836 S.E.2d 56
W. Va.2019Background
- Lewis forced entry into his ex-girlfriend’s apartment, carried her to an unoccupied apartment, and forcibly had vaginal intercourse; he was arrested after she escaped and the police were called.
- He was indicted for kidnapping, but at trial he requested (and the jury was instructed on) abduction with intent to defile as a lesser included offense; jury convicted him of burglary, second-degree sexual assault, and abduction with intent to defile.
- A recidivist finding enhanced his sexual-assault sentence; sentences were largely consecutive.
- Lewis’s first habeas succeeded in part because trial counsel failed to file a direct appeal; he was resentenced and then appealed directly to this Court (State v. Lewis), which adjudicated several claims on the merits.
- Lewis filed a second state habeas claiming (inter alia) conviction for an unindicted offense (constructive amendment), ineffective assistance for inviting the instruction, and disproportionality; the circuit court summarily dismissed the petition as waived or previously adjudicated.
- This appeal challenges that dismissal, focusing principally on whether he can collaterally attack a conviction for an offense that was not in the indictment when the defendant requested the instruction and benefitted from it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conviction of unindicted offense / constructive amendment | Lewis: conviction for abduction with intent to defile is a conviction for an offense not charged in the indictment, violating due process. | Respondent: Lewis invited the instructional error by requesting the lesser-offense instruction and thus had notice and was not prejudiced. | Court: Held invited error/waiver applies; defendant who requests and benefits from the instruction cannot later complain—conviction affirmed. |
| Ineffective assistance of counsel (for failing to raise unindicted-offense error) | Lewis: trial and direct-appeal counsel ineffective for not preserving/challenging the unindicted-offense issue. | Respondent: claim waived or previously adjudicated; invited error doctrine bars relief. | Court: Claims waived or previously adjudicated; invited-error ruling defeats the ineffective-assistance claim as to the instruction. |
| Sentence disproportionality | Lewis: consecutive sentences are disproportionate (cites State v. Davis). | Respondent: issue was not preserved in habeas or is previously adjudicated. | Court: Claim waived/not properly before habeas court; not reviewed on merits here. |
| Other trial errors raised in habeas (e.g., jury instruction on other lesser offenses, burglary challenge) | Lewis: various due process and instructional errors entitling him to relief. | Respondent: many claims were raised and resolved on direct appeal or are procedurally defaulted under W. Va. Code § 53-4A-1. | Court: Most claims were either previously and finally adjudicated or waived; habeas dismissal affirmed. |
Key Cases Cited
- Mathena v. Haines, 219 W. Va. 417 (standard of review for habeas corpus appeals)
- Ford v. Coiner, 156 W. Va. 362 (rebuttable presumption of waiver for claims not raised on direct appeal)
- State v. Fortner, 182 W. Va. 345 (abduction with intent to defile and kidnapping are separate offenses)
- Lease v. Brown, 196 W. Va. 485 (a defendant who submits an instruction waives or invites error)
- State v. Tidwell, 215 W. Va. 280 (invited instructional error bars later challenge)
- State v. Boyd, 209 W. Va. 90 (requesting instruction can waive statute-of-limitations defense for a lesser-included misdemeanor)
- State v. Corra, 223 W. Va. 573 (discusses constructive amendment/variance between indictment and proof)
- Currier v. Virginia, 138 S. Ct. 2144 (U.S. Supreme Court: a defendant’s consent/strategy can foreclose certain double-jeopardy or related complaints)
- State v. Lewis, 235 W. Va. 694 (this Court’s prior opinion adjudicating many of Lewis’s direct-appeal issues)