FILED
STATE OF WEST VIRGINIA June 23, 2021
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Richard “Ricky” Booth, Jr.,
Petitioner Below, Petitioner
vs.) No. 19-1191 (Ohio County 18-C-184)
Karen Pszczolkowski, Superintendent,
Northern Correctional Facility,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Richard “Ricky” Booth, Jr., by counsel Jeremy B. Cooper, appeals the Circuit
Court of Ohio County’s June 7, 2019, order denying his third petition for a writ of habeas corpus.
Respondent Karen Pszczolkowski, Superintendent, Northern Correctional Center, by counsel
Holly M. Flanigan, filed a response to which petitioner submitted a reply.
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 is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner was arrested on March 21, 2007, following an investigation into an attempted
purse-snatching in Wheeling, West Virginia. On May 14, 2007, he was indicted by the grand jury
on two counts of the felony offense of robbery in the first degree, one count of the felony offense
of assault during the commission of or attempt to commit a felony, and one count of the felony
offense of conspiracy. On June 8, 2007, petitioner pled guilty to first-degree robbery. As part of
his plea agreement, the State agreed not to recommend any sentence higher than that recommended
by the probation officer and to not file a recidivist information. In addition, petitioner agreed to
give a truthful statement regarding the crime. The probation officer ultimately recommended an
eighty-year sentence.
During his plea hearing, petitioner was advised that he should not enter a guilty plea unless
he believed he was guilty of the crime with which he was charged. He was also advised of all of
his rights and the rights he would be giving up if he entered a guilty plea. In response, he
acknowledged his understanding of the same and that his guilty plea was the result of negotiations
his attorney conducted with the State. During petitioner’s plea colloquy, he also acknowledged
1
that he was satisfied with the representation of his attorney and did not voice any concerns or
objections regarding the same. By order entered on December 3, 2007, petitioner was sentenced
to eighty years of incarceration. Petitioner filed a direct appeal alleging a disproportionate
sentence. This Court heard argument on that issue and affirmed petitioner’s sentence. State v.
Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009). Petitioner sought certiorari from the United States
Supreme Court, which was denied. Booth v. West Virginia, 130 S.Ct. 2365 (2010).
Petitioner filed his first petition for a writ of habeas corpus on or about August 11, 2010,
arguing that his sentence was disproportionate, his guilty plea was involuntary, and he received
ineffective assistance of counsel because counsel recommended he enter a guilty plea. The circuit
court denied that petition, and petitioner appealed that denial to this Court. On appeal, this Court
affirmed in part, finding no error in the circuit court’s determination that petitioner’s claim of
disproportionality was without merit, but remanded for findings of fact and conclusions of law on
petitioner’s other grounds for habeas corpus relief. Booth v. Ballard, No. 11-0085, 2012 WL
3002530 (W. Va. June 8, 2012) (memorandum decision). On remand, the circuit court again denied
petitioner’s first petition for a writ of habeas corpus.
Petitioner filed his second petition for a writ of habeas corpus on or about February 14,
2018, asserting only ineffective assistance of counsel. That petition was also denied by the circuit
court. Petitioner did not appeal that decision to this Court. Petitioner, acting as a self-represented
litigant, then filed his third petition for writ of habeas corpus on or about August 17, 2018.
Thereafter, his newly appointed habeas counsel filed an amended petition in October of 2019,
which is the petition at issue in the instant appeal.
In his amended third petition for a writ of habeas corpus, petitioner set forth eight
assignments of error, including unconstitutionally disproportionate sentence, ineffective assistance
of counsel, involuntary guilty plea, insufficient evidence, question of actual guilt upon acceptable
guilty plea, mental incompetency at the time of the crime, mental incompetency at the time of trial,
and incapacity to stand trial due to drug use. According to the circuit court, petitioner conceded
that his claim of unconstitutionally disproportionate sentence had been fully litigated and was res
judicata; however, he, alternatively, argued that his co-defendant was sentenced disproportionately
to him and that issue had not been litigated. He pointed out that the co-defendant was sentenced to
fifty years for burglary, with an additional five years due to charges from a separate occurrence.
In addressing the difference in sentences imposed, the circuit court found that petitioner was an
actor in the underlying crimes, whereas the co-defendant was simply a conspirator, rendering it
more than appropriate that petitioner received a severer sentence.
Petitioner’s second ground below was ineffective assistance of counsel, and the circuit
court characterized grounds three through eight as “fall[ing] under the purview of ‘ineffective
assistance of counsel.’” The circuit court, therefore, addressed grounds two through eight as
ineffective assistance of counsel. According to the circuit court, the primary basis behind the
ineffective assistance of counsel claims stem from petitioner’s belief that the plea agreement was
not in his best interest. As the court explained, petitioner believes that his counsel did not do
enough to get a better deal for him, specifically asserting that his previous counsel should have set
forth a “diminished capacity” defense due to petitioner’s allegation that he took Xanax prior to
committing the criminal acts. In cursory fashion, the circuit court quotes large portions of West
2
Virginia Code § 53-4A-1, including that the contentions raised in the petition will be considered
waived or previously adjudicated if:
petitioner could have advanced, but intelligently and knowingly failed to advance,
such contention or contentions and grounds before trial, at trial, or on direct appeal
(whether or not said petitioner actually took an appeal), or in a proceeding or
proceedings on a prior petition or petitions filed under the provisions of this article,
or in any other proceeding or proceedings instituted by the petitioner to secure relief
from his conviction or sentence, unless such contention or contentions and grounds
are such that, under the Constitution of the United States or the Constitution of this
State, they cannot be waived under the circumstances giving rise to the alleged
waiver.
Id. § 53-4A-1(c), in part. The court found that if such contentions are considered waived, there is
a rebuttable presumption that petitioner intelligently and knowingly failed to advance such
contentions and grounds. See W. Va. Code § 53-4A-1.
In its June 7, 2019, order, the circuit court denied petitioner’s third petition for a writ of
habeas corpus for the following reasons:
[p]etitioner’s assignments of error raised in this Third Writ have already been
litigated; and thus, are res judicata and any grounds yet to be asserted and litigated,
are deemed waived under West Virginia law. Furthermore, the only possible
surviving assignments of error are ineffective assistance of counsel and the newly
asserted subsets of ineffective assistance of counsel, which are, even if considered
on the merits, without merit. In this Third Writ, notwithstanding res judicata and
waiver nullifying the legal validity of [p]etitioner’s claims, out of an abundance of
caution, the [c]ourt provided [p]etitioner with counsel and considered the merits of
[p]etitioner’s third claim for ineffective assistance of counsel. Nevertheless, after
reviewing the claim, the [c]ourt has determined to FIND that [p]etitioner’s claim is
without merit.
It went on to find that it would not reverse petitioner’s conviction and/or reduce his sentence on
his alleged voluntary intoxication on the date of the crime.
Under that line of reasoning, a great number of convicted persons stand to be
released and/or have their sentence reduced via a habeas corpus petition as many
persons convicted of crimes by plea or verdict are intoxicated while committing
crimes. Furthermore, the factual circumstances underlying th[is Court’s] precedent
set forth by [p]etitioner involves the charge of first degree murder, not robbery. . .
. In the present case, the only evidence of [p]etitioner’s intoxication is that he and
his cohorts alleged they had taken Xanax. Bald assertions made by [d]efendant(s)
are insufficient to set forth a viable ‘diminished capacity’ defense.
The circuit court went on to find all of petitioner’s ineffective assistance of counsel claims were
without merit. It, therefore, denied petitioner’s third petition for writ of habeas corpus. Petitioner
3
appeals from that order.
This Court reviews a circuit court order denying a habeas petition under 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).
Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Further, “[a] prior omnibus
habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which
with reasonable diligence could have been known,” but “an applicant may still petition the court
on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus
hearing[.]” Syl. Pt. 4, in part, Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
Additionally, “[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.” Syl. Pt. 1, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004) (quoting Syl. Pt.
2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973)).
On appeal, petitioner sets forth four assignments of error. First, he argues that the circuit
court erred by denying his motion for funding to retain an expert to testify regarding petitioner’s
alleged diminished capacity. He asserts that a diminished capacity defense must be supported by
an expert witness. Syl. Pt. 3, State v. Joseph, 214 W. Va. 525, 590 S.E.2d 718 (2003). Petitioner
argues that without an expert witness to opine whether a meritorious diminished capacity claim
would have existed at the time of trial, any such claim would be inherently speculative. He further
contends that claims regarding competency to stand trial or criminal responsibility would be
impossible to advance in a habeas proceeding without the help of an expert.
As we have stated, “it is important to note that, unlike the insanity defense, evidence of
diminished capacity does not establish a complete defense.” State v. Joseph, 214 W.Va. 525, 530,
590 S.E.2d 718, 723 (2003). In Joseph, we found that
[t]he diminished capacity defense is available in West Virginia to permit a
defendant to introduce expert testimony regarding a mental disease or defect that
rendered the defendant incapable, at the time the crime was committed, of forming
a mental state that is an element of the crime charged. This defense is asserted
ordinarily when the offense charged is a crime for which there is a lesser included
offense. This is so because the successful use of this defense renders the defendant
not guilty of the particular crime charged, but does not preclude a conviction for a
lesser included offense.
214 W. Va. at 526-27, 590 S.E.2d 719-20, Syl. Pt. 3. In addition, as set forth by this Court in
4
v. Simmons, 172 W. Va. 590, 600, 309 S.E.2d 89, 99 (1983), “[t]he existence of a mental illness is
not alone sufficient to trigger a diminished capacity defense. It must be shown by psychiatric
testimony that some type of mental illness rendered the defendant incapable of forming the specific
intent elements.” Petitioner’s motion for expert funding filed with the habeas court is essentially a
single substantive paragraph, requesting “funding to obtain the services of a forensic psychologist
to opine concerning [p]etitioner’s mental state at the time of the events underlying the indictment,
when the record supports that petitioner was under the influence of a massive dose of
benzodiazepines.” Therein, he also asserted that the requested experts 1 are relevant and necessary
“for the proof of [p]etitioner’s habeas claims.” Aside from citing West Virginia Trial Court Rule
35, petitioner did not cite any law in support of his motion.2 The circuit court did not rule directly
on the motion but impliedly denied it by summarily denying the petition for habeas relief.
As we previously found, “[v]oluntary intoxication and self-defense are affirmative
defenses. The time for the accused to present evidence of an affirmative defense is at trial,
however, when the accused enters a plea of guilt, he waives his right to present such evidence and
make such claims and requests.” Tamburo v. Pszczolkoski, No. 14-0287, 2015 WL 3751825, at *8
(W. Va. June 15, 2015) (memorandum decision). Additionally, “[t]his Court has recognized that
voluntary intoxication does not ordinarily excuse a crime. Voluntary intoxication may, however,
reduce the degree of the crime or negate a specific intent.” State v. Skidmore, 228 W. Va. 166, 171,
718 S.E.2d 516, 521 (2011) (citation omitted). During his plea hearing, petitioner denied receiving
any treatment for psychological or mental conditions, in addition to affirming that he had had the
opportunity to discuss possible defenses with his attorney. Like Mr. Tamburo, petitioner “had the
opportunity to assert these defenses but weighted the risks of trial and chose to enter into a plea
agreement thereby waiving his right to a jury trial and these defenses.” Tamburo, 2015 WL
3751825, at *8. For these reasons, we find that the circuit court did not err in impliedly denying
petitioner’s motion to fund an expert related to his alleged diminished capacity, filed not at the
time of the entry of petitioner’s plea of guilty but upon the filing of his third petition for a writ of
habeas corpus.
Petitioner next argues that the circuit court erred by denying his ineffective assistance of
counsel claims without conducting an omnibus hearing. In support of that contention, he asserts
that the ineffective assistance deprived him of due process. He argues that his counsel was
ineffective because he did not advise petitioner concerning the “serious defect in the State’s case”
against him or retain an expert to assess the victim’s medical records to determine whether her
injuries actually resulted from the attempted purse-snatching. Without citing to the record,
petitioner argues that despite his counsel’s knowledge of petitioner’s extensive history of drug use,
counsel failed to litigate the issue of petitioner’s mental competency to stand trial, his criminal
responsibility at the time of the alleged robbery, and whether petitioner suffered from diminished
capacity to an extent that would prevent him from forming the intent that is an essential element
1
In his motion, petitioner also requested funding to hire an expert to testify as to the
victim’s injuries.
2
Rule 35.01(b) of the West Virginia Trial Court Rules provides that a motion for public
funding for expert assistance “shall state the reasons why the assistance is necessary for an
adequate presentation of the case or defense. It may be supported by affidavit.”
5
of the crime of robbery (the intent to permanently deprive). 3 Again failing to cite to the record,
petitioner asserts that there were “serious implications to both the State’s proof and relevant
sentencing considerations,” stemming from whether the victim’s injury was caused by petitioner
trying to take the victim’s purse. In direct contradiction to his responses to the circuit court during
his plea hearing, petitioner now asserts that he was never advised as to any of the potential defenses
in support of his ineffective assistance of counsel claim.
In West Virginia, claims of ineffective assistance of counsel are governed by the two-prong
standard set forth in Strickland v. Washington, 466 U.S. 668, 669 (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, in part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114
(1995).
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.
Id. at Syl. Pt. 6.
“When assessing whether counsel’s performance was deficient, we ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance[.]’” Id. at 15, 459 S.E.2d at 126 (citation omitted). Further, “[t]o demonstrate prejudice,
a defendant must prove there is a ‘reasonable probability’ that, absent the errors, the jury would
have reached a different result.” Id. As a result, petitioner “bears a difficult burden because
constitutionally accepted performance is not defined narrowly and encompasses a ‘wide
range.’” Id. at 16, 459 S.E.2d at 127. Indeed,
[t]he test of ineffectiveness has little or nothing to do with what the best lawyers
would have done. Nor is the test even what most good lawyers would have
done. We only ask whether a reasonable lawyer would have acted, under the
3
Throughout his brief, petitioner makes factual assertions without the required citations to
the record. Therefore, we remind petitioner that Rule 10(c)(7) of the West Virginia Rules of
Appellate Procedure requires, in relevant part, as follows:
The brief must contain an argument exhibiting clearly the points of fact and law
presented . . . . The argument must contain appropriate and specific citations to the
record on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal. The Court may disregard
errors that are not adequately supported by specific references to the record on
appeal.
6
circumstances, as defense counsel acted in the case at issue. We are not interested
in grading lawyers’ performances; we are interested in whether the adversarial
process at the time, in fact, worked adequately.
Id. Consequently, “the cases in which a defendant may prevail on the ground of ineffective
assistance of counsel are few and far between one another.” Id. Further, “[i]n deciding ineffective
assistance of counsel claims, a court need not address both prongs of the conjunctive standard
of Strickland v. Washington . . . and State v. Miller, . . . but may dispose of such a claim based
solely on a petitioner’s failure to meet either prong of the test.” Syl. Pt. 5, in part, State ex rel.
Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995). In addition, where the criminal
conviction is based upon a guilty plea, the prejudice requirement “demands that a habeas petitioner
show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Syl. Pt. 6, State ex rel. Vernatter v. Warden, 207
W. Va. 11, 528 S.E.2d 207 (1999). “Moreover, the petitioner must also demonstrate that he was
prejudiced in that he was unaware of the consequences of his plea, and, if properly advised, would
not have pleaded guilty.” Id. at Syl. Pt. 10, in part. Finally, as set forth above, “[a] prior omnibus
habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which
with reasonable diligence could have been known[.]” Losh, 166 W. Va. at 762, 277 S.E.2d at 608,
Syl. Pt. 4, in part.
This assignment of error also implicates the circuit court’s decision to enter its order
without conducting an omnibus hearing. It is well established that criminal defendants
are not entitled to counsel or an omnibus hearing during habeas proceedings. See State ex rel.
Farmer v. Trent, 206 W. Va. 231, 234, 523 S.E.2d 547, 550 (1999) (“It is indisputable that it is
within a trial court’s sound discretion to deny a habeas corpus petition without appointing counsel
or conducting an omnibus hearing.”). Moreover,
[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.
Perdue, 156 W. Va. at 467, 194 S.E.2d at 658, Syl. Pt. 1 (emphasis added). In addition, it is
important to note that this is petitioner’s third petition for a writ of habeas corpus related to the
same underlying charges.
Here, not only has petitioner failed to present any argument as to why he did not raise this
allegation in his first or second habeas petition, he has failed to satisfy the Strickland/Miller test.
Petitioner has not pointed to anything in his petition below, exhibits, affidavits, or other
documentary evidence that shows that he was entitled to an omnibus hearing. Instead, he
repeatedly refers to purportedly overwhelming evidence of his drug use 4 without citing to the
record and presents arguments that are contrary to his representations to the circuit court during
his plea hearing. For these reasons, we find that petitioner has failed to show that the circuit court
4
In addition, this Court addressed voluntary intoxication above.
7
erred by finding that counsel was not ineffective without first holding an omnibus hearing.
Finally, petitioner argues that his sentence is unconstitutionally disproportionate in light of
his co-defendant’s sentence reduction. In his brief,
[p]etitoner concedes that the issue of disproportionality is res judicata, having been
finally ruled upon by this Court in his direct appeal, which raised the sole issue of
disproportionality of sentence. . . . However, [he] asserts that the matter of
disproportionate sentences among his co-defendants remains at issue due to the
modification of co-defendant Jessica Wood’s sentence.
He points out that her sentence was modified “to spare her a potential five years of actual
incarceration, by being run concurrently with a sentence for another offense that was originally
run consecutively.” In his argument, petitioner fails to address his role or the role of that co-
defendant in the commission of the crime. He also fails to state whether Ms. Wood went to trial or
set forth the charges of which she was convicted.
Petitioner acknowledges that, pursuant to Syllabus Point 2 of State v. Buck, 173 W. Va.
243, 314 S.E.2d 406 (1984),
[d]isparate sentences for codefendants are not per se unconstitutional.
Courts consider many factors such as each codefendant’s respective involvement
in the criminal transaction (including who was the prime mover), prior records,
rehabilitative potential (including post-arrest conduct, age and maturity), and lack
of remorse. If codefendants are similarly situated, some courts will reverse on
disparity of sentence alone.
Without addressing the facts, petitioner asserts that “the factors support the modification of
sentence [because . . . p]etitioner exhibited greater rehabilitative potential due to his young age
and less severe criminal record, and was not the prime mover behind the incident.” Continuing to
fail to cite to the record, he contends that it is extremely unlikely that the events leading to
petitioner’s conviction would have occurred “without the influence of Ms. Wood.”
As we have previously stated,
“‘[t]he Supreme Court of Appeals reviews sentencing orders . . . under a
deferential abuse of discretion standard, unless the order violates statutory or
constitutional commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W. Va. 271,
496 S.E.2d 221 (1997).” Syllabus Point 2, State v. Georgius, 225 W. Va. 716, 696
S.E.2d 18 (2010).
Syl. Pt. 1, State v. Varlas, 243 W. Va. 447, 844 S.E.2d 688 (2020). Here, petitioner fails to set
forth sufficient facts or point this Court to the information necessary to determine the respective
involvement in the crime of petitioner and Ms. Wood or if they were similarly situated. However,
this Court previously determined the following:
8
Mr. Booth was the prime mover in that he was the one who actively pursued the
plan to prey on the elderly and steal money. . . . Moreover, while both he and the
juvenile male followed the victim, Mrs. Schafer on the street, Mr. Booth was the
one who pulled on her purse causing her to fall and resulting in her significant
injuries. All of these actions took place while Mr. Booth was free on bond for the
alleged commission of another felony. His post-arrest conduct for his previous
charges clearly evidences a lack of a desire to change or receive help. Accordingly,
we do not find that the sentence is disproportionate to the sentences received by his
codefendants. There was no abuse of discretion by the circuit court in the
imposition of Mr. Booth’s sentence; therefore, the sentence will not be disturbed
by this Court.
Booth, 224 W. Va. at 315-16, 685 S.E.2d at 709-10 (footnote omitted). Therefore, we find that
petitioner failed to establish that his sentence is unconstitutionally disproportionate. Thus, the
circuit court did not err in denying petitioner’s petition for a writ of habeas corpus on this ground.
Affirmed.
ISSUED: June 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
9