James Wilkerson v. David Ballard, Warden, 16-0689

Background

In November 2008 petitioner James Wilkerson and a codefendant assaulted two 13‑year‑old victims at a playground; victims suffered significant injuries and property (wallet, phone) was taken.
Wilkerson was tried by jury in April 2011 and convicted of two counts of first‑degree robbery (attempt), one felony assault, and conspiracy; aggregated effective sentence initially 80 years. The West Virginia Supreme Court affirmed on direct appeal.
The codefendant entered an Alford plea to two counts of second‑degree robbery before verdict and received an effective sentence of 10–36 years.
Wilkerson filed a habeas petition asserting 11 grounds (including double jeopardy, excessiveness/disparate sentencing, ineffective assistance, erroneous jury instruction, prosecutorial misconduct, and insufficiency of evidence); the habeas court held a hearing and denied relief on June 15, 2016.
After the habeas denial, the trial court (via a late Rule 35 motion) reduced Wilkerson’s sentence so the two 40‑year robbery terms run concurrently, producing a 40‑year effective term, citing racial disparity between Wilkerson (Black) and codefendant (White).
Wilkerson appealed the habeas denial; the Supreme Court of Appeals affirmed, adopting the habeas court’s findings and rejecting Wilkerson’s claims as meritless or non‑constitutional errors not cognizable in habeas.

Issues

Issue	Wilkerson's Argument	State's Argument	Held
Double jeopardy / multiple robbery convictions	Multiple robbery convictions for the same incident violate double jeopardy (relying on Collins)	Each robbery targeted a different victim; separate offenses permissible	Convictions for attempted robbery of each victim upheld; Collins inapplicable because property belonged to distinct persons
Excessive / disparate sentencing & equal protection	Sentence excessive, disproportionate, and racially disparate compared to codefendant	Sentence within statutory limits; codefendant pled guilty to lesser offenses and waived jury; different convictions and procedural choices justify disparity	Habeas court denial affirmed on merits; trial court later reduced sentence via Rule 35 citing racial disparity but habeas denial stands as sentence was within statutory bounds
Jury instruction accuracy / IAC for failing to object	Instruction misstated law; counsel ineffective for not objecting	Instruction accurately stated law; no prejudice from any variation	Instruction found consistent with law; IAC claim denied (no reasonable probability of different outcome)
Prosecutorial remarks regarding codefendant	Remarks about codefendant’s plea and inability to be reprosecuted denied fair trial	Remarks are trial‑level arguments; petitioner failed to allege a constitutional violation in habeas	Habeas court properly declined relief because petitioner did not allege a constitutional deprivation cognizable in habeas
Sufficiency of the evidence	Evidence insufficient to support robbery convictions	Record contains eyewitnesses, victims’ injuries, and recovered property supporting convictions	Evidence sufficient; due process claim denied

Key Cases Cited

Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (W. Va. 2006) (standard of review in habeas appeals: abuse of discretion for ultimate disposition; clearly erroneous for facts; de novo for law)
State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (W. Va. 2009) (procedural standards for appellate review)
State v. Collins, 174 W.Va. 767, 329 S.E.2d 839 (W. Va. 1984) (addresses multiplicity where property belonged to a single entity)
State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (W. Va. 1982) (sentences within statutory limits are generally permissible)
State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (W. Va. 1983) (standards for cruel and unusual/excessive sentence review)
State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (W. Va. 1979) (habeas is not a substitute for ordinary trial error review absent constitutional violations)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (W. Va. 1995) (application of Strickland in West Virginia)
State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (W. Va. 2013) (petitioner’s direct‑appeal decision)