habeas action. It appears, in fact, that entire portions of Mr. Leftwich’s
amended habeas petition were pasted (albeit, reordered) into his appellate brief. In repackaging the
arguments that were adequately addressed by the habeas court, Mr. Leftwich failed to argue or
demonstrate that the habeas court’s analysis was flawed or that its conclusions were in error. Thus,
upon our review and consideration of the parties’ arguments, the record on appeal, and pertinent
legal authority, we find no error in the circuit court’s order denying Mr. Leftwich post-conviction
habeas corpus relief.
In light of our conclusion that the circuit court’s order and the record on appeal reflect no
clear error, we hereby adopt and incorporate the circuit court’s findings and conclusions as they
relate to petitioner's assignments of error raised herein and direct the Clerk to attach to this
memorandum decision a copy of the circuit court’s January 28, 2020, “Dismissal of Petition.”
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
DISQUALIFIED:
Chief Justice John A. Hutchison
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