*1 782 S.E.2d
Joseph BUFFEY, A. Warden, BALLARD, Respondent.
David
No. 14-0642. Appeals Virginia.
West 6, 2015. Oct.
Submitted 10, 2015.
Decided Nov.
5X1 robbery. The Petitioner contends the circuit denying his requested court.erred relief. Upon thorough pre- review of the record Court, arguments sented this of coun- sel,1 applicable precedent, we reverse the circuit court’s order remand matter entry granting of an relief *3 order permitting and of the Petitioner’s withdrawal guilty píea. I. History Factual and Procedural A. Home Invasion and Sexual Assault - On November at approximately a.m., 6:30 Mrs. of Clarksburg, L.L.2 West Virginia, awoke the bedroom of her home standing and saw an intruder beside her bed. male, The intruder was a white L. and Mrs. eighty-three-year-old was an widow who lived alone. Her on bedroom was the second floor of her‘two-story Brandishing home. a large said, flashlight, knife a and intruder - your “This is I robbery, money.” need responded Mrs. by informing L. the intruder money her on was the first The floor. get intruder then her forced out of bed accompany stairs, through him down the and hallway, and into kitchen. Mrs. L. gave purse, totaling him all the cash her nine dollars. He then took Mrs. L. back upstairs money. to search for in- more He formed her had “been here that he before.” sexually L. intruder assaulted Mrs. Karlin, Esq., N. Allan Allan N. Karlin & they bedroom, pen- when returned Associates, WV, Morgantown, Nina Morri- etrating vaginally from' her behind three Scheck, son, Esq., Barry Esq., York, C. New and'forcing perform times oral on her sex NY, for Petitioner. subsequently him twice'. He tied her hands Romano, Esq., Armstrong, back, David anyone James F. her not to behind her call told Esq., Prosecuting Attorney, minutes, Twenty Assistant departed. and twenty WV, Clarksburg, later, for Respondent. minutes L. herself Mrs. freed and tele- son, Clarksburg
phoned police her officer. WORKMAN, responded Three call Chief Justice: officers transported hospital. L. to and Mrs. (hereinafter Joseph Buffey Mr. A. “Peti- tioner”) 2014¡ appeals June Mrs. L. order interviewed sexual as- County hospital..In interview, Court of Circuit Harrison denying sault nurse at the detail, Amended Petition a Writ of his Habeas Mrs. L. the crime ex- described Corpus, subsequent plaining had not worn a the assailant ejaculated. counts of one two sexual assault and count of In re- condom expresses appreciation practice 1. This Court for the brief Consistent with' this Court's in cases - matters, Amici-Curiae, involving only the sensitive initials of the prose- of cutors, former and federal state opinion. victim will be used in this W.Va. W.Va. See support of the Petitioner. 40; R.App. Shrewsbury, P. 331 n. n. S.E.2d incident; infor- question limited about “[w]ere there details sponse to nurse’s answered, assailants,” pi'ovided substantially mation incon- “no.” he multiple Mrs.'L. robbery to be in sistent with Mrs. L.’s adcount of the Although described “mild she was distress,” considered and assault.4 When officers informed Mrs. L. was alert they he recall more knew could interview. lucid give him they opportunity last one approximately p.m., that'day, 1:40 Later sing,” “to retracted account detailed, tape-recorded provided L. Mi's. really “You incident and stated: want statement, police. In that statement I He know truth? it.” didn’t do robbery reiterated details she “I had explaining, his statement continued assault, explaining she had awakened find (inaudible) neck,” breathing “I my down demanding bed standing her a man beside up story” He made about what occurred. provided to money. she statement said, you “I couldn’t tell what went provided police was identical to- that almost there_” . again L. related the to the nurse. Mrs. *4 18, 2001, assault, robbery attorney On Thomas December circumstances of and her, Dyer up- appointed to Peti- stating represent that G. back was intruder took money According testimony for ad- they tioner. later after searched and stairs hearings request on the “get and down duced at Petitioner’s that she undress demanded relief, Dyer for on Mrs. to Mr. [her] beside knees.” he admitted there the bed participated L that he had non-violent described her assailant as a white male “in three 26[-year-old] that break-ins of but not ad- area.” She indicated he local businesses did wearing jeans light mit and colored-1- involvement the sexual was blue with assault robbery. Dyer -partially shirt that was He further Mr. that and his face informed hidden alibi; allegedly had he a white he .an had returned bandana. spend night a motel after the Salvation Investigation B. The Army break-in.5 Approximately On December ’one n C. Indictment assault, nineteen-year-old week after the non-violent, Petitioner for three The rob- was arrested Petitioner-was indicted breaking bery L., entering and offenses at assault businesses and sexual Mrs. wellás Clarksburg.3 breaking entering iii downtown The Petitioner the crimes of and and' questioned approximately property damage accompanying was nine hours. to the Although Clarksburg robbery he and admitted his businesses. The involvement burglary offenses, sepa- repeatedly séxual he that assault indictment included five stated first-degree assault, he robbery did not commit the rate assault counts sexual a.m., however, L. At potential Mrs. 3:25 told the with a minimum of fifteen he sentence years thirty-five years that into on he had old and a maximum “[t]his officer broken lady’s count, -first-degree one house” said he not each count of but could recall- provided very robbery, possible ten-year sexual assault. The Petitioner minimum Army, included the said he the victim businesses Salvation Petitioner dining encountered ' Pool, Stealey shop. and a'tobacco Salva- room. The victim The indicated that Army sexually-assaulted upstairs; tion Pe- located three-tenths a mile from assailant her go Army upstairs. Mrs. L.’s The titioner he The victim Salvation crime said did home. oc- stolen; money approximately eight curred hours indicated that the Petitioner investiga,- juvenile money assault on A -said 'stolen. Mrs. L. no The co-defendant case, A.L., brealdng entering point entry Army w¡as Salvation tion indicated home; juvenile he was arrested back the Petitioner said with the Petitioner. The door n Originally investigators through indi- told that the Petitioner entered a side victim window. home, bragged breaking disparaging com- about into a but he later cated that the assailant made home; photograph story. second ments about in her recanted that A co-defendant case, exchanged. twenty-nine-year-old Perry, Petitioner said no were Ronald comments was also Items stolen the Salva- arrested. fr.om alleges Dyer Army Perry’s tion did not were found in Mr. residence. Mr. 5..The alibi,, attempt wit- to corroborate -this interview nesses, example, 4. For desk she had or obtain information from the hotel the victim indicated bedroom; awakened to in her clerk. find the assailant (cid:127) sperm and an indeterminate- maximum sentence. tioner as the In particular, source.' January Dyer On Mr. Dyer filed a Motion Mr. was asked: Compel Production Discoverable Mate- If had known that you February 11th rials, noting the' State had been ordered Virginia West State Police Forensic produce “all discoverable information re- Laboratory had preliminary reached some alleged lated sexual assault” within conclusions the effect if there days arraignment yet seven had only people were —if there was two in- done so. volved that would be' the victim and the Testing by D. The DNA perpetrator, Buffey Joe was excluded ... the State Police Lab . you Buffey let plead? Joe Myers Virgi- Lieutenant Brent of the West Dyer Mr. answered: “Of course not.” Laboratory nia State Police ‘Forensic re- rape began ceived Mrs. L.’s Mt and his DNA E. Guilty Plea on .January evaluation 2002. He had January 30,' 2002, On presented the State expedite testing, been asked and' Feb- the Petitioner with a time-limited offer. ruary 2002, he tentatively concluded signed plea agreement The Petitioner belong DNA did to the Petition- February 2002, agreeing plead guilty to February On Myers er. Lieutenant two counts of sexual assault one count of began process retesting samples. robbery. exchange, agreed the State During procedures, possi- those noted the charges regarding dismiss the the business bility of more than one DNA source. male *5 burglaries. charges The However, which the Peti- even that secondary source did not pled guilty potential tioner carried a sentence appear to be the Petitioner. forty years imprisonment. life Mr. 2002, April 5, On six weeks the before Dyer urgency plea recalled the to take the accepted circuit court from the stated, put were on a short “we. fuse” Petitioner, completed Myers his Lieutenant, fpr plea only because the offer was available report by concluding: “[A]ssuming there are Dyer explained time.6 limited Mr. he had only L.]), two (including contributors [Mrs. “strongly signing recommended” the plea Joseph Buffey is as excluded the donor the agreement and told the Petitioner he seminal rape fluid [from identified the kit] (cid:127) likely get was concurrent on sentences all cuttings.” report The was mailed to Detec- the counts to he was,pleading guilty. which Matheny tive Robert Clarksburg Po- the He also informed the Petitioner that his ac- 12, Department lice July on ceptance plea of the offer likely result It is Myers’ uneontested that Lieutenant longer potential a sentence no than a report provided was to the defense be- burglaries.7 sentence for the business-related accepted the circuit court fore the Petition- guilty, plea. .'Dyer February er’s Mr. On the was allo- testified he Petitioner “desperate” charges, saying to learn the test cuted to the results. three “broke De- spite repeated inquiries prior his elderly into lady’s to the Peti- an house and robbed her acceptance., offer, tioner’s .plea the Mr. and forced her have sex with me.”- Dyer was yet informed delayed acceptance the results were not court plea circuit of the (cid:127) indicated, complete. He later habeas “some order to additional informa- .obtain procéedings, “put that he’’would have tion plea right the make sure [the] is the Judgefs] brakes accepting plea” thing to do.” The court instructed the Divi- he had known the results pre-sentence excluded Peti- sion of Corrections to conduct testified,. during 6. The Petitioner might pros- later habeas had also State indicated that it proceedings, signing delay that he did not statutory rape, ecute the Petitioner for plea agreement because it was described to be a upon pregnancy thirteen-year-old girl- of his thought signing time-limited offer and he friend. agreement only Despite choice. re- offer, peated plea references to time-limited upon allegedly date the offer was which set to expire is not clear from the record. problem.” That evalua- Ms. Tichenor infqrmed She her Petitioner. evaluation 2002, reported that tion, April discovery completed tests had State’s DNA committing' completed, repoft April admitted the Petitioner issued sexually but denied assault- burglaries Tichenor store 2002. On March Ms. filed Petition, ing Mrs. L. which included an Amended Habeas suppressed DNA re- issue of additional (cid:127) May hearing resumed on a pathologist Ms. Tichenor also hired sults.9 accepted court the Petitioner’s expert purposes DNA an evalua- the Petitioner to court sentenced plea. The tion.10 robbery charge fifteen forty years on the years on each sexual assault thirty-five An on March hearing was held omnibus aggre- consecutively, for an charge, to run testimony regarding court heard 2004.The seventy ten to one hundred gate term of the DNA from the Petitioner’s ex- profession of inno- years. The Petitioner’s Myers pert, as as Lieutenant well Division Corrections cence genetic police lab and Frances Chiafari completion of the discussed, was the nor Baltimore, laboratory Maryland. testing’ testing revealed. available Based DNA evidence Denial of Habeas Relief F. First time, experts could conclude certainty percent” filed with “one the Petitioner hundred On November relief, poten- as a request corpus be ruled out pro se could tial, claiming counsel minor contributor.11 ineffective assistance time, misconduct. At that prosecutorial Adclitionally,in to the Petitioner’s response still that the DNA unaware Petitioner was suppressed assertion evi- the State had completed. testing Counsel Terri had been dence of the DNA test results represent Pe- appointed to Tichenor was plea, acceptance to' the Petitioner’s early proceeding in in the habeas titioner argued stand should because innocent, Insisting he was Peti- personally April unaware officialswere the results tioner her obtain asked 2002, report of the Petitioner’s time ' testing. Tichenor Ms. contacted Traci plea’.12 Cook, attorney, to in- prosecuting assistant *6 2, 2004, April circuit court testing.8 On denied DNA Ms. quire about the When relief, request for habeas subsequently telephoned Tichenor Petitioner’s Ms. Cook information, said, finding a DNA to be Ms. Cook “We have results inconclusive. among might theoretically be not become an Prose- Petitioner them. 8. Ms. .Cook did Assistant Attorney County upon cuting based for Harrison until Febru- stated that He conclusion.was profile absence a of the individual known ary, of deposited primary male DNA he who had Lacldng sample from examined. the man grounds by were raised the Petitioner in 9. Eleven (cid:127) clearly sperm present, whose was reveal proceeding. invol- habeas He asserted: the first belonged which man, alleles to that unknown .DNA untary plea, appeal convic- of counsel to failure percent” ex- he could "one hundred confession, tion, suppression of .evi- coerced being present clude the also Petitioner from counsel, dence, refusal assistance of ineffective donor, in the minor somewhere mixture as a continuance, insufficiency question expect- guilt, actual more severe sentence than of ed, testimony presented 12.The also sentence, and mistaken advice of excessive Perry, an Ronald individual arrested with parple probation eligibility. or counsel Army break-in. Salvatiqn Petitioner Perry Mr. had told testified that the Petitioher him , Mittal, pathol- hired Dr. Vimal 10. Ms. Tichenor - holding he and had turns a "cousin” taken ogist, analyst and Mittal was not a DNA had Dr. assaulting sexually her. down the victim and It laboratory a DNA or worked in conducted never sought Perry was later revealed Mr. twice test, training in DNA DNA had no science He upon his reconsideration his- sentence qualification experience as a and no or DNA assistance Moreover, in the Petitioner’s to'the State case. expert. emphasizes that Mr. Perry's the vic- inconsistent with statement was hearing, explained Myers attempt 11. At Lieutenant tim’s did and allegation statement many being definitively investigate could not state how contribu- a "cousin” present in were or whether in the crime. tors the mixture involved violence, petition appeal A to this re- paper Court was sexual and been Mrs. L.’s boy.17 fused. Retesting DNA and
G. The Despite testing results, the new DNA ex- Habeas Petition Second cluding the Petitioner as source se- men, application the second for habeas relief Petitioner, July represent- On subsequent July was to a denied 2013 omni- counsel, ed current filed a Motion hearing. bus The circuit court reasoned: Testing Post-Conviction DNA under West Virginia § The mo- Code 15-2B-14 rejects [T]his Court the Petitioner’s claims granted, employing newly- tion and was testing recent analysis methods, developed testing the examiners purportedly search results CODIS identi- profile obtained a more from detailed DNA fying an individual other than the Petition- again the crime The Petitioner (and scene.13 was primary er herein as the arguably conclusively sperm as the excluded primaiy sole) contributor the male DNA found at Moreover, source. the examiners also identi- to; the crime scene is evidence sufficient sperm fied trace amounts second male (a) a sufficiently question raise substantive source, Myers as Lieutenant had discovered (b) guilt; as to the actual prove in and óf testing in 2002. revealed that the sec- innocence”; itself the Petitioner’s “actual definitively ond source was the Petition- (e) being presently show there a “manifest er.14 injustice” imposed upon present him his criminal convictions sentene- and related Based the results the new DNA (d)' ing/incarceration; demonstrate and/or testing that either excluded Petitioner as necessity” resulting a “manifest all there- primary secondary-sperm contributor, warranting grant from this Court his sought a the Petitioner writ of cor- requested Habeas him to relief and allow pus. In December while the habeas prior guilty pleas withdraw order petition pending, the circuit court au- (cid:127) them vacated. thorized search CODIS database15 sperm primary Myers agreed determine Notably, whether Lieutenant source conclusively could be The search re- identified. Petitioner could be excluded as sperm primary secondary vealed that both primary source was contributor. Bowers, Virginia prison However, Adam in- a West the circuit court found years mate.16 Mr. was sixteen Bowers old- unequivocally did “not ... exclusions assault, the time sexual Mrs. L.’s lived determine not [the Petitioner] whether L., history actually present few blocks from Mrs. had a scene] the crime [at testing degree of DNA conflicting second round identi- also The evidence is multiple fied DNA evidence on items Mrs. which the Petitioner Mr. Bowers *7 bedding, including L.’s sexual assault kit and high acquaintances. been Mr. Bowers went negative previously items found to be for semen. younger school the with sister. Petitioner’s Both girlfriend the a friend Petitioner’s and testified very low level of DNA from the second that the Petitioner and Mr. Bowers had been ejacula- source source indicated the was not an together ap- at the Petitioner’s mother's home sperm probably tin' and the been transferred proximately one-month-prior the sexual as- penis single to the of the assailant to the Although girlfriend sault of Mrs. L. testified independent analyst per- assault. DNA An who engaged that Petitioner and Mr. Bowers had Keel, testing, explained formed the Alan new that together, previously in car robberies she had told phenomenon may unlikely, while this seem it is a defense did not know Petitioner counsel recognized reality the forensic DNA field - Bowers, Mr. He relevant further literature. indicated extremely of DNA low levels are inconsistent expected what be data would- to show Bowers 17. Mr. was indicted for sexual as- perpetrator. there had been a second'male 2014, January robbery sault and of Mrs. inL. subsequent was convicted those crimes acronym an DNA CODIS Combined jury May 2015 verdict. System, system Index an FBI contain- database federal, state, ing profiles contributed participating and local forensic laboratories. 516 giving Brady Maryland, v. activities State violated participant in various 1194, (1963), 83, 10 215 charges.” 83 S.Ct. L.Ed.2d ... criminal
rise to the
failing
exculpatory
report
an
disclose
The,
presented
also
.new evi-
Petitioner
prior to the
possessed
it
more than six-weeks
prosecution was aware
dence that
the.
(3)
hearing;
coun-
the Petitioner’s
final
nature,of
the DNA
exculpatory
results
ineffective; (4)
Petitioner’s
sel
indict-
February
early
2002
the course
.as
through
grand jury
was secured
false
ment
testing. The circuit
Myers’ initial
Lieutenant
(5)
claims are
testimony; and
the Petitioner’s
grant
the basis of
relief on
court declined
review, by
judicata. Upon
not barred
res
argument that new evidence
the Petitioner’s
Court,
we find that
Petitioner
suppression of DNA evi-
proved the State’s
to relief
the State’s fail-
entitled
entry
guilty 'plea.
of his
prior to the
DNA evidence.18
ure
disclose
court’s
appeals
now
circuit
Petitioner
request
for habeas relief.
rejection of his
Brady Maryland
A.
v.
"
of Review
II. Standard
Brady,
In
system
court’s
a circuit
of the
This Court reviews
observed
ad-
“our
justice
the fol
ac-
of a
under
when
petition
ministration
suffers
dismissal
habeas
87,
lowing
unfairly.”
cused
treated
standard:
Id.
treatment,
Seeking to
unfair
alleviate
findings
reviewing
challenges
suppression by
the Court
“the
held
and,..conclusions of
in a
court
circuit
prosecution of
an ac-
evidence favorable to
action,
corpus
apply
we
a three-
habeas
process
where the
cused
violates due
prong
We review
standard
review.
guilt or to
evidence is material
either
disposition
final order and the ultimate
irrespective
good
or
punishment,
faith
discretion,standard;
an abuse
under
prosecution.”
faith of the
Id.
bad
findings
clearly
underlying factual
under
standard;
questions of law
erroneous
guidelines
addressing
enun
subject
a de
are
novo review.
Brady,
explained
as fol
ciated
this Court
Haines,
Syl.
Pt. Mathena v.
W.Va.
syllabus point
Young
lows
of State v.
two
(2006).
Further,
an
“[o]n
517
probability that,
Frye,
had the
nabfle]
132 S.Ct. at
In Lafler,
1407.
the Su
of
to. the
-the
preme-
disclosed
defense
result
that
right
concluded
“the
proceeding
been different.”
adequate
of
assistance
counsel cannot be de
Morris,
76, 85,
v.
S.E.2d
W.Va.
fined-
taking
enforced without
'account of
583,
(quoting
States v.
United
bargaining
central role
plays in se
3375,
Bagley, 473 U.S.
curing convictions
determining
sen
(1985)). However,
showing
L.Ed.2d 481
“a
Lafler,
1376,
(2012).
tences.”
132 S.Ct.
materiality
require
of
does not
demonstration
Supreme
The
Court’s
con-
.
observations
by
preponderance
a
[of
evidence]
that
cerning
importance
plea negotiations
of
suppressed
disclosure of the
evidence would
“suggest
the assertion that
Lafler
ultimately
have resulted
in the defendant’s
a,‘trial
Brady
right’
not preclude
will
it
Kyles
acquittal....”
v.
Whitley,
U.S.
being applied during plea
bargaining.”
115 S.Ct.
L.Ed.2d
Petegorsky,.
Duty
M.
Disclose Excul-
(1995).
patory Brady
During,
Evidence
Plea Bar-
(2013).
Applicability
gaining, 81
L. Rev.
Brady
B.
of
Ford.
Negotiation Stage
Plea
Supreme
The chief
of
concern
Court in
Proceedings
of
[Frye,
both
ensuring
] was
a fair
Lafler
judicial process
just
judice
issue,
The ease sub
thati.results
out-
raises the
not
comes,
solely ensuring
Court,
fair
previously
-trials.
by this
of wheth-
This
addressed
concern
prosecution
pre-plea
necessitates
er the
has a
disclosure of
disclose
exculpatory Brady
plea bargaining
just
evidence at the
because
stage.
as a
Supreme
presumed
defendant “cannot be
United States
Court’s
specifically
decision
make
to-
critical
-without
directed
decisions
counsel’s
advice,”
presumed
ward trial
83 S.Ct.
neither can
be
behavior. 373
he-
U.S.
1194. The United
plead guilty
States
Court has
make an-informed
decision
principles
determined
under-
whether
without material
evidence.
lying Brady apply to
of excul-
the disclosure
(quoting Lafler,
3647-48
132 S.Ct. at
patory
during
plea bargaining
1385).
stage.19
juris-
of
We observe that the conclusions
plea negotia
The critical
of
nature
Brady’s
dictions evaluating
application to
recently
tions was
the United
addressed
plea negotiations
widely
have been
inconsis-
Supreme Court
in the context
effec
employed
tent. The rationales
those
'
pre-plea
tive client assistance
analyzed
courts are
below.
—
stage.
U.S. -,
Cooper,
See
v.
Lafler
Brady Challenge Guilty
Plea:
to.
1376, 1384, 182
132 S.Ct.
L.Ed.2d 398
,
Requiring
Rationale
.
The Court
possess
held
defendants
Exculpatory
Disclosure Material
Evidence
right
Amendment
Sixth
counsel that ex
Directly addressing
applicability
plea bargaining process.
tends
Id.
Brady principles
negotiations,
to plea
premised,
part,
This
conclusion is
Ninth
Appeals
Circuit Court of
in Sanchez
today
justice
fact
“criminal
is for the
(9th
States,
Cir.
part
system pleas,
system
most
50 F.3d
“
1995), explained
Ninety-seven
‘a
percent
trials.
con
defendant’s decision
federal
ninety-four
plead guilty
whether
not to
is often
percent
victions and
con
heavi
state
ly
guilty pleas[.]”
appraisal
prosecu
victions
are the result of
Id.
influenced
(quoting
“In
tion’s
today’s
justice system,
case.’” Id. at 1453
Miller v.
criminal
therefore,
(2nd
Angliker,
negotiation
bargain,
848 F.2d
Cir.
1988)).
trial,
Further,
unfolding
rather than the
almost
the court stated that a
always
point
right
critical
for a
defendant.” Waiver
to trial “cannot be
brief,
artfully
bargaining.is
adjunct
19. As
asserted in
amicus
the.
"not some
to the criminal
exclusively
right,
justice system;
justice
system.”
"it
become
trial
it is
has
the criminal
—
—,
majority
Frye,
hollow
reed.” A
of crimi-
substantial
Missouri
*9
thus,
1407,
guilty
plea
added).
pleas;
(emphasis
nal cases are resolved
deemed
knowledge
entering
of material
information
other
into
witnesses” before
a bind
without
”
50 F.3d at
prosecution.’
ing,
plea agreement
withheld
“fast track”
a crimi
with
contrary
reasoned that
1453. The court
prior
nal
Id. at
defendant
indictment.
1
temptation
prose
625, 122
could create
decision
2450.2
S.Ct.
exculpatory
deliberately
cutors “to
withhold
In ruling that such
was not con-
disclosure
part
attempt
of an
to elicit
information as
mandated, however,
in
stitutionally
the Court
Id.;
also
States v.
guilty pleas.”
see
United
specifically distinguished impeachment
Ruiz
Cir.1999)
(2d
Persico, 164
804-05
F.3d
exculpatory
from
Id. at
evidence
evidence.22
(“The
obligation to disclose
Government’s
630, 122
2450. The Court noted that
S.Ct.
pertinent to
is
the accused’s
materials
impeachment
exculpar
differs
evidence
plead guilty;
defendant
decision
tory
it is not
infor-
evidence because
“critical
with full
make that decision
entitled to
always
mation which the defendant must
[exculpatory
im
awareness of favorable
pleading guilty given
be aware
peachment]
known to the Govern
way
may,
random
which such information
Avellino,
ment.”);
v.
United States
F.3d
not,
may
help particular
defendant.” Id.
Cir.1998) (“The
(2d
government’s
'perti
obligation to make such disclosures
impeach
This Ruiz distinction between
only
preparation
not
to an
nent
accused’s
exculpatory
has
ment evidence and
of whether
trial but also to
determination
analyzed repeatedly by
attempt
courts
plead guilty.
The defendant
ing
negotiate
regarding
issues
fairness
to make that decision with full
entitled
plea negotiations.
Supreme
The Nevada
material evidence
awareness
clearly
Court
articulated the foundations
v.
government.”); accord
known to the
White
—
Huebler,
Ruiz
in State
distinction
(8th
States,
416, 422
Cir.
858 F.2d
-,
(2012),
Nev.
de
cert.
P.3d
1988);
Marshall,
Campbell v.
769 F.2d
—nied,
-,
S.Ct.
(6th Cir.1985);
Sturgeon,
(2013):
L.Ed.2d 767
(Ct.App.
605 N.W.2d
Wis.2d
1999).
opinion,
(cid:127)In our
the considerations that
led
decision Ruiz do
lead
Addressing
applicability
the issue
the same
when it
ma-
comes to
conclusiqn
impeachment
Brady to
evi
the disclosure
terial
information.
While
negotiations in United
dence
impeachment
value
information
de-
Ruiz,
622, 122 S.Ct.
States v.
pend on innumerable
pri-
variables that
(2002),
the United States
L.Ed.2d
marily
play
come into
at trial and therefore
Supreme
Court held that
defendant did'reoí
arguably make it
than critical informa-
less
process right
pre-plea
disclo
have a due
entering
guilty
tion in
plea,
the same
impeachment
information20 in the
sure of
information,
cannot
623, 122
be said
possession
the-prosecution.
Id. at
just
special
which
relation to the
specific
before the
issue
prosecu
fairness of a trial but
in Ruiz
whether federal
also
relation
Court
plea is
required
“impeachment
guilty
whether a
tors are
to disclose
valid and accurate.
Ruiz,
safety
Supreme
privacy
the United States
Court
and threaten the
of wit-
20.In
-recognized
"in
a minimal risk that
the absence
nesses.”
information,
impeachment
innocent individuals
plead guilty,”
significant
... will
and a
risk that
rationale,
21. As an additional
requiting
impeachment
disclosure of
material
already
agreement
observed that
Ruiz
"seriously
[prosecu-
interfere
could
specified
government
provide
ma-
,..
securing
pleas
tion’s] interest in
exculpatory evidence.
terial
ongoing investigations,
disrupt
expose pro-
spective witnesses to serious
536 U.S. at
harm.”
631-32,
In contrast
[to Ruiz’s
eviT
reasoned:
dence],
evidence at issue
Thus,
Ruiz entirely
distinguishable
sig-
case
in at
different.
least two
question
First,
directly
respects.
we have a
addressed
nificant
the evidence with-
-
Ruiz: whether
by
prosecution
criminal
held
the'
this case is
defendant’s
“voluntary”
alleged
exculpatory,
just
can
be
when
to be
and not
ever
government possesses,
impeachment,
Second,
evidence that
Ohiri’s
evidence.
found, however,
qutors,
counsel,
court,
ultimately
prior
The Huebler
defense
and the
court
23.
videotapes
entry
withheld
the State
that case
guilty
drugs
of his
found
plea,
material;
thus,
were not
the State’s failure to
driving
day
in the
car was
his arrest
videotapes
disclose such
with-
did .not warrant
planted
knowledge.”
were
without his
337 F.3d
plea.
drawal of the guilty
Permitting
to move to with-
because
a defendant
guarantee
fair
v. John
guilty plea
draw a
without hav-
trial.
Matthew
entered
son,
Cir.2000),
ing
given exculpatory
(5th
evidence in
F.3d 353
Fifth
matter,
Subsequent
of this
28. The evidence withheld
to remand
Nelson constituted
electronic
between an
'recorded
communication
ultimately
court
concluded that the undisclosed
police officer
undercover
defendant that
United States v. Ohi
evidence was
material.
contended could have been used
defendant
ri,
(10th Cir.2008).
Fed.Appx.
entrapment
F.Supp.2d
defense. 979
bolster an
at 134.
impermissible government
focus
“[t]he
Circuit stated
rule’s
ed
conduct.
Id.
Further,
protecting
suggests
at 462.30
court
integrity of
held that
trials
occur’,
may
no
defendant
established thatihis
that where
trial is to
be
there
induced‘by
the officer’s
no constitutional
misconduct and
violation.” Id. at 361. The
that “[i]f
reasoned
a defendant cannot chal
found that
violation
“[b]ecause
court
lenge
validity
of a
based on
potential
subse
defined
terms
effects
quently
police misconduct,
discovered
judge’s
jury’s
information on a
officers
undisclosed
likely
engage
be more
in such con
guilt,
assessment of
it
follows
the failure
duct,
likely
as well as
it
more
conceal
prosecutor
infor
disclose exculpatory
.
*12
help,
guilty pleas.”
elicit
Id. at 469 The
waiving
right
an
mation to
individual
to
violation;”
quoted
recognition
court in Fisher also
in
trial is not a
constitutional
(“if
Sanchez' that
a defendant
not raise a
ap
361-62. The Fifth
its
Circuit reaffirmed
Brady
Maryland
guilty
[v.
claim after
]
proach
years
to the issue nine
later in United
plea, prosecutors may
tempted
be
to
(5th
deliber
Conroy,
Cir.2009),
States v.
Likewise,
Moussaoui,
Court finds that the
in United States v.
authority supports
(4th
better-reasoned
the con
Cir.2010),
591
263
F.3d
Fourth Cir-
clusion
constitutionally
defendant
explained
cuit
exculpatory
during
entitled
right, however,
Brady
right.
[t]he
is a trial
plea negotiation'stage. See Kevin C. McMu
requires
prosecutor:
It
to disclose evi-
nigal,
Pleas,
Disclosure,
Guilty
Brady
dence
evi-
defense
Wrongful Convictions)
Case W. Res. L.
57
guilt
punish-
is material to
either
Rev. 651
(discussing reasons innocent
ment,
preserve
exists
the fairness
people plead guilty
Brady
and how
disclosure
a trial verdict and to minimize
chance
in
context
risk of
reduces
such
person
that an innocent
would be found
pleas).
plead guilty
“Often the' decision
guilty.
heavily
ap
influenced'
the defendant’s
However,
Id, at 285.
the court
because
praisal
prosecution’s
against
case
him
found that the
defendant Moussaoui did
apparent
securing
likelihood
Brady violation,
not demonstrate a
it de-
leniency
guilty should
be offered and
clined
resolve the
issue whether relief
Oakes,
accepted.” United
v.
411
States
for a
guilty plea stage
violation at the
(D.Me.2006)(internal
F.Supp.2d
4
citations
would be available. Id. at 286-88.
omitted). Permitting
prosecutor
to with
later, however’,
years
Just
three
hold
a defen
approach
markedly
Fourth Circuit’s
dif-
dant’s
of a
offer
evaluation
would essen
Fisher,
ferent.
United States v.
F.3d
tially
prosecutor
]
in the role of an
“cast[
(4th Cir.2013),
appellate
court held
proceeding
not com
architect
that 'does
that a
justice.” Brady,
law enforcement officer’s false
port
state-
with standards
ment in
search
warrant affidavit constitut-
U.S.
29. See also Friedman v. stems from an affirmative F.3d (2d Cir.2010) (declining hypothetical integrity prose- address sentation that strikes at the suppression issue of speculating (internal but quota- cution as a whole.” Id. at 466 suppressed impeach- that "even if" omitted). lawyer [for tions "Because likely exculpatory, ment evidence had been Ruiz thought grounds defendant] that there were no applied prevent challenge concealment warrant, challenge on which to she believed evidence). such government’s strong case to be 'a one’ and plea.” Defendant to enter a Id. advised court Fisher noted that the "Defen- misapprehension pleading guilty] dant’s [in 1769; 15, 129 see also Supreme Court 470 n. S.Ct. Both country- 437, 115 throughout (recog Kyles, inferior courts U.S. at S.Ct. 1555 recognized that consistently our crimi nizing prosecution has affirmative prosecutors justice system has imbued- prosecu nal to disclose evidence because “the search “special role tion, with a know is undis which alone can what Greene, 627 U.S. closed, truth.” Strickler consequent assigned re must be 1936, 144 L.Ed.2d 286 likely sponsibility gauge net effect of encouraged has resolution The Court evidence_”). all such favor disclosure. issues doubtful diligent Courts have also been Agurs, United States emphasizing prosecutor’s “a office can (1976), Court rea 49 L.Ed.2d get Brady by keeping itself in around dealing are an inev we soned: “Because ignorance, infor by compartmentalizing standard, and because the itably imprecise aspects of mation about a case.” different of evidence can sel significance of an item Duckworth, (7th Carey v. F.2d accurately until the entire predicted dom be Cir.1984). requires prosecutor to prudent prosecutor complete, record it “disclose information of has knowl which questions resolve favor will doubtful *13 Padilla, edge and United States v. access.” 108, 96 at S.Ct. 2392. disclosure.” Id. (D.N.M.2011) 1103876, (internal 2011 WL *7 449, 556 U.S. 129 In S.Ct. Cone v. Bell omitted). duty citations to disclose ex Such 173, (2009), 1769, 701 the L.Ed.2d United possession to all in of the tends Court, explained: Supreme States team, prosecution including police and scien Although Process Clause of the Due tists, regardless prosecutor of whether the is Amendment, interpreted by as Fourteenth Kyles, 514 personally aware the evidence. Brady, disclosure of only mandates the Further, 433, 115 1555.31. U.S. at S.Ct. obligation to dis- material to disclose is intentional whether the failure to the defense close evidence duty is “irre irrelevant because exists broadly prosecu- may under a arise more spective good of the faith or bad faith of the statutory obligations. See tor’s ethical 87, prosecution.” Brady, U.S. at 83 S.Ct. 373 437, Kyles, 514 at 115 1555 U.S. S.Ct. 9 . 4 11 (“[T]he (and, hence, Bagley Bra- in in rule ) prosecution dy requires than less States, 78, Berger 295 55 U.S. United Criminal Justice ABA Standards for (1935), 79 1314 overruled on S.Ct. L.Ed. Func- Prosecution Function and Defense States, grounds by other Stirone v. United (3d 3-3.11(a) ed.Í993)”), ABA also tion See 252 361 U.S. 80 S.Ct. L.Ed.2d 3.8(d) Rule of Professional Conduct Mo.del (1960), United Court dis States (2008) (“The prosecutor in criminal a case duty prosecutor: cussed the of a timely shall” “make to the de- disclosure Attorney repre- is the United of all or information fense known ordinary not of an to a sentative party negate prosecutor to that tends controversy, sovereignty but whose a mitigates guilt of the of- the accused or obligation govern to com- impartially is as fense, and, sentencing, with connection govern all; pelling obligation as its to at tribunal disclose the defense and interest, therefore, in a criminal and whose mitigating unprivileged all information case, prosecution not that it shall win except is prosecutor, known to the when such, justice but shall be done. As he prosecutor responsibility this relieved tribunal”) peculiar very in a protective definite sense by a order As of the law, observed, aim of prudent prose- servant twofold we have often guilt escape transparency, which shall cutor will err on the side may prosecute resolving He with questions in favor of innocence doubtful suffer. indeed, vigor disclosure. earnestness he should do 438-39, case, Kyles, acting government's behalf in 31. See 514 U.S. at S.Ct. on the ("[T]he prosecutor duty including learn police,”). individual has a favorable evidence known to the others blows, But, part attempt guilty pleas.’. hard of an to elicit so. while strike Sanchez, It liberty not at foul prosecutor he is strike ones. at If F.3d 1453. improp- to refrain so, as much prosecutor “cast[ ] did produce wrong- er calculated methods proceeding of an the role architect every legiti- as it is to use ful conviction comport does with standards ” bring just means to about a one. mate justice[.j Brady, 83 S.Ct. U.S. Permitting defendant to move to withdraw he entered without holding principles justifying that a having given exculpatory evidence in permitted criminal must be defendant government’s possession comports prose challenge guilty purpose prosecution’s Brady failure disclose mate cution’s Accordingly, obligation. light expressed sagaciously rial Nelson. were precedent balance of circuit court and the Court, case, In that States District purpose Brady, can assert his Nelson District of Bra Columbia referenced argue claim that his recognition dy’s inscription on the an walls knowing voluntary. Justice, Department of of the United States stating: point “The its United States wins Nelson, F.Supp.2d at 130. justice is done its citizens whenever recognition objective full the desired Nelson, F.Supp.2d (quot at 130 courts.” promote justice citizens, for this state’s 1194). ing Brady, 83 S.Ct. 373 U.S. at prin- this Court holds that these fundamental Expounding upon proposition, the court ciples compel the conclusion that a defen- in Nelson continued: process rights, dant’s constitutional due A who is forced make a defendant Brady Maryland, enumerated going pleading choice about to trial or (1963), L.Ed.2d *14 guilty government unaware that the has plea negotiation stage to the of extend the “which, not if made disclosed evidence proceedings, may criminal defendant available, him,’ exculpate tend id. upon á seek withdraw 87-88, 1194, [Brady] at 83 suffers S.Ct. material, prosecution’s suppression the of 'ex- unworthy unfair treatment of the bedrock culpatory evidence. Department ideal inscribed the Justice Appeal C. Resolution Petitioner’s the of Moreover, precluding walls. a defendant presented This Court with the raising Brady
from such a claim after a costly Petitioner’s contention that the State violated create a risk too to' eould obligations in integrity system justice process of the due enunciated ' material, prosecutor Brady by failing tempting a to disclose favor countenance — stray testing from to- prior that bedrock ideal ‘deliber- able of DNA results ately exculpatory guilty plea.32 information as As withhold Petitioner’s discussed law, argues applicant, that this Court’s to the which be examination favorable ' regarding applied retroactively. assertions failure to the Petitioner’s 608; 762, Markley exculpatory 277 S.E.2d at see also v. by disclose evidence is foreclosed Coleman, 729, 732-33, 49, 215 W.Va. 601 S.E.2d judicata of res because that was doctrine issue 52-53 (2004). request for raised in the first habeas relief. The upon of the record in Based this Court’s review principles judicata apply which res "extent case, was this precluded, we find that corpus proceedings” post-conviction request, in his from second habeas McKenzie, was addressed in Losh v. 166 W.Va. raising issue of failure to disclose the State's 606, sylla- 608 S.E.2d 277 exculpatory evidence claims are because his Losh, point bus four of held: we upon Subsequent premised new to the evidence. corpus hearing A omnibus habeas proceeding, first- habeas the Petitioner obtained judicata as res as to all matters raised and technological- significantly more detailed-and testing through statutory all matters known or which with reasonable ly advanced known; however, diligence Virginia an could have mechanism enunciated in West Code applicant may petition provided § the court on the still 15-2B-14. This evidence additional following grounds: origi- support ineffective assistance for the Petitioner’s claim that the material, hearing; corpus testing exculpatory, counsel at the omnibus habeas nal DNA evidence; Further, or, newly change suppressed by improperly discovered the -State. 524 fault, v. guilt United States above, Court United States blame.” n - (D.D.C.1997). 600, suppression Blackley, F.Supp.
Brady
“the
held that
an ac
favorable to
prosecution of evidence
response,
the State contends the DNA
process
request
due
upon
violates
cused
testing
inconclusive and there-
results were
guilt
is material either
the evidence
where
actually
Petitioner.
fore
irrespective
good
punishment»
or to
However,
“argument ... confuses
the State’s
”
prosecution.
or bad faith
faith
weight
with its favorable
of the evidence
compo
1194. The three
U.S. at
S.Ct.
Kyles,
tendency.”
S.Ct.
U.S.
claim,
Brady
recognized
nents of
as
this
Indeed,
State could have
adopted,
Youngblood-,
existence
include the
focusing upon
strategy
trial
the inconclu-
that is
the accused
favorable to
evidence
possi-
siveness
the DNA results and/or
evidence, sup
impeachment
present
bility
even
that the Petitioner was
willfully or
pressed by
inad
the State either
else
assault.
someone
committed
sexual
vertently,
material.
W.Va.
however,
potential
strategy,
trial
does
Such
128, Furthermore,
Brady de
S.E.2d at
negate
the critical nature
the fact that
obligates prosecutors to en
ineluctably
cision
the DNA
the Petitioner
have utilized
could
pos
exculpatory material
sure that all
support
theory of
innocence.
disclosed; thus,
investigators is
of its
session
fa-
Because
"the
evidence was
we find
prosecutor or an
suppression by either a
vorable,
of a
viola-
the first element
of Bra
investigator can constitute violation
tion is established.
dy. Syllabus point
Youngblood
makes
one
Evidence
Suppression of
ábundantly clear:
Addressing the
prong
second
investigator’s knowledge of evi
police
A
violation,
it did not
the State contends
imputed
case is
a criminal
actually suppress
testing
the DNA
results.
Therefore,
prosecutor’s
prosecutor.
dis
Rather,
July
$002,
State claims
Brady Maryland,
duty under
closure
mailed
date
which the evidence was
L.Ed.2d
Matheny,
only
the first and
Detective
(1963)
Hatfield,
and State
W.Va.
orally
Lieutenant
communicated
time
Myers
disclo
evidence could
partici-
upon the
as the other
the accused as well
a reasonable doubt
tioner
cast
charges. See
pants
prosecutor’s
assault
It is
guilt on the sexual
the trial.
his
(internal citations
Sanchez,
at 1454
50 F.3d
impar-
a tone of fairness and
to set
involving
omitted) (“[T]he
issue
a case
vigor-
tiality,
he
and should
and while
there
reasonable
is
is whether
case,
doing
ously pursue
so
the State’s
disclose
for the failure to
probability that but
quasi-judicial role
he must not
abandon
material,
would
the defendant
is
the law.
with which he
cloaked under
gone
plead
and would
have refused
Boyd,
Syl.
v.
W.Va.
Pt.
omitted).
trial.”) (internal citations
plain
It is
that the State’s
S.E.2d
presented with a situation
This Court
a conviction
overwhelming
obtain
desire
requested the
repeatedly
which
defendant
unspeakable
for this
crime of violence fueled
testing;
incorrectly in-
results of
legally
untenable series of
which
events
testing
yet
com-
that such
formed
petitioner’s thirteen-year
culminated
presented
a time-limited
with
plete; and was
agreement
My
with
period
incarceration.
accepted upon
advice
offer
grounded solely
grant of
relief is
the DNA results were
find that
counsel. We
interpretation
Court’s
this
favorable, suppressed,
material
Maryland, 373
S.Ct.
Thus,
process
the Petitioner’s due
defense.
(1963),
our related conclu
L.Ed.2d
ia.Brady,<were violated
rights, as enunciated
requirements
Brady’s
ex
sion that
disclosure
exculpato-
suppression of that
by the State’s
the State’s control that
tend
ry evidence.
regardless of
to the defendant
favorable
Conclusion
IV.
plea agreement
trial
It
whether a
ensues.
analysis, this
foregoing
upon the
Based
I concur in the
upon
that basis which
to disclose
the State’s failure
Court finds
petitioner may
majority’s
decision
six
test
results obtained
proceed
guilty
withdraw
plea hearing
prior to the Petitioner’s
weeks
system justice
noth
trial. Our
demands
process rights,
due
the Petitioner’s
violated
ing less.
This Court reverses the
prejudice.
to his
order
Circuit
June
proce
My .agreement
majority’s
with
this matter
County
remands
Harrison
resolution should
be read to
dural-based
per-
relief and
granting habeas
for an order
suggest
being granted in
the relief
this
to withdraw his
mitting the Petitioner
'evidentiary proof
case is driven
plea.
petitioner’s guilt or innocence. As the Unit
Directions.
and Remanded with
Reversed
long ago
Supreme Court
made
ed States
clear,
suppression by
prosecution
“the
reserves
LOUGHRY concurs and
Justice
to an accused
re
evidence favorable
concurring
right
opinion.
to file
quest
process where the evi
violates due
guilt
or to
LOUGHRY, J.,
punish
dence is material either
concurring:
ment,
good
irrespective of the
faith
bad
convict,
obligation is not
“The
State’s
prosecution.”
faith of the
that,
possible, truth
so far
but
see
added).
(emphasis
Supreme Court
Maryland,
emerges.”
Giles
explained
holding
applica
that this
further
(For
98, 87
The State has
explanations
several
ing
prosecutor
effects when the
fails
in
why
suppressed
to act
DNA evidence does
justice.
the interests of
fully
As
petitioner.
Of
the United
exonerate the
critical
Supreme
import, however,
eloquently
States
Brady
explained
is the fact that
does
long ago, prosecutor
a
is
require
complete
establish
unequivocal
duty
and
exoneration
before
the representative
ordinary party
not of an
of disclosure
-A
arises.
violation rer
controversy,
tó a
’but of a sovereignty
evidence,
suits material
obligation
govern
whose
impartially
is as
accused,
suppressed by
prosecution.
is
compelling'as
obligation
govern'
its
at
Ohiri,
Fed.Appx.
all;
interest,
therefore,
and whose
in a
(10th Cir.2005).
.
Moreover, the
prosecution
criminal
it
is not that
shall win
case,
justice
a
materiality
touchstone of
but that
a “reasonable
shall be done.
result,
probability” of a different
and the
States,
Berger
v. United
U.S.
adjective
important.
The question is not
S.Ct.
of the to fur- not serve alone would
DNA evidence
justice. As
the ends
ther
the.
S.E.2d
observed,
reversal]
“[a
Supreme Court
Virginia ex rel. Belinda
of West
STATE
normally
in outlook
a difference
reflects
BIAFORE,
Virginia
Chair of the West
personnel comprising differ-
found between
Committee;
Ste
Democratic
and
State
However,
higher
reversal
courts.
ent
Davis,
Thomp
phen
Klopp,
Linda
David
thereby
proof
justice is
court
Evans,
son,
Phillips, Stephen
Linda
443,
Allen,
Brown v.
better done.”
Blevins,
of the
Members
West
Patricia
(1953) (Jack-
540,
397,
97 L.Ed.
73 S.Ct.
Virginia
Commi
Democratic Executive
other
son,
concurring),
J.,
overruled
District,
t
Senatorial
Ninth
tee
Sain,
U.S.
grounds by Townsend
Petitioners
(1963). As
vation: Virginia. West improper methods calculated refrain wrongful it is to produce conviction 19, 2016. Jan. Submitted bring legitimate about every means use 22, 2016. Decided Jan. just There one.” judicial system for simply in our no room gamesmanship. The evidentiary''
unethical Zain, corpus proceed- Trooper evidence in crim any subsequent had also falsified 'habeas corpus only ing. issue prosecutions. the West inal See the Matter of proceeding would be the evidence whether Serology Virginia Laboratory, Police Crime prior presented to trial II"), ("Zain 191 W.Va. 445 S.E.2d Division guilty plea, independent entry (1994). investigation of a third Zain, presented by forensic have Serology Division of the Crime Lab occurred. support the verdict or sufficient to again The issue once was whether State serolo- plea. Zain, other than falsified evidence gists, Ibred Unfortunately, inquiry did not end with Zain prosecutions. Re Matter In the See .criminal of: with anoth- I. In er’question this Court was confronted Investigation Police Lab the State Crime newed surrounding the State’s Crime Lab. III”), ("Zain Serology oratory, W.Va. time, Division following investigation This ensued another serologists, than 633 S.E.2d other the- concern whether