SER Gary Mullins v. Jim Rubenstein, Comm., W. Va. Div. of Corrections
16-0046
| W. Va. | Mar 10, 2017Background
- In January 2011 petitioner Gary Mullins was accused of forcing 84-year-old George Jacobs at gunpoint (or by threat) to drive from a Kroger parking lot to the victim’s home and bank and to hand over money; petitioner was tried and convicted of kidnapping but acquitted of second-degree robbery and fraudulent schemes.
- The victim delayed reporting the incidents to police until ~8 months later; some potentially relevant evidence (Kroger video) was unavailable by the time police were notified.
- Mullins appealed; this Court affirmed his conviction in a 2013 memorandum decision.
- Mullins filed an amended habeas petition alleging ineffective assistance of trial counsel and re-raising issues from his direct appeal. The circuit court denied relief, finding most issues precluded as previously adjudicated and rejecting the ineffective-assistance claim on Strickland/Miller grounds.
- This appeal challenges the habeas denial; the Supreme Court of Appeals affirmed, holding habeas review barred as to previously litigated claims and finding defense counsel’s performance not objectively deficient.
Issues
| Issue | Mullins’ Argument | Rubenstein’s Argument | Held |
|---|---|---|---|
| Whether habeas may relitigate claims previously decided on direct appeal | Mullins reasserted direct-appeal errors (hearsay, jury note exclusion, insufficiency, grand jury misconduct, prosecutorial remarks) | Respondent: those claims are "fully and finally adjudicated" and barred under W.Va. Code § 53-4A-1 | Court: barred; declined to revisit those claims |
| Whether trial counsel provided ineffective assistance by failing to investigate Kroger video and other shoppers | Mullins: counsel should have obtained video and interviewed store witnesses showing the victim acted normally | Respondent: video was unavailable; delay made witness recall unlikely; investigation choices reasonable | Court: counsel’s investigation choices were objectively reasonable; Strickland first prong not met |
| Whether counsel was ineffective for not calling witnesses (bank employee, sister, victim’s relatives) to show a friendly relationship/loans | Mullins: witnesses at habeas hearing would have shown friendship and voluntary transfers, undermining kidnapping | Respondent: calling them was tactical; testimony not directly relevant to conduct in car; some proffered witnesses were not identified or failed to testify at hearing | Court: choosing not to call them was trial strategy; not objectively deficient |
| Whether counsel was ineffective for cross-examination and other trial omissions (not cross-examining elderly victim on inconsistencies; failing to pursue motions, colloquy re: defendant’s silence, Rule 404(b) issues, timeliness, communication) | Mullins: counsel’s omissions waived or harmed his defense and credibility strategy | Respondent: many claims are undeveloped/speculative, previously adjudicated, or tactical decisions; strong presumption of reasonable performance | Court: most arguments inadequately developed or precluded; strategic choices were reasonable; ineffective-assistance claim fails |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two-prong ineffective-assistance test)
- State v. Miller, 194 W.Va. 3 (1995) (adopting Strickland standard in West Virginia)
- Mathena v. Haines, 219 W.Va. 417 (standard of review for habeas appeals)
- State ex rel. Daniel v. Legursky, 195 W.Va. 314 (courts may resolve habeas claims on either Strickland prong)
- Bowman v. Leverette, 169 W.Va. 589 (statutory bar on relitigating previously adjudicated claims)