Roger Harper v. David Ballard, Warden, 16-0558

Background

In 1990 Harper was indicted for two counts of first-degree murder and one count of malicious wounding after a bar altercation; he was evaluated and found competent but one examiner provisionally noted intermittent explosive disorder (IED) pending exclusion of alcohol intoxication.
Defense-funded psychiatrist Dr. Ralph Smith evaluated Harper, diagnosed alcohol abuse, and, applying DSM criteria, concluded Harper did not have IED to a reasonable degree of medical certainty.
Trial counsel sought funding for a second mental-health expert; after a March 4, 1991 hearing at which Dr. Smith testified, the circuit court denied funding as unreasonable and unnecessary; Harper was convicted in October 1991 and sentenced to consecutive life terms without parole plus additional time.
Harper pursued postconviction habeas proceedings across many years; a 2007 amended petition by counsel Dennis Curry alleged denial of a meaningful defense due to the court’s refusal to fund a second expert; the circuit court denied relief in a January 28, 2011 order, later denying a Rule 60(b) motion (June 27, 2011).
Harper filed a 2016 habeas petition alleging (1) Curry coerced him into waiving earlier habeas claims (from a 2003 petition) and (2) Curry was ineffective for appealing the Rule 60(b) denial rather than the January 28, 2011 denial; the circuit court dismissed the 2016 petition as previously adjudicated or waived.
The West Virginia Supreme Court affirmed, holding the claims were either barred by res judicata, contradicted by the record, or meritless under Strickland review given the circuit court’s credibility findings about Dr. Smith’s testimony.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Curry coerced Harper into waiving claims from the March 31, 2003 habeas petition	Harper: Curry coerced waiver of viable March 2003 claims, so counsel was ineffective	State: Harper voluntarily waived those claims in an Oct. 4, 2008 letter; claims were dismissed earlier for lack of factual support	Denied — court found waiver was voluntary, contradicted by record, and claim is res judicata or fails on the merits
Whether Curry was ineffective for appealing the Rule 60(b) denial instead of the underlying Jan. 28, 2011 habeas denial (failure to obtain review of the funding denial for a second expert)	Harper: By not appealing the Jan. 28, 2011 order, Curry prevented appellate review of the claim that the trial court denied a meaningful defense	State: The funding/meaningful-defense issue was adjudicated on the merits twice; Dr. Smith’s credibility and objective evaluation justified denial of a second expert; appealing would not change outcome	Denied — claim previously and finally adjudicated; even if counsel erred, no prejudice because courts defer to credibility findings and would have affirmed

Key Cases Cited

Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006) (standard of review in habeas appeals)
Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (habeas petitions may be dismissed without a hearing when documentary evidence shows no relief is due)
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (prior omnibus habeas is res judicata as to matters raised or which could have been raised; ineffective assistance at habeas is exception)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (adopts Strickland standard for West Virginia)
State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995) (deference to trial court credibility determinations)
Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974) (appellate review of Rule 60(b) denial limited to abuse of discretion)