Roy F. Hillberry, II v. Donald Ames, Superintendent, Mt. Olive Correctional Complex ( 2022 )

FILED
September 19, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Roy F. Hillberry II,
Petitioner Below, Petitioner
vs.) No. 21-0708 (Marion County 20-C-52)
Donald Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Roy F. Hillberry II, by counsel John C. Rogers, appeals the Circuit Court of
Marion County’s August 4, 2021, order denying his petition for a writ of habeas corpus.
Respondent Donald Ames, Superintendent, by counsel Patrick Morrisey and Mary Beth Niday,
filed a response.
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 circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
Petitioner was convicted of the first-degree robbery of a gambling parlor in Fairmont, West
Virginia. State v. Hillberry, 233 W. Va. 27, 30-31, 754 S.E.2d 603, 606-07 (2014). The State’s
evidence at trial included videotapes from the gambling parlor capturing the robbery; a t-shirt
obtained from petitioner’s former roommate that matched the shirt worn by the robber on the
video; the former roommate’s identification of petitioner in the video, which identification was
made by the shirt and shoes worn by the perpetrator as well as the scar noticeable on the
perpetrator’s lip; petitioner’s coworker’s testimony that petitioner told him about the robbery and
that he had been “caught on camera”; and the coworker’s testimony that petitioner said he was
growing his hair out so that he would look different from the individual caught on video. Id.Ultimately, after a recidivist proceeding, petitioner was sentenced to life imprisonment, and his
conviction and sentence were affirmed by this Court following a direct appeal. Id. at 31, 36, 754
S.E.2d at 607, 612.
Petitioner filed a petition for a writ of habeas corpus in April of 2020. In his petition, he
asserted that the State introduced at trial cell-site location information (“CSLI”) placing petitioner
1
near the scene of the gambling parlor at the time that it was robbed and that the CSLI was
introduced through one of the investigating officers. Petitioner argued that the State obtained the
CSLI in violation of his rights under the Fourth Amendment and that it improperly introduced the
CSLI through a lay witness. He also claimed to have received ineffective assistance of counsel.
Following an omnibus evidentiary hearing at which petitioner and his trial counsel testified, the
habeas court denied petitioner habeas relief by order entered on August 4, 2021. This appeal
followed, and our review is guided by 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 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).
In petitioner’s first assignment of error, he maintains that the CSLI was unconstitutionally
obtained because it was obtained by a subpoena before it was properly obtained by a search
warrant. See Carpenter v. United States, 138 S. Ct. 2206 (2018) (holding that obtaining CSLI from
a wireless carrier constitutes a search). He also argues that the number of records obtained, “several
days’” worth, exceeds that which is constitutionally permissible and that the CSLI data should
have been presented through an expert, not lay, witness. See Syl. Pt. 2, State v. Johnson, 238 W.
Va. 580, 797 S.E.2d 557 (2017) (“A witness must be qualified as an expert under Rule 702 of the
West Virginia Rules of Evidence in order to present evidence of cell phone historical cell site
data.”).
We find no error in the habeas court’s denial of relief on these grounds. First, just as the
habeas court concluded, our review of the trial transcript reveals that the investigating officer
testified that he obtained the CSLI after obtaining a search warrant. Petitioner offers no support
for his assertion that the CSLI was obtained first with a subpoena. Likewise, petitioner fails to
support his claim that the amount of CSLI was unconstitutionally excessive. The habeas court
distinguished the number of records at issue here with the number at issue in Carpenter (129 days’
worth, see 138 S. Ct. at 2212) and found that the “cases are not comparable.” Petitioner does not
challenge this finding or offer a legal basis upon which this Court could conclude that the amount
of CSLI was excessive. So, petitioner has failed to carry his burden of demonstrating error in the
proceedings below. See Meadows v. Mutter, 243 W. Va. 211, 218, 842 S.E.2d 764, 771 (2020)
(citation omitted) (“[O]n an appeal to this Court the appellant bears the burden of showing that
there was error in the proceedings below resulting in the judgment of which he complains, all
presumptions being in favor of the correctness of the proceedings and judgment in and of the trial
court.”).
We further find no error in the habeas court’s conclusion that the officer’s testimony, in
lieu of expert testimony, on the CSLI amounted to harmless error. As recounted above, the
evidence aside from the CSLI was “overwhelming” and included petitioner’s roommate’s
identification of him as the perpetrator seen on the surveillance video and, in effect, his confession
to the robbery to his coworker. Hillberry, 233 W. Va. at 36, 754 S.E.2d at 612 (“[E]vidence of the
defendant’s identity as the person who robbed the [gambling parlor] was overwhelming . . . .”).
2
The CSLI was largely cumulative of the testimony from petitioner’s coworker placing him at the
scene, his roommate identifying him from the video placing him at the scene, and the investigating
officers who also identified petitioner on the video. Just as was the case in Johnson, the jury would
have found petitioner guilty beyond a reasonable doubt even without any improperly admitted
CSLI, and because it was cumulative, the evidence had no prejudicial impact on the jury. 238 W.
Va. at 594, 797 S.E.2d at 571.
In petitioner’s second and final assignment of error, he alleges that he received ineffective
assistance of counsel for seven reasons: counsel failed to (1) interview certain witnesses, (2) obtain
a ruling on a motion to suppress, (3) “suppress the unconstitutionally suggestive photographic
lineup,” (4) call Paulette Boggs to testify at trial, (5) adequately cross-examine his former
roommate at trial, (6) offer evidence for several assertions made during petitioner’s opening
statement, and (7) allow petitioner to testify in his own defense.
It is well established that, to succeed on such claims, a petitioner must demonstrate both
that “(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. 1, in part, State ex rel. Daniel v. Legursky, 195
W. Va. 314, 465 S.E.2d 416 (1995) (citation omitted). As both prongs must be satisfied, this Court
“may dispose of such a claim based solely on a petitioner’s failure to meet either prong of the test.”
Id. at 317, 465 S.E.2d at 419, Syl. Pt. 5, in part.
In line with Syllabus Point 5 of Legursky, we find no error in the habeas court’s denial of
relief on this ground because petitioner has done nothing more than conclude that the result of his
trial would have been different had the allegedly unprofessional errors not occurred. He fails to
explain how the purportedly uncontacted witnesses would have helped his case; address the ample
evidence in support of his conviction beyond that which was the subject of the motion to suppress;
acknowledge that this Court previously determined that the photo array was not impermissibly
suggestive, Hillberry, 233 W. Va. at 36, 754 S.E.2d at 612; identify what Ms. Boggs would have
testified to or how that expected testimony would have altered the result of his trial; 1 explain how
a more rigorous cross-examination of his roommate would have diminished other probative
evidence of his guilt; identify the evidence that should have been admitted (or even identify
statements made by counsel for which evidence lacked); and explain how his testimony, had he
testified, would have resulted in an acquittal. Again, we found previously that the “evidence of
[petitioner’s] identity as the person who robbed the [gambling parlor] was overwhelming.” Id. This
evidence neither included the CSLI nor would have been diminished had counsel performed in the
manner suggested by petitioner. Consequently, at a minimum, he failed to establish the prejudice
prong necessary to succeed on his ineffective assistance claim.
For the foregoing reasons, we affirm.
1
Petitioner mentions only that Ms. Boggs told officers that she had “seen an individual
matching the [robbery] suspect’s description running up Hopewell Road shortly after the robbery.”
Although petitioner fails to address this, our review of the record reveals that this information was
investigated, the individual seen running was identified and questioned, and he was eliminated as
a suspect.
3
Affirmed.
ISSUED: September 19, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
4