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Page 1: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

IN THE CIRCUIT COURT OF HARRISON COUNTY WEST VIRGINIA

ORVILLE M HUTTON

Petitioner

v Civil Action No 13-P-119-3 JAMES A MATISH Judge

State Of West Virginia-Attorney General PATRICK MORRISEY Harrison County Prosecuting Attorney RACHEL ROMAN01 United States Attorney General WILLIAM J IHLENFELD II - United States Attorney For The Northern District Of West Virginia UNITED STATES ATTORNEY GENERAL DEPARTMENT OF HOMELAND SECURITY ICE YORK COUNTY PENNSYLVANIA

Respondents

STATE OF WEST VIRGINIA

v Felony Case No 10-F-34-2 (underlying matter before Thomas A Bedell Judge)

ORVILLE M HUTTON AKA MYKAL G RASYTH

Defendant

FINAL ORDER

SUSTAINING STATES OBJECtiON AND GRANTING STATES REQUEST AS TO AFFIDAVITS FILED ON BEHALF OF PETITIONERDEFENDANT

REFUSING REQUESTED RELIEF AND DENYING ORVILLE M HUTTONS PETITION FOR WRIT OF ERROR CORAM NOBIS ON FURTHER HEARING

At the time ofOrvilJe M Huttons initiaJpro se filing of his Pelition For Writ OJ Error Coram Nobis Joseph F Shaffer Esq was Prosecuting Attorney for Harrison County West Virginia and named as a party Respondent herein Subsequently Mr Shaffer resigned from such office and was replaced on an interim basis by Susan M Morris Esq who served as Prosecuting Attorney for Harrison County until the permanent appointment of Rachel Romano Esq who after being duly SWOrn to such office presently continues to serve as Prosecuting Attorney for Harrison County In keeping with Rule 2S(d) of the West Virginia Rules oCivil Procedure Ms Romano is automatically substituted as a party Respondent

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I

2

Recent Procedural History and Related Pleadings

This matter was returned to this Court upon limited remand from the Supreme

Court of Appeals of West Virginia for further proceedings consistent with its Opinion as

to this Courts application of the therein adopted four-part test required for raising a

legal error in a Petition for a Writ of Error Coram Nobis and obtaining relief on a claim

based thereon in keeping with United States v Akinsade 686 F3d 248 252 (4th Cir

2012) and Syl Pt 5 of State v Hutton 235 Wva 724776 SE2d 621 (2015)

Upon its return on such limited remand further filings and proceedings were

undertaken so that the parties herein could supplement their evidence herein in

accordance with our Supreme Courts Opinion2

By letter dated July 7 2015 and filed herein on September 17 2015

PetitionerDefendant Orville M Hutton aka Mykal G Rasyth (hereinafter referred to as

PetitionerDefendant) advised this Court of his request for assistance of counsel In

ke~ping with the Supreme Courts decision (See n 1 supra) filed on June 16 2015 By

Order Appointing Counsel caused to be entered herein on September 17 2015 Wiley

Newbold Esq was appointed to represent him

By this Courts Order Scheduling Evidentiary Hearing caused to be entered

herein on October 29 2015 this matter was set for an Evidentiary Hearing on

An evident~ary hearing herein on PetitionerDefendants ineffective assistance of counsel claim as to Thomas G Dyer Esq (his court-appointed legal counsel at the time of his pJea and sentencing) had been previousJy conducted herein on April 9-10 2014 At such hearing he appeared via telephone and proceeded pro se by caJling his sister Mykhel YisraeJ Esq (his immigration attorney at the time) and his wife Qeturah Rasyth as witnesses who testified on his behalf via telephone Additionally Courteney Craig Esq (his post-sentencing subsequent legal counsel) was caned as a witness to testify on his behalf via telephone Mr Dyer was not called to testify during this hearing by either PetitionerlDefendant or the State

By Amended Order Denying Writ 0Error Coram Nobis previously caused to be entered herein on April 28 2014 this Court denied his Emergency Writ 0 Error Coram Nobis PetitionerlDefendants Supreme Court OJAppeals aWest Virginia Notice OfAppeal was then filed herein on June 27 2014

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December 16 2015 with his participation via video conferencing from the Pike County

Correctional Facility Lords Valley Pennsylvania

On the appointed date and time this matter came on for such hearing with the

State of West Virginia represented by and through Andrea L Roberts Esq bull Assistant

Prosecuting Attorney in and for Harrison County West Virginia appearing in person

PetitionerDefendant was represented by and through his appointed legal counsel Mr

Newbold appearing in person with the PetitionerDefendant appearing not in person

but by video conferencing

Upon this Courts bringing such hearing to order and establishing

PetitionerDefendants acceptable participation therein via video conferencing Mr

Newbold was afforded the opportunity to present PetitionerDefendants case-in-chief

Witnesses were then called sworn and so testified to-wit Orville Hutton (via

video conferencing) Michael BlumenthaJ3 (via telephone) Thomas G Dyer Esq4 and

A Courteney Craig Esq5 Such testimony was then taken along with the introduction of

3 Mr Blumenthal is a visiting professor of law and co-director of the immigration clinic at the West Virginia University College of Law The record further indicates that he along with Valena Beety Esq had previously filed a Notice OfAppearance herein on behalf ofthe West Virginia University College of Law Clinical Law Program as co-counsel to PetitionerDefendant on September 92014 for purposes of his appeal

4 Mr Dyer is a licensed and practicing member of the bar in the State of West Virginia who was PetitionerlDefendants court-appointed legal counsel throughout the underlying criminal proceedings resulting in his conviction in Case No 10-F-34-2

Mr Craig was PetitionerlDefendants retained legal counsel for post-conviction matters essentiaHy to conduct additional research and pursue post-conviction proceedings deemed appropriate

The underlying criminal record demonstrates that Mr Craig filed various pleadings therein to-wit (a) Notice OfAppearance on August 92010 (b) DefendantS Notice OJ Intent To Appeal on August 9 2010 (c) Motion For Post-Conviction Bond Or In The Alternative Home Confinement on August 27 2010 Cd) Defendants Motion To Reconsider Sentence on September 162010 (e) Motion For A New Trial Based On Newly Discovered Evidence on September 16 2010 and (f) Motion To Withdraw As Counsel OfRecord on December 9 20] O

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6

Defendants Exhibits 1 through 13 which were duly made a matter of evidentiary record

hereins

Further the State of West Virginia cross-examined such witnesses along with

introducing States Exhibits 1 through 5 which were duly admitted filed and made a

matter of evidentiary record herein7

PetitionerlDefendants Exhibits marked and admitted (also see Hearing Transcript p 3) are to-wit

1 Copy of US Department of Homeland Security Warrant for Arrest of Alien in File No A031 279343 and dated May 28 2013 therein stating that Orville M Hutton AKA Rasyth Mykal G is in violation of immigration laws and liable to being taken into custody pursuant to authorization under the Immigration and Nationality Act

2 One (I) page copy ofState ofWest Virginia v Mykal G Rosyth aarrison County Magistrate Court Case No 09M-159 Criminal Complaint dated January 292009 andmiddottwo (2) page copy ofreJated docket report printout sheets dated November 192015 concerning domestic battery

3 Five (5) page cppy of Harrison County Circuit Clerks Office filing docket sheets for State of West Virginia v Orville Hutton AlKlA Myka G Rosyth Case No 1O-F-34

4 One (1) page copy of Notice 10 Respondent as to a Notice to Appear relating to PetitionerlDefendants removal proceedings (See Exhibit 1 supra and Exhibit 6 infra)

5 One (1) page copy of US Department of Homeland Security Notice of Custody Determination in File No A031 279 343 and dated May 28 2013 therein informing PetitionerlDefendant of his being detained in the custody of the Department of Homeland Security pending final determination and his request for a redetermination ofsuch custody decision

6 One (1) page copy of US Department of Homeland Security Notice to Appear in File No A031 279 343 and dated May 28 2013 stating DefendantIPetitioners removability and such Departments allegations against him

7 Three (3) page copy of US Department of JusticeExecutive Office for Immigration Review Decision ofthe Board ofImmigration Appeals File No A031 279 343 - York PA and dated February 28 2014 In re ORVILLE M HUTTON aka Mykal G Rasyth removal proceedings dismissal of appeal and denial of motion to remand

8 Four (4) page copy of General Docket Third Circuit Court ofAppeals Docket 14-1698 in ORVILLE M HUTION aka MYKAL G RASYTH (197904) v ATTORNEY GENERAL UNITED STATES OFAMERICA for appeal from Board ofImmigration

9 One (1) page copy of US Department of JusticeExecutive Office for Immigration Review Decision of the Board of Immigration Appeals File No A031 279343 - York PA and dated April 22 2014 In re ORVILLE M HUlTON stay of removal

10 CD-R of 1-27~09 hearing in Knox v Rasyth FamHy Court ofHarrison County West Virginia Case No 09-DV-38

II Four (4) page copy of PUBLIC DEFENDER SERVICES Defense Counsel Voucher Information Page and ITEMIZED STATEMENT OF LEGAL SERVICES PAGE ONE ADDITIONAL PAGE and ITEMIZED STAlEMENT OF EXPENSES PAGE ONE of Thomas G Dyer for Client Orville Hutton in Case Number 10-F-34-2 dated July 122010

12 One (1) page copy ofp 5 of DefendalltlPetitioners Pre-Sentence Investigation Report filed in State ofWest Virginia v Orville Hutton AlKiA Myka G Rosyth Case No 10-F-34

13 Twenty-nine (29) pages of Von age Account Information and Advanced Activity Search for cellular phone service 1-(916)-473-7914 from January 12009 to February 12009

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7

Proposed Findings of Fact and Conclusions of Law were ordered to be

respectively prepared and filed on behalf of PetitionerDefendant and the State of West

Virginia (See this Courts Order Following Hearing entered herein on January 82016

as prepared by Mr Newbold and approved by Ms Roberts)

On January 11 2016 this Court caused to be entered its Order Sua Sponte

Directing Court Reporter To Prepare And Deliver To This Court A Certified Transcript Of

Evidentiary Proceedings Conducted Herein On December 16 2015 On Remand From

The Supreme Court Of Appeals Of West Virginia Therein the Official Court Reporter

was directed to prepare a certified transcript accurately reflecting all matiers placed on

the record herein at such hearing and deliver same to it in a timely manner

PetitionerDefendants Findings Of Fact And Conclusions Of Law were filed

herein on February 11 2016 Therein inter alia he ultimately proposes that this Court

should order his conviction vacated his plea withdrawn and the original indictment

restored to the docket (See Findings and Conclusions p 46)

State ofWest Virginias Exhibits marked and admitted (also see Hearing Transcript p 4) are to-wit 1 Nine (9) page copy of documents pertaining to Harrison County Magistrate COUl1 Case No

09D-40 I Family Court Civil Action No 09-DV -38-4 In the malter ofTamara Michele Knox Petitioner and Mykal Rasyth Respondent including Civil Case Information Stateme11t File Transfer Receipt DomesNc Violence Case Hisoryand Domestic Violence Petition

2 Twenty-two (22) page copy of an unofficial transcript of hearing before Harrison County Family Court on January 27 2009 in Family Court Civil Action No 09-DV-38-4 In the matter oTamara Michele Knox Petitio11er and Mykal Rasyth Respondent

3 Twenty-one (21) page copy of Emergency Room records concerning Tamara Knox on January 212009 under UHC certification letter of Amy R Jordan duly authorized custodian ofMedical Records of United Hospital Center Clarksburg West Virginia dated March 3 2009 and duly notarized

4 Thirty-one (31) page copy of an unofficial transcript of a tape recorded statement of Tamara Knox given to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 3 2009 at the Harrison County Prosecutings Office

S Seventeen (17) page copy ofan unofficial transcript of a tape recorded statement of the victim in the underlying criminal matter Tamara Knox given as a follow-up statement to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 11 2009 at the Harrison County Prosecutings Office

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Respondents Proposed Findings Of Fact And Conclusions Of Law Upon Petition

For Writ Of Error Coram Nobis were filed herein on March 142016 Therein inter alia

the State summarizes that PetitionerDefendant is not entitled to a Writ of Error Coram

Nobis and accordingly his Petition should be denied based upon the provided analysis

therein upon taking into consideration the requirements set forth in the adopted fourshy

part test necessary for raising such legal error as well as for obtaining his requested

relief as presented in his proffered findings and conclusions

Affidavits on Behalf of Orville M Hutton

Under cover letter dated March 31 2016 and filed herein on April 6 2016

PetitionerDefendants legal counsel additionally filed sworn affidavits to-wit

1 Sworn Affidavit of Michael C Blumenthal dated and notarized on February

8 2016 Therein such affiant states his wish to clarify one element of [his] testimony

due to what he describes as having inadvertently created some confusion with his

testimony as contained in page 83 of the official Transcript from the December 16

2015 hearing

2 Sworn Affidavit Of Mykhel Yisrael notarized on March 30 2016 The halfshy

sister of PetitionerDefendant therein swears and affirms inter alia that after reviewing

the official hearing transcript she disputes specific facts testified to at the December 16

2015 hearing by Mr Dyer

In response the State filed its Respondents Objection To Affidavits Of Myhkhel

Ysrael [sic] And Michael Blumenthal Filed By Petitioner on April 21 2016 Therein it

asserts inter alia that to-wit (a) Mykhel Yisreal was not called to testify at hearings

held in this matter in April of 2014 or December of 2015 and that PetitionerDefendant

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should have called as a witness (b) Michael Blumenthal should have been recalled as a

witness at the time of the December 16th hearing to clarify his testimony stated on

direct ~xamination and (c) filing such Affidavits prevents it from having the opportunity

to cross-examine such individuals on this new testimony Accordingly the State

requests these Affidavits to not be considered by this Court in its further deliberations

and rulings herein

Courtesy copies of such Affidavits and Objection were provided to this Court

pursuant to Rule 2201 of the West Virginia Trial Court Rules However Mr Newbold

unilaterally filed these sworn affidavits on PetitionerDefendants behalf over three

months after the conclusion of the December 16 2015 evidentiary hearing and well

subsequent to the parties respective submissions of their proposed Findings and

Conclusions There was no Scheduling Order in place for any further evidentiary

submissions or other related pleadings by the parties Furthermore Mr Newbold failed

to move this Court on PetitionerDefendants behalf for leave to file these affidavits at

the time they were submitted

Determinations

This Court has followed the directive of the Supreme Court of Appeals of West

Virginia delivered in its Opinion released pursuant to Rule 22 of the Rules of Appelate

Procedure West Virginia Supreme Court of Appeals (See Hutton 235 WVa at 743

776 SE2d at 639) Upon such jurisdictional return pursuant to Rule 26(a) of such

Rules of Appellate Procedure and expiration of the Supreme Court of Appeals of West

Virginias appropriately issued mandate this Court to-wit (a) conducted a further

evidentiary hearing for taking additional testimony receiving evidentiary exhibits and

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entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

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8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

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the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

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II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

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advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

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citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 2: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

2

Recent Procedural History and Related Pleadings

This matter was returned to this Court upon limited remand from the Supreme

Court of Appeals of West Virginia for further proceedings consistent with its Opinion as

to this Courts application of the therein adopted four-part test required for raising a

legal error in a Petition for a Writ of Error Coram Nobis and obtaining relief on a claim

based thereon in keeping with United States v Akinsade 686 F3d 248 252 (4th Cir

2012) and Syl Pt 5 of State v Hutton 235 Wva 724776 SE2d 621 (2015)

Upon its return on such limited remand further filings and proceedings were

undertaken so that the parties herein could supplement their evidence herein in

accordance with our Supreme Courts Opinion2

By letter dated July 7 2015 and filed herein on September 17 2015

PetitionerDefendant Orville M Hutton aka Mykal G Rasyth (hereinafter referred to as

PetitionerDefendant) advised this Court of his request for assistance of counsel In

ke~ping with the Supreme Courts decision (See n 1 supra) filed on June 16 2015 By

Order Appointing Counsel caused to be entered herein on September 17 2015 Wiley

Newbold Esq was appointed to represent him

By this Courts Order Scheduling Evidentiary Hearing caused to be entered

herein on October 29 2015 this matter was set for an Evidentiary Hearing on

An evident~ary hearing herein on PetitionerDefendants ineffective assistance of counsel claim as to Thomas G Dyer Esq (his court-appointed legal counsel at the time of his pJea and sentencing) had been previousJy conducted herein on April 9-10 2014 At such hearing he appeared via telephone and proceeded pro se by caJling his sister Mykhel YisraeJ Esq (his immigration attorney at the time) and his wife Qeturah Rasyth as witnesses who testified on his behalf via telephone Additionally Courteney Craig Esq (his post-sentencing subsequent legal counsel) was caned as a witness to testify on his behalf via telephone Mr Dyer was not called to testify during this hearing by either PetitionerlDefendant or the State

By Amended Order Denying Writ 0Error Coram Nobis previously caused to be entered herein on April 28 2014 this Court denied his Emergency Writ 0 Error Coram Nobis PetitionerlDefendants Supreme Court OJAppeals aWest Virginia Notice OfAppeal was then filed herein on June 27 2014

Page 2 of32

December 16 2015 with his participation via video conferencing from the Pike County

Correctional Facility Lords Valley Pennsylvania

On the appointed date and time this matter came on for such hearing with the

State of West Virginia represented by and through Andrea L Roberts Esq bull Assistant

Prosecuting Attorney in and for Harrison County West Virginia appearing in person

PetitionerDefendant was represented by and through his appointed legal counsel Mr

Newbold appearing in person with the PetitionerDefendant appearing not in person

but by video conferencing

Upon this Courts bringing such hearing to order and establishing

PetitionerDefendants acceptable participation therein via video conferencing Mr

Newbold was afforded the opportunity to present PetitionerDefendants case-in-chief

Witnesses were then called sworn and so testified to-wit Orville Hutton (via

video conferencing) Michael BlumenthaJ3 (via telephone) Thomas G Dyer Esq4 and

A Courteney Craig Esq5 Such testimony was then taken along with the introduction of

3 Mr Blumenthal is a visiting professor of law and co-director of the immigration clinic at the West Virginia University College of Law The record further indicates that he along with Valena Beety Esq had previously filed a Notice OfAppearance herein on behalf ofthe West Virginia University College of Law Clinical Law Program as co-counsel to PetitionerDefendant on September 92014 for purposes of his appeal

4 Mr Dyer is a licensed and practicing member of the bar in the State of West Virginia who was PetitionerlDefendants court-appointed legal counsel throughout the underlying criminal proceedings resulting in his conviction in Case No 10-F-34-2

Mr Craig was PetitionerlDefendants retained legal counsel for post-conviction matters essentiaHy to conduct additional research and pursue post-conviction proceedings deemed appropriate

The underlying criminal record demonstrates that Mr Craig filed various pleadings therein to-wit (a) Notice OfAppearance on August 92010 (b) DefendantS Notice OJ Intent To Appeal on August 9 2010 (c) Motion For Post-Conviction Bond Or In The Alternative Home Confinement on August 27 2010 Cd) Defendants Motion To Reconsider Sentence on September 162010 (e) Motion For A New Trial Based On Newly Discovered Evidence on September 16 2010 and (f) Motion To Withdraw As Counsel OfRecord on December 9 20] O

Page 3 of32

6

Defendants Exhibits 1 through 13 which were duly made a matter of evidentiary record

hereins

Further the State of West Virginia cross-examined such witnesses along with

introducing States Exhibits 1 through 5 which were duly admitted filed and made a

matter of evidentiary record herein7

PetitionerlDefendants Exhibits marked and admitted (also see Hearing Transcript p 3) are to-wit

1 Copy of US Department of Homeland Security Warrant for Arrest of Alien in File No A031 279343 and dated May 28 2013 therein stating that Orville M Hutton AKA Rasyth Mykal G is in violation of immigration laws and liable to being taken into custody pursuant to authorization under the Immigration and Nationality Act

2 One (I) page copy ofState ofWest Virginia v Mykal G Rosyth aarrison County Magistrate Court Case No 09M-159 Criminal Complaint dated January 292009 andmiddottwo (2) page copy ofreJated docket report printout sheets dated November 192015 concerning domestic battery

3 Five (5) page cppy of Harrison County Circuit Clerks Office filing docket sheets for State of West Virginia v Orville Hutton AlKlA Myka G Rosyth Case No 1O-F-34

4 One (1) page copy of Notice 10 Respondent as to a Notice to Appear relating to PetitionerlDefendants removal proceedings (See Exhibit 1 supra and Exhibit 6 infra)

5 One (1) page copy of US Department of Homeland Security Notice of Custody Determination in File No A031 279 343 and dated May 28 2013 therein informing PetitionerlDefendant of his being detained in the custody of the Department of Homeland Security pending final determination and his request for a redetermination ofsuch custody decision

6 One (1) page copy of US Department of Homeland Security Notice to Appear in File No A031 279 343 and dated May 28 2013 stating DefendantIPetitioners removability and such Departments allegations against him

7 Three (3) page copy of US Department of JusticeExecutive Office for Immigration Review Decision ofthe Board ofImmigration Appeals File No A031 279 343 - York PA and dated February 28 2014 In re ORVILLE M HUTTON aka Mykal G Rasyth removal proceedings dismissal of appeal and denial of motion to remand

8 Four (4) page copy of General Docket Third Circuit Court ofAppeals Docket 14-1698 in ORVILLE M HUTION aka MYKAL G RASYTH (197904) v ATTORNEY GENERAL UNITED STATES OFAMERICA for appeal from Board ofImmigration

9 One (1) page copy of US Department of JusticeExecutive Office for Immigration Review Decision of the Board of Immigration Appeals File No A031 279343 - York PA and dated April 22 2014 In re ORVILLE M HUlTON stay of removal

10 CD-R of 1-27~09 hearing in Knox v Rasyth FamHy Court ofHarrison County West Virginia Case No 09-DV-38

II Four (4) page copy of PUBLIC DEFENDER SERVICES Defense Counsel Voucher Information Page and ITEMIZED STATEMENT OF LEGAL SERVICES PAGE ONE ADDITIONAL PAGE and ITEMIZED STAlEMENT OF EXPENSES PAGE ONE of Thomas G Dyer for Client Orville Hutton in Case Number 10-F-34-2 dated July 122010

12 One (1) page copy ofp 5 of DefendalltlPetitioners Pre-Sentence Investigation Report filed in State ofWest Virginia v Orville Hutton AlKiA Myka G Rosyth Case No 10-F-34

13 Twenty-nine (29) pages of Von age Account Information and Advanced Activity Search for cellular phone service 1-(916)-473-7914 from January 12009 to February 12009

Page4of32

7

Proposed Findings of Fact and Conclusions of Law were ordered to be

respectively prepared and filed on behalf of PetitionerDefendant and the State of West

Virginia (See this Courts Order Following Hearing entered herein on January 82016

as prepared by Mr Newbold and approved by Ms Roberts)

On January 11 2016 this Court caused to be entered its Order Sua Sponte

Directing Court Reporter To Prepare And Deliver To This Court A Certified Transcript Of

Evidentiary Proceedings Conducted Herein On December 16 2015 On Remand From

The Supreme Court Of Appeals Of West Virginia Therein the Official Court Reporter

was directed to prepare a certified transcript accurately reflecting all matiers placed on

the record herein at such hearing and deliver same to it in a timely manner

PetitionerDefendants Findings Of Fact And Conclusions Of Law were filed

herein on February 11 2016 Therein inter alia he ultimately proposes that this Court

should order his conviction vacated his plea withdrawn and the original indictment

restored to the docket (See Findings and Conclusions p 46)

State ofWest Virginias Exhibits marked and admitted (also see Hearing Transcript p 4) are to-wit 1 Nine (9) page copy of documents pertaining to Harrison County Magistrate COUl1 Case No

09D-40 I Family Court Civil Action No 09-DV -38-4 In the malter ofTamara Michele Knox Petitioner and Mykal Rasyth Respondent including Civil Case Information Stateme11t File Transfer Receipt DomesNc Violence Case Hisoryand Domestic Violence Petition

2 Twenty-two (22) page copy of an unofficial transcript of hearing before Harrison County Family Court on January 27 2009 in Family Court Civil Action No 09-DV-38-4 In the matter oTamara Michele Knox Petitio11er and Mykal Rasyth Respondent

3 Twenty-one (21) page copy of Emergency Room records concerning Tamara Knox on January 212009 under UHC certification letter of Amy R Jordan duly authorized custodian ofMedical Records of United Hospital Center Clarksburg West Virginia dated March 3 2009 and duly notarized

4 Thirty-one (31) page copy of an unofficial transcript of a tape recorded statement of Tamara Knox given to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 3 2009 at the Harrison County Prosecutings Office

S Seventeen (17) page copy ofan unofficial transcript of a tape recorded statement of the victim in the underlying criminal matter Tamara Knox given as a follow-up statement to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 11 2009 at the Harrison County Prosecutings Office

Page 5 of32

Respondents Proposed Findings Of Fact And Conclusions Of Law Upon Petition

For Writ Of Error Coram Nobis were filed herein on March 142016 Therein inter alia

the State summarizes that PetitionerDefendant is not entitled to a Writ of Error Coram

Nobis and accordingly his Petition should be denied based upon the provided analysis

therein upon taking into consideration the requirements set forth in the adopted fourshy

part test necessary for raising such legal error as well as for obtaining his requested

relief as presented in his proffered findings and conclusions

Affidavits on Behalf of Orville M Hutton

Under cover letter dated March 31 2016 and filed herein on April 6 2016

PetitionerDefendants legal counsel additionally filed sworn affidavits to-wit

1 Sworn Affidavit of Michael C Blumenthal dated and notarized on February

8 2016 Therein such affiant states his wish to clarify one element of [his] testimony

due to what he describes as having inadvertently created some confusion with his

testimony as contained in page 83 of the official Transcript from the December 16

2015 hearing

2 Sworn Affidavit Of Mykhel Yisrael notarized on March 30 2016 The halfshy

sister of PetitionerDefendant therein swears and affirms inter alia that after reviewing

the official hearing transcript she disputes specific facts testified to at the December 16

2015 hearing by Mr Dyer

In response the State filed its Respondents Objection To Affidavits Of Myhkhel

Ysrael [sic] And Michael Blumenthal Filed By Petitioner on April 21 2016 Therein it

asserts inter alia that to-wit (a) Mykhel Yisreal was not called to testify at hearings

held in this matter in April of 2014 or December of 2015 and that PetitionerDefendant

Page 6 of32

should have called as a witness (b) Michael Blumenthal should have been recalled as a

witness at the time of the December 16th hearing to clarify his testimony stated on

direct ~xamination and (c) filing such Affidavits prevents it from having the opportunity

to cross-examine such individuals on this new testimony Accordingly the State

requests these Affidavits to not be considered by this Court in its further deliberations

and rulings herein

Courtesy copies of such Affidavits and Objection were provided to this Court

pursuant to Rule 2201 of the West Virginia Trial Court Rules However Mr Newbold

unilaterally filed these sworn affidavits on PetitionerDefendants behalf over three

months after the conclusion of the December 16 2015 evidentiary hearing and well

subsequent to the parties respective submissions of their proposed Findings and

Conclusions There was no Scheduling Order in place for any further evidentiary

submissions or other related pleadings by the parties Furthermore Mr Newbold failed

to move this Court on PetitionerDefendants behalf for leave to file these affidavits at

the time they were submitted

Determinations

This Court has followed the directive of the Supreme Court of Appeals of West

Virginia delivered in its Opinion released pursuant to Rule 22 of the Rules of Appelate

Procedure West Virginia Supreme Court of Appeals (See Hutton 235 WVa at 743

776 SE2d at 639) Upon such jurisdictional return pursuant to Rule 26(a) of such

Rules of Appellate Procedure and expiration of the Supreme Court of Appeals of West

Virginias appropriately issued mandate this Court to-wit (a) conducted a further

evidentiary hearing for taking additional testimony receiving evidentiary exhibits and

Page 7 of32

entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

Page 8 of32

8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 3: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

December 16 2015 with his participation via video conferencing from the Pike County

Correctional Facility Lords Valley Pennsylvania

On the appointed date and time this matter came on for such hearing with the

State of West Virginia represented by and through Andrea L Roberts Esq bull Assistant

Prosecuting Attorney in and for Harrison County West Virginia appearing in person

PetitionerDefendant was represented by and through his appointed legal counsel Mr

Newbold appearing in person with the PetitionerDefendant appearing not in person

but by video conferencing

Upon this Courts bringing such hearing to order and establishing

PetitionerDefendants acceptable participation therein via video conferencing Mr

Newbold was afforded the opportunity to present PetitionerDefendants case-in-chief

Witnesses were then called sworn and so testified to-wit Orville Hutton (via

video conferencing) Michael BlumenthaJ3 (via telephone) Thomas G Dyer Esq4 and

A Courteney Craig Esq5 Such testimony was then taken along with the introduction of

3 Mr Blumenthal is a visiting professor of law and co-director of the immigration clinic at the West Virginia University College of Law The record further indicates that he along with Valena Beety Esq had previously filed a Notice OfAppearance herein on behalf ofthe West Virginia University College of Law Clinical Law Program as co-counsel to PetitionerDefendant on September 92014 for purposes of his appeal

4 Mr Dyer is a licensed and practicing member of the bar in the State of West Virginia who was PetitionerlDefendants court-appointed legal counsel throughout the underlying criminal proceedings resulting in his conviction in Case No 10-F-34-2

Mr Craig was PetitionerlDefendants retained legal counsel for post-conviction matters essentiaHy to conduct additional research and pursue post-conviction proceedings deemed appropriate

The underlying criminal record demonstrates that Mr Craig filed various pleadings therein to-wit (a) Notice OfAppearance on August 92010 (b) DefendantS Notice OJ Intent To Appeal on August 9 2010 (c) Motion For Post-Conviction Bond Or In The Alternative Home Confinement on August 27 2010 Cd) Defendants Motion To Reconsider Sentence on September 162010 (e) Motion For A New Trial Based On Newly Discovered Evidence on September 16 2010 and (f) Motion To Withdraw As Counsel OfRecord on December 9 20] O

Page 3 of32

6

Defendants Exhibits 1 through 13 which were duly made a matter of evidentiary record

hereins

Further the State of West Virginia cross-examined such witnesses along with

introducing States Exhibits 1 through 5 which were duly admitted filed and made a

matter of evidentiary record herein7

PetitionerlDefendants Exhibits marked and admitted (also see Hearing Transcript p 3) are to-wit

1 Copy of US Department of Homeland Security Warrant for Arrest of Alien in File No A031 279343 and dated May 28 2013 therein stating that Orville M Hutton AKA Rasyth Mykal G is in violation of immigration laws and liable to being taken into custody pursuant to authorization under the Immigration and Nationality Act

2 One (I) page copy ofState ofWest Virginia v Mykal G Rosyth aarrison County Magistrate Court Case No 09M-159 Criminal Complaint dated January 292009 andmiddottwo (2) page copy ofreJated docket report printout sheets dated November 192015 concerning domestic battery

3 Five (5) page cppy of Harrison County Circuit Clerks Office filing docket sheets for State of West Virginia v Orville Hutton AlKlA Myka G Rosyth Case No 1O-F-34

4 One (1) page copy of Notice 10 Respondent as to a Notice to Appear relating to PetitionerlDefendants removal proceedings (See Exhibit 1 supra and Exhibit 6 infra)

5 One (1) page copy of US Department of Homeland Security Notice of Custody Determination in File No A031 279 343 and dated May 28 2013 therein informing PetitionerlDefendant of his being detained in the custody of the Department of Homeland Security pending final determination and his request for a redetermination ofsuch custody decision

6 One (1) page copy of US Department of Homeland Security Notice to Appear in File No A031 279 343 and dated May 28 2013 stating DefendantIPetitioners removability and such Departments allegations against him

7 Three (3) page copy of US Department of JusticeExecutive Office for Immigration Review Decision ofthe Board ofImmigration Appeals File No A031 279 343 - York PA and dated February 28 2014 In re ORVILLE M HUTTON aka Mykal G Rasyth removal proceedings dismissal of appeal and denial of motion to remand

8 Four (4) page copy of General Docket Third Circuit Court ofAppeals Docket 14-1698 in ORVILLE M HUTION aka MYKAL G RASYTH (197904) v ATTORNEY GENERAL UNITED STATES OFAMERICA for appeal from Board ofImmigration

9 One (1) page copy of US Department of JusticeExecutive Office for Immigration Review Decision of the Board of Immigration Appeals File No A031 279343 - York PA and dated April 22 2014 In re ORVILLE M HUlTON stay of removal

10 CD-R of 1-27~09 hearing in Knox v Rasyth FamHy Court ofHarrison County West Virginia Case No 09-DV-38

II Four (4) page copy of PUBLIC DEFENDER SERVICES Defense Counsel Voucher Information Page and ITEMIZED STATEMENT OF LEGAL SERVICES PAGE ONE ADDITIONAL PAGE and ITEMIZED STAlEMENT OF EXPENSES PAGE ONE of Thomas G Dyer for Client Orville Hutton in Case Number 10-F-34-2 dated July 122010

12 One (1) page copy ofp 5 of DefendalltlPetitioners Pre-Sentence Investigation Report filed in State ofWest Virginia v Orville Hutton AlKiA Myka G Rosyth Case No 10-F-34

13 Twenty-nine (29) pages of Von age Account Information and Advanced Activity Search for cellular phone service 1-(916)-473-7914 from January 12009 to February 12009

Page4of32

7

Proposed Findings of Fact and Conclusions of Law were ordered to be

respectively prepared and filed on behalf of PetitionerDefendant and the State of West

Virginia (See this Courts Order Following Hearing entered herein on January 82016

as prepared by Mr Newbold and approved by Ms Roberts)

On January 11 2016 this Court caused to be entered its Order Sua Sponte

Directing Court Reporter To Prepare And Deliver To This Court A Certified Transcript Of

Evidentiary Proceedings Conducted Herein On December 16 2015 On Remand From

The Supreme Court Of Appeals Of West Virginia Therein the Official Court Reporter

was directed to prepare a certified transcript accurately reflecting all matiers placed on

the record herein at such hearing and deliver same to it in a timely manner

PetitionerDefendants Findings Of Fact And Conclusions Of Law were filed

herein on February 11 2016 Therein inter alia he ultimately proposes that this Court

should order his conviction vacated his plea withdrawn and the original indictment

restored to the docket (See Findings and Conclusions p 46)

State ofWest Virginias Exhibits marked and admitted (also see Hearing Transcript p 4) are to-wit 1 Nine (9) page copy of documents pertaining to Harrison County Magistrate COUl1 Case No

09D-40 I Family Court Civil Action No 09-DV -38-4 In the malter ofTamara Michele Knox Petitioner and Mykal Rasyth Respondent including Civil Case Information Stateme11t File Transfer Receipt DomesNc Violence Case Hisoryand Domestic Violence Petition

2 Twenty-two (22) page copy of an unofficial transcript of hearing before Harrison County Family Court on January 27 2009 in Family Court Civil Action No 09-DV-38-4 In the matter oTamara Michele Knox Petitio11er and Mykal Rasyth Respondent

3 Twenty-one (21) page copy of Emergency Room records concerning Tamara Knox on January 212009 under UHC certification letter of Amy R Jordan duly authorized custodian ofMedical Records of United Hospital Center Clarksburg West Virginia dated March 3 2009 and duly notarized

4 Thirty-one (31) page copy of an unofficial transcript of a tape recorded statement of Tamara Knox given to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 3 2009 at the Harrison County Prosecutings Office

S Seventeen (17) page copy ofan unofficial transcript of a tape recorded statement of the victim in the underlying criminal matter Tamara Knox given as a follow-up statement to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 11 2009 at the Harrison County Prosecutings Office

Page 5 of32

Respondents Proposed Findings Of Fact And Conclusions Of Law Upon Petition

For Writ Of Error Coram Nobis were filed herein on March 142016 Therein inter alia

the State summarizes that PetitionerDefendant is not entitled to a Writ of Error Coram

Nobis and accordingly his Petition should be denied based upon the provided analysis

therein upon taking into consideration the requirements set forth in the adopted fourshy

part test necessary for raising such legal error as well as for obtaining his requested

relief as presented in his proffered findings and conclusions

Affidavits on Behalf of Orville M Hutton

Under cover letter dated March 31 2016 and filed herein on April 6 2016

PetitionerDefendants legal counsel additionally filed sworn affidavits to-wit

1 Sworn Affidavit of Michael C Blumenthal dated and notarized on February

8 2016 Therein such affiant states his wish to clarify one element of [his] testimony

due to what he describes as having inadvertently created some confusion with his

testimony as contained in page 83 of the official Transcript from the December 16

2015 hearing

2 Sworn Affidavit Of Mykhel Yisrael notarized on March 30 2016 The halfshy

sister of PetitionerDefendant therein swears and affirms inter alia that after reviewing

the official hearing transcript she disputes specific facts testified to at the December 16

2015 hearing by Mr Dyer

In response the State filed its Respondents Objection To Affidavits Of Myhkhel

Ysrael [sic] And Michael Blumenthal Filed By Petitioner on April 21 2016 Therein it

asserts inter alia that to-wit (a) Mykhel Yisreal was not called to testify at hearings

held in this matter in April of 2014 or December of 2015 and that PetitionerDefendant

Page 6 of32

should have called as a witness (b) Michael Blumenthal should have been recalled as a

witness at the time of the December 16th hearing to clarify his testimony stated on

direct ~xamination and (c) filing such Affidavits prevents it from having the opportunity

to cross-examine such individuals on this new testimony Accordingly the State

requests these Affidavits to not be considered by this Court in its further deliberations

and rulings herein

Courtesy copies of such Affidavits and Objection were provided to this Court

pursuant to Rule 2201 of the West Virginia Trial Court Rules However Mr Newbold

unilaterally filed these sworn affidavits on PetitionerDefendants behalf over three

months after the conclusion of the December 16 2015 evidentiary hearing and well

subsequent to the parties respective submissions of their proposed Findings and

Conclusions There was no Scheduling Order in place for any further evidentiary

submissions or other related pleadings by the parties Furthermore Mr Newbold failed

to move this Court on PetitionerDefendants behalf for leave to file these affidavits at

the time they were submitted

Determinations

This Court has followed the directive of the Supreme Court of Appeals of West

Virginia delivered in its Opinion released pursuant to Rule 22 of the Rules of Appelate

Procedure West Virginia Supreme Court of Appeals (See Hutton 235 WVa at 743

776 SE2d at 639) Upon such jurisdictional return pursuant to Rule 26(a) of such

Rules of Appellate Procedure and expiration of the Supreme Court of Appeals of West

Virginias appropriately issued mandate this Court to-wit (a) conducted a further

evidentiary hearing for taking additional testimony receiving evidentiary exhibits and

Page 7 of32

entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

Page 8 of32

8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 4: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

6

Defendants Exhibits 1 through 13 which were duly made a matter of evidentiary record

hereins

Further the State of West Virginia cross-examined such witnesses along with

introducing States Exhibits 1 through 5 which were duly admitted filed and made a

matter of evidentiary record herein7

PetitionerlDefendants Exhibits marked and admitted (also see Hearing Transcript p 3) are to-wit

1 Copy of US Department of Homeland Security Warrant for Arrest of Alien in File No A031 279343 and dated May 28 2013 therein stating that Orville M Hutton AKA Rasyth Mykal G is in violation of immigration laws and liable to being taken into custody pursuant to authorization under the Immigration and Nationality Act

2 One (I) page copy ofState ofWest Virginia v Mykal G Rosyth aarrison County Magistrate Court Case No 09M-159 Criminal Complaint dated January 292009 andmiddottwo (2) page copy ofreJated docket report printout sheets dated November 192015 concerning domestic battery

3 Five (5) page cppy of Harrison County Circuit Clerks Office filing docket sheets for State of West Virginia v Orville Hutton AlKlA Myka G Rosyth Case No 1O-F-34

4 One (1) page copy of Notice 10 Respondent as to a Notice to Appear relating to PetitionerlDefendants removal proceedings (See Exhibit 1 supra and Exhibit 6 infra)

5 One (1) page copy of US Department of Homeland Security Notice of Custody Determination in File No A031 279 343 and dated May 28 2013 therein informing PetitionerlDefendant of his being detained in the custody of the Department of Homeland Security pending final determination and his request for a redetermination ofsuch custody decision

6 One (1) page copy of US Department of Homeland Security Notice to Appear in File No A031 279 343 and dated May 28 2013 stating DefendantIPetitioners removability and such Departments allegations against him

7 Three (3) page copy of US Department of JusticeExecutive Office for Immigration Review Decision ofthe Board ofImmigration Appeals File No A031 279 343 - York PA and dated February 28 2014 In re ORVILLE M HUTTON aka Mykal G Rasyth removal proceedings dismissal of appeal and denial of motion to remand

8 Four (4) page copy of General Docket Third Circuit Court ofAppeals Docket 14-1698 in ORVILLE M HUTION aka MYKAL G RASYTH (197904) v ATTORNEY GENERAL UNITED STATES OFAMERICA for appeal from Board ofImmigration

9 One (1) page copy of US Department of JusticeExecutive Office for Immigration Review Decision of the Board of Immigration Appeals File No A031 279343 - York PA and dated April 22 2014 In re ORVILLE M HUlTON stay of removal

10 CD-R of 1-27~09 hearing in Knox v Rasyth FamHy Court ofHarrison County West Virginia Case No 09-DV-38

II Four (4) page copy of PUBLIC DEFENDER SERVICES Defense Counsel Voucher Information Page and ITEMIZED STATEMENT OF LEGAL SERVICES PAGE ONE ADDITIONAL PAGE and ITEMIZED STAlEMENT OF EXPENSES PAGE ONE of Thomas G Dyer for Client Orville Hutton in Case Number 10-F-34-2 dated July 122010

12 One (1) page copy ofp 5 of DefendalltlPetitioners Pre-Sentence Investigation Report filed in State ofWest Virginia v Orville Hutton AlKiA Myka G Rosyth Case No 10-F-34

13 Twenty-nine (29) pages of Von age Account Information and Advanced Activity Search for cellular phone service 1-(916)-473-7914 from January 12009 to February 12009

Page4of32

7

Proposed Findings of Fact and Conclusions of Law were ordered to be

respectively prepared and filed on behalf of PetitionerDefendant and the State of West

Virginia (See this Courts Order Following Hearing entered herein on January 82016

as prepared by Mr Newbold and approved by Ms Roberts)

On January 11 2016 this Court caused to be entered its Order Sua Sponte

Directing Court Reporter To Prepare And Deliver To This Court A Certified Transcript Of

Evidentiary Proceedings Conducted Herein On December 16 2015 On Remand From

The Supreme Court Of Appeals Of West Virginia Therein the Official Court Reporter

was directed to prepare a certified transcript accurately reflecting all matiers placed on

the record herein at such hearing and deliver same to it in a timely manner

PetitionerDefendants Findings Of Fact And Conclusions Of Law were filed

herein on February 11 2016 Therein inter alia he ultimately proposes that this Court

should order his conviction vacated his plea withdrawn and the original indictment

restored to the docket (See Findings and Conclusions p 46)

State ofWest Virginias Exhibits marked and admitted (also see Hearing Transcript p 4) are to-wit 1 Nine (9) page copy of documents pertaining to Harrison County Magistrate COUl1 Case No

09D-40 I Family Court Civil Action No 09-DV -38-4 In the malter ofTamara Michele Knox Petitioner and Mykal Rasyth Respondent including Civil Case Information Stateme11t File Transfer Receipt DomesNc Violence Case Hisoryand Domestic Violence Petition

2 Twenty-two (22) page copy of an unofficial transcript of hearing before Harrison County Family Court on January 27 2009 in Family Court Civil Action No 09-DV-38-4 In the matter oTamara Michele Knox Petitio11er and Mykal Rasyth Respondent

3 Twenty-one (21) page copy of Emergency Room records concerning Tamara Knox on January 212009 under UHC certification letter of Amy R Jordan duly authorized custodian ofMedical Records of United Hospital Center Clarksburg West Virginia dated March 3 2009 and duly notarized

4 Thirty-one (31) page copy of an unofficial transcript of a tape recorded statement of Tamara Knox given to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 3 2009 at the Harrison County Prosecutings Office

S Seventeen (17) page copy ofan unofficial transcript of a tape recorded statement of the victim in the underlying criminal matter Tamara Knox given as a follow-up statement to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 11 2009 at the Harrison County Prosecutings Office

Page 5 of32

Respondents Proposed Findings Of Fact And Conclusions Of Law Upon Petition

For Writ Of Error Coram Nobis were filed herein on March 142016 Therein inter alia

the State summarizes that PetitionerDefendant is not entitled to a Writ of Error Coram

Nobis and accordingly his Petition should be denied based upon the provided analysis

therein upon taking into consideration the requirements set forth in the adopted fourshy

part test necessary for raising such legal error as well as for obtaining his requested

relief as presented in his proffered findings and conclusions

Affidavits on Behalf of Orville M Hutton

Under cover letter dated March 31 2016 and filed herein on April 6 2016

PetitionerDefendants legal counsel additionally filed sworn affidavits to-wit

1 Sworn Affidavit of Michael C Blumenthal dated and notarized on February

8 2016 Therein such affiant states his wish to clarify one element of [his] testimony

due to what he describes as having inadvertently created some confusion with his

testimony as contained in page 83 of the official Transcript from the December 16

2015 hearing

2 Sworn Affidavit Of Mykhel Yisrael notarized on March 30 2016 The halfshy

sister of PetitionerDefendant therein swears and affirms inter alia that after reviewing

the official hearing transcript she disputes specific facts testified to at the December 16

2015 hearing by Mr Dyer

In response the State filed its Respondents Objection To Affidavits Of Myhkhel

Ysrael [sic] And Michael Blumenthal Filed By Petitioner on April 21 2016 Therein it

asserts inter alia that to-wit (a) Mykhel Yisreal was not called to testify at hearings

held in this matter in April of 2014 or December of 2015 and that PetitionerDefendant

Page 6 of32

should have called as a witness (b) Michael Blumenthal should have been recalled as a

witness at the time of the December 16th hearing to clarify his testimony stated on

direct ~xamination and (c) filing such Affidavits prevents it from having the opportunity

to cross-examine such individuals on this new testimony Accordingly the State

requests these Affidavits to not be considered by this Court in its further deliberations

and rulings herein

Courtesy copies of such Affidavits and Objection were provided to this Court

pursuant to Rule 2201 of the West Virginia Trial Court Rules However Mr Newbold

unilaterally filed these sworn affidavits on PetitionerDefendants behalf over three

months after the conclusion of the December 16 2015 evidentiary hearing and well

subsequent to the parties respective submissions of their proposed Findings and

Conclusions There was no Scheduling Order in place for any further evidentiary

submissions or other related pleadings by the parties Furthermore Mr Newbold failed

to move this Court on PetitionerDefendants behalf for leave to file these affidavits at

the time they were submitted

Determinations

This Court has followed the directive of the Supreme Court of Appeals of West

Virginia delivered in its Opinion released pursuant to Rule 22 of the Rules of Appelate

Procedure West Virginia Supreme Court of Appeals (See Hutton 235 WVa at 743

776 SE2d at 639) Upon such jurisdictional return pursuant to Rule 26(a) of such

Rules of Appellate Procedure and expiration of the Supreme Court of Appeals of West

Virginias appropriately issued mandate this Court to-wit (a) conducted a further

evidentiary hearing for taking additional testimony receiving evidentiary exhibits and

Page 7 of32

entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

Page 8 of32

8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 5: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

7

Proposed Findings of Fact and Conclusions of Law were ordered to be

respectively prepared and filed on behalf of PetitionerDefendant and the State of West

Virginia (See this Courts Order Following Hearing entered herein on January 82016

as prepared by Mr Newbold and approved by Ms Roberts)

On January 11 2016 this Court caused to be entered its Order Sua Sponte

Directing Court Reporter To Prepare And Deliver To This Court A Certified Transcript Of

Evidentiary Proceedings Conducted Herein On December 16 2015 On Remand From

The Supreme Court Of Appeals Of West Virginia Therein the Official Court Reporter

was directed to prepare a certified transcript accurately reflecting all matiers placed on

the record herein at such hearing and deliver same to it in a timely manner

PetitionerDefendants Findings Of Fact And Conclusions Of Law were filed

herein on February 11 2016 Therein inter alia he ultimately proposes that this Court

should order his conviction vacated his plea withdrawn and the original indictment

restored to the docket (See Findings and Conclusions p 46)

State ofWest Virginias Exhibits marked and admitted (also see Hearing Transcript p 4) are to-wit 1 Nine (9) page copy of documents pertaining to Harrison County Magistrate COUl1 Case No

09D-40 I Family Court Civil Action No 09-DV -38-4 In the malter ofTamara Michele Knox Petitioner and Mykal Rasyth Respondent including Civil Case Information Stateme11t File Transfer Receipt DomesNc Violence Case Hisoryand Domestic Violence Petition

2 Twenty-two (22) page copy of an unofficial transcript of hearing before Harrison County Family Court on January 27 2009 in Family Court Civil Action No 09-DV-38-4 In the matter oTamara Michele Knox Petitio11er and Mykal Rasyth Respondent

3 Twenty-one (21) page copy of Emergency Room records concerning Tamara Knox on January 212009 under UHC certification letter of Amy R Jordan duly authorized custodian ofMedical Records of United Hospital Center Clarksburg West Virginia dated March 3 2009 and duly notarized

4 Thirty-one (31) page copy of an unofficial transcript of a tape recorded statement of Tamara Knox given to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 3 2009 at the Harrison County Prosecutings Office

S Seventeen (17) page copy ofan unofficial transcript of a tape recorded statement of the victim in the underlying criminal matter Tamara Knox given as a follow-up statement to Jason Snyder Sergeant Detective of the Clarksburg Police Department on March 11 2009 at the Harrison County Prosecutings Office

Page 5 of32

Respondents Proposed Findings Of Fact And Conclusions Of Law Upon Petition

For Writ Of Error Coram Nobis were filed herein on March 142016 Therein inter alia

the State summarizes that PetitionerDefendant is not entitled to a Writ of Error Coram

Nobis and accordingly his Petition should be denied based upon the provided analysis

therein upon taking into consideration the requirements set forth in the adopted fourshy

part test necessary for raising such legal error as well as for obtaining his requested

relief as presented in his proffered findings and conclusions

Affidavits on Behalf of Orville M Hutton

Under cover letter dated March 31 2016 and filed herein on April 6 2016

PetitionerDefendants legal counsel additionally filed sworn affidavits to-wit

1 Sworn Affidavit of Michael C Blumenthal dated and notarized on February

8 2016 Therein such affiant states his wish to clarify one element of [his] testimony

due to what he describes as having inadvertently created some confusion with his

testimony as contained in page 83 of the official Transcript from the December 16

2015 hearing

2 Sworn Affidavit Of Mykhel Yisrael notarized on March 30 2016 The halfshy

sister of PetitionerDefendant therein swears and affirms inter alia that after reviewing

the official hearing transcript she disputes specific facts testified to at the December 16

2015 hearing by Mr Dyer

In response the State filed its Respondents Objection To Affidavits Of Myhkhel

Ysrael [sic] And Michael Blumenthal Filed By Petitioner on April 21 2016 Therein it

asserts inter alia that to-wit (a) Mykhel Yisreal was not called to testify at hearings

held in this matter in April of 2014 or December of 2015 and that PetitionerDefendant

Page 6 of32

should have called as a witness (b) Michael Blumenthal should have been recalled as a

witness at the time of the December 16th hearing to clarify his testimony stated on

direct ~xamination and (c) filing such Affidavits prevents it from having the opportunity

to cross-examine such individuals on this new testimony Accordingly the State

requests these Affidavits to not be considered by this Court in its further deliberations

and rulings herein

Courtesy copies of such Affidavits and Objection were provided to this Court

pursuant to Rule 2201 of the West Virginia Trial Court Rules However Mr Newbold

unilaterally filed these sworn affidavits on PetitionerDefendants behalf over three

months after the conclusion of the December 16 2015 evidentiary hearing and well

subsequent to the parties respective submissions of their proposed Findings and

Conclusions There was no Scheduling Order in place for any further evidentiary

submissions or other related pleadings by the parties Furthermore Mr Newbold failed

to move this Court on PetitionerDefendants behalf for leave to file these affidavits at

the time they were submitted

Determinations

This Court has followed the directive of the Supreme Court of Appeals of West

Virginia delivered in its Opinion released pursuant to Rule 22 of the Rules of Appelate

Procedure West Virginia Supreme Court of Appeals (See Hutton 235 WVa at 743

776 SE2d at 639) Upon such jurisdictional return pursuant to Rule 26(a) of such

Rules of Appellate Procedure and expiration of the Supreme Court of Appeals of West

Virginias appropriately issued mandate this Court to-wit (a) conducted a further

evidentiary hearing for taking additional testimony receiving evidentiary exhibits and

Page 7 of32

entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

Page 8 of32

8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 6: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

Respondents Proposed Findings Of Fact And Conclusions Of Law Upon Petition

For Writ Of Error Coram Nobis were filed herein on March 142016 Therein inter alia

the State summarizes that PetitionerDefendant is not entitled to a Writ of Error Coram

Nobis and accordingly his Petition should be denied based upon the provided analysis

therein upon taking into consideration the requirements set forth in the adopted fourshy

part test necessary for raising such legal error as well as for obtaining his requested

relief as presented in his proffered findings and conclusions

Affidavits on Behalf of Orville M Hutton

Under cover letter dated March 31 2016 and filed herein on April 6 2016

PetitionerDefendants legal counsel additionally filed sworn affidavits to-wit

1 Sworn Affidavit of Michael C Blumenthal dated and notarized on February

8 2016 Therein such affiant states his wish to clarify one element of [his] testimony

due to what he describes as having inadvertently created some confusion with his

testimony as contained in page 83 of the official Transcript from the December 16

2015 hearing

2 Sworn Affidavit Of Mykhel Yisrael notarized on March 30 2016 The halfshy

sister of PetitionerDefendant therein swears and affirms inter alia that after reviewing

the official hearing transcript she disputes specific facts testified to at the December 16

2015 hearing by Mr Dyer

In response the State filed its Respondents Objection To Affidavits Of Myhkhel

Ysrael [sic] And Michael Blumenthal Filed By Petitioner on April 21 2016 Therein it

asserts inter alia that to-wit (a) Mykhel Yisreal was not called to testify at hearings

held in this matter in April of 2014 or December of 2015 and that PetitionerDefendant

Page 6 of32

should have called as a witness (b) Michael Blumenthal should have been recalled as a

witness at the time of the December 16th hearing to clarify his testimony stated on

direct ~xamination and (c) filing such Affidavits prevents it from having the opportunity

to cross-examine such individuals on this new testimony Accordingly the State

requests these Affidavits to not be considered by this Court in its further deliberations

and rulings herein

Courtesy copies of such Affidavits and Objection were provided to this Court

pursuant to Rule 2201 of the West Virginia Trial Court Rules However Mr Newbold

unilaterally filed these sworn affidavits on PetitionerDefendants behalf over three

months after the conclusion of the December 16 2015 evidentiary hearing and well

subsequent to the parties respective submissions of their proposed Findings and

Conclusions There was no Scheduling Order in place for any further evidentiary

submissions or other related pleadings by the parties Furthermore Mr Newbold failed

to move this Court on PetitionerDefendants behalf for leave to file these affidavits at

the time they were submitted

Determinations

This Court has followed the directive of the Supreme Court of Appeals of West

Virginia delivered in its Opinion released pursuant to Rule 22 of the Rules of Appelate

Procedure West Virginia Supreme Court of Appeals (See Hutton 235 WVa at 743

776 SE2d at 639) Upon such jurisdictional return pursuant to Rule 26(a) of such

Rules of Appellate Procedure and expiration of the Supreme Court of Appeals of West

Virginias appropriately issued mandate this Court to-wit (a) conducted a further

evidentiary hearing for taking additional testimony receiving evidentiary exhibits and

Page 7 of32

entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

Page 8 of32

8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 7: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

should have called as a witness (b) Michael Blumenthal should have been recalled as a

witness at the time of the December 16th hearing to clarify his testimony stated on

direct ~xamination and (c) filing such Affidavits prevents it from having the opportunity

to cross-examine such individuals on this new testimony Accordingly the State

requests these Affidavits to not be considered by this Court in its further deliberations

and rulings herein

Courtesy copies of such Affidavits and Objection were provided to this Court

pursuant to Rule 2201 of the West Virginia Trial Court Rules However Mr Newbold

unilaterally filed these sworn affidavits on PetitionerDefendants behalf over three

months after the conclusion of the December 16 2015 evidentiary hearing and well

subsequent to the parties respective submissions of their proposed Findings and

Conclusions There was no Scheduling Order in place for any further evidentiary

submissions or other related pleadings by the parties Furthermore Mr Newbold failed

to move this Court on PetitionerDefendants behalf for leave to file these affidavits at

the time they were submitted

Determinations

This Court has followed the directive of the Supreme Court of Appeals of West

Virginia delivered in its Opinion released pursuant to Rule 22 of the Rules of Appelate

Procedure West Virginia Supreme Court of Appeals (See Hutton 235 WVa at 743

776 SE2d at 639) Upon such jurisdictional return pursuant to Rule 26(a) of such

Rules of Appellate Procedure and expiration of the Supreme Court of Appeals of West

Virginias appropriately issued mandate this Court to-wit (a) conducted a further

evidentiary hearing for taking additional testimony receiving evidentiary exhibits and

Page 7 of32

entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

Page 8 of32

8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 8: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

entertaining oral arguments of the parties (b) reviewed PetitionerDefendants original

Petition as well as a directly related pleadings including all related Exhibits and other

submissions that are appropriately a matter of record (c) considered

PetitionerDefendants Findings and Conclusions as well as Respondents (States)

Proposed Findings and Conclusions and (d) studied as well as conducted legal

research upon the respective parties proffered legal citations and other legal authority

deemed relevant and pertinent 8

Initiay this Court determines that PetitionerDefendants subsequently submitted

and filed Affidavits are procedurally deficient having been improperly filed and thereby

as a result were unduly prejudicial substantively to the State It was afforded no

opportunity for any cross-examination of these affiants on such new testimony

Accordingly the States Objection to these Affidavits should be SUSTAINED and

its Request that they not be considered in this Courts deliberations and subsequent

ruling on PetitionerDefendants Petition should be GRANTED

After such thorough review of the properly developed record and research

conducted thereon as well as its mature and deliberate consideration all thereof this

Court further determines that PetitionerDefendants pending Petition fails to necessarily

meet the applicable standards to a sufficient extent that being a preponderance of the

evidence in order for his requested extraordinary relief to be granted

During the December 162015 hearing respective legal counsel and this Court discussed transcripts and audiovideo recordings relating to Family Court of Harrison County West Virginia proceedings in Knox li Rosyth Case No 09-DV-38 There appeared to be some confusion as to whether or not Defendants Exhibit No 10 contained audiovisual recordings of subsequent hearing(s) conducted therein following the January 27 2009 hearing before the Honorable Comelia A Reep Upon further review this Court discovered that such CD contains only the audiovideo recording of the January 27 2009 hearing which lasted one (I) hour eleven (11) minutes and ten (10) seconds on the record There is no recording penaining to any hearing purportedly conducted on February 3 20090r otherwise before such Court

Page 8 of32

8

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 9: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

Accordingly PetitionerDefendant Orville M Hutton aka Mykal G Rasyths

Emergency Petition For Writ of EtTor Coram Nobis should be DENIED and REFUSED

The appropriately deemed bases for such determinations are now set forth and

addressed under the identified standard of review findings and conclusions as well as

summarized herein infra

Standard of Review on Limited Remand 9

1 Hutton specifical~y states inter alia that to-wit

The circuit court made three dispositive rulings in denying Mr Hutton relief The court determined that the writ of error coram nobis did not exist in West Virginia a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ and Mr Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea (See Hutton 235 WVa at 727-28 776 SE2d at 624shy625)

2 In addressing these dispositive rulings our State Supreme Courts

majority10 provided an overview of the origins and scope of the writ of error coram nobis

before stating as well as holding inter alia to-wit

The prior decisions of this middotCourt have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislalures adoption of Virginias coram nobis motion statute (See Id at 735 at 632)

In sum Rule 60(b) [West Virginia Rules of Civil Procedure] abolished the common law writ of error coram nobis in civil cases The Legislatures repeal of the coram nobis motion statute merely abolished

9 Our State Supreme Court recently reiterated in its Memorandum Decision filed on January 8 2016 in Black v St Josephs Hospital ofBuckhannon 2016 WL 143312 the restrictive parameters of a limited remand to-wit

This Court has stated that [u]nder a limited remand the court on remand is precluded from considering other issues or new matters affecting the cause 5 AmJur2d Appellate Review sect 787 at 455 (1995) (footnotes Oluitted) State ex rei Frazier amp Oxley LC v Cummings 214 WVa 802809591 SE2d 728 735 (2003)

10 Justice Loughry concurred in part and dissented in part while Justice Benjamin dissented and filed a separate and dissenting opinion

Page 9 of32

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 10: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

the use of a motion to raise a coram nobis issue in criminal ca~es Consequently and we so hold in West Virginia the common Jaw writ of error coram nobis is available only in criminal proceedings [with n 14] (See Id at 736 at 633)

Although we agree that the writ of error coram nobis was limited under the common law to errors of fact the modern trend has been to narrowly expand the writ to include limited legal errors involving constitutional deprivations [T]his Court has made clear that we have authority t alter the common law (See [d at 736-737 at 633-634)

(Underline emphasis provided by this Court)

3 In so determining it then modified the common law writ of error coram

nobis accordingly and further stated to-wit

(a) Modification of the writ of error coram nobis by the United States

Supreme Court whereby it has held that coram nobis included errors of the most

fundamental character including constitutional claims of error (Unfted States v Morgan

346 US 502512 74 SCt 247 253 98 LEd 248 (1954) and further addressed such

limitations therein by stating we were careful in Morgan to limit the availability of the

writ to extraordinary cases presenting circumstances compelling its use to achieve

justice United States v Denedo 556 US 904 911129 SCt 2213 2220173 LEd2d

1235 (internal quotations and citations omittedraquo See Hutton at 737-738 at 634-635

(Quotations from Hutton) (Bold type emphasis provided by Appeals Court in Opinion)

(b) A defendant has a constitutional right to be informed of the possible

deportation consequences of being convicted of a crime in that a defendant has a

right Uto be informed of any immigration consequences before pleading guilty to a

crime11 due to such advice being within the scope of the Sixth Amendment right to

counsel established by the United States Supreme Court in Padilla v Kentucky 559

See Hutton at 738 at 635

Page 10 of32

II

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 11: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

US 356 130 SCt 1473 176 LEd2d 284 (2010) and subject to an analysis under the

two-pronged test of Strickland v Washington 466 US 668 104 SCt 2052 80 LEd

674 (1984) addressing constitutional deficiency and prejudice Hutton at 738-741 at

635-638 (Bold type emphasis provided by Appeals Court in Opinion)

(c) Creation of a four-part test for asserting a constitutional legal claim

in a petition for a writ of error coram nobis acknowledging and adopting the Fourth

Circuits recognition of a four-part test for determining when the writ of error coram nobis

may be used to remedy a constitutional legal error as set out in United States v

Akinsade 686 F3d 248 (4th Cir 2012) Hutton 235 WVa at 741-742 776 SE2d

638-639 (Bold type emphasis provided by Appeals Court in Opinion)

4 Hutton at 741 at 638 specifically states that to-wit

The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that [als a remedy of last resort the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy Akinsade 686 F3d at 252 (internal quotions and citation omitted)

and reiterates to-wit

a four-part test that a petitioner must satisfy to obtain relief in a coram nobis proceeding on a claim of constitution legal error

A petitioner seeking this relief must show that (1) a more usual remedy middotis not available (2) valid reasons exist for not attacking the conviction earlier (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III and (4) the error is of the most fundamental character

5 Hutton at 740-741 at 637-638 specifically further holds that to-wit

[U]nder Padilla v Kentucky bull the Sixth Amendment requires defense I

counsel to warn- an immigrant client of the deportation consequences of a guilty plea When deportation consequence is succinct clear and explicit under the applicable law counsel must provide correct advice to the client When the law is not succinct or straightforward counsel is required only to

Page llof32

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 12: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

advise the client that the criminal charges may carry a risk of adverse immigration consequences

6 Hutton at 742 at 639 specifically further holds that to-wit

[A1 claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available (2) valid reasons exist for not attacking the conviction earlier (3) there exists a substantial adverse consequence from the conviction and (4) the error presents a denial of a fundamental constitutional right

7 In its Opinion our State Supreme Court specifically remanded this case so

that this Court could apply the test [for raising a legal error in a petition for a writ of

error coram nobis1 to the facts of this case with the additional benefit of the guidance

set out in Padilla12

8 This Court believes such guidance to be well qualified by the State

Supreme Courts expectation that any definitive statement required of legal counsel to a

known immigrant client as to any deportation possibility attendant a plea agreem~nt is

tempered in that such counsel is not imposed with the duty to investigate the

12 See Hutton at 742 at 639 particularly n 19 which states to-wit

We also are concerned that the circuit courts order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel On remand the circuit court will now have the benefit ofthe guidance set out in Padilla

Also see Hutton Id at 742-743 at 639-640 n 20 which specifically states in most pertinent part to this matter 011 remand to-wit

The circuit courts ruling was based upon trial counsels affidavit wherein trial counsel indicated that he did not remember if he had advised Mr Hutton about deportation In light of the Supreme Courts opinion in Padilla we are doubtful that the attorneys failed memOlY affidavit is sufficient to reject Mr Huttons claim that he was not informed about middotdeportation Padilla would appear to require a definitive statement by counsel that he informed Mr Hutton ofthe possibility of deportation In the instant proceeding the faiJed memory of Mr Huttons trial counsel on this critical constitutional issue is tantamount to silence by counsel Such silence is unacceptable But see State v Stephens 46 KanApp2d 853265 PJd 574 577 (2011) ([t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a clients probation or prison sentence not did the Pada Court impose upon counsel the duty to investigate the citizenship or immigration status ofevery client in every criminal case)

Page 12 of32

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 13: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

citizenship or immigration status of every client in every criminal case (Bold type

and underline emphasis provided by this Court)

9 A writ of error coram nobis is only to be used in extraordinary

circumstan~s Any proceeding which is challenged by the writ of error coram nobis is

presumed to be correct and the burden rests on its assailant to show otherwise See

State v Hutton

10 PetitionerDefendant bears the burden of proving he is entitled to coram

nobis relief by establishing all of the requirements of the four-part test adopted in Hutton

as previously established in Akinsade

11 A writ of error coram nobis is a remedy of last resort available only where

an error is of the most fundamental character and there exists no other available

remedy Akinsade at 252 (quoting United States v Mandel 862 F2d 1067 1075 (4th

Cir 1988)

12 Our State Supreme Court has stated that U[u]nder limited remand the

court on remand is precluded from considering other issues or new matters affecting

the cause 5 AmJur2d Appellate review sect 787 at 455 (1995) (footnotes omitted

State ex rei Frazier amp Oxley Le v CUlTJmings 214 Wva 802 809 591 SE2d 728

735 (2003)

13 The United States Supreme Court has made clear that the Sixth

Amendment right to effective assistance of counsel afforded all criminal defendants is

a right that extends to the plea bargaining process n Lafler v Cooper 132 SCt 1376

1384 (2012) see also Padilla v Kentucky 559 US 759 771 (2010) Hill v Lockhart

474 US 52 57 (1985) McMann v Richardson 397 US 759 771 (1970)

Page 13 of32

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 14: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

14 Because deportation is a severe penalty advice regarding deportation is

within the scope of the Sixth Amendment right to counsel and subject to an analysis

under the Strickand standard as articulated therein and subsequently adopted to

govern ineffective assistance of counsel claims under Article III Sections 10 14 and 17

of the West Virginia Constitution in State v Mille 194 Wva 3459 SE2d 114 (1995)

15 Syllabus Point 5 of Miller states this well-settled standard for evaluating

legal counsels effectiveness to-wit

In the West Virginia courts claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickand v Washington 466 US 668 104 SCt 2052 80 LEd2d 674 (1984) (1) Counsels performance was deficient under an objective standard of reasonableness and (2) there is a reasonable probability that but for counsels unprofessional errors the result of the proceedings would have been different

16 Syllabus Point 6 of Miller provides still further guidance to the first prong of

such two-prong test to-wit

In reviewing counsels performance courts must apply an objective standard and determine whether in light of all the circumstances the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsels strategic decisions Thus a reviewing court asks whether a reasonable lawyer would have acted under the circumstances as defense counsel acted in the case at issue

194 Wva at 6-7 459 SE2d at 117-1 B

17 Syllabus Point 3 of State v Sims 162 Wva 212 248 SE2d 834 (1978)

(also see Syl Pt 3 of State ex ref Levitt v Bordenkircher 176 Wva 162 342 SE2d

127 (1986)) in relation to applying the first prong of the StrioklandlMiller test states

that

[blefore a guilty plea will be set aside based on the fact that the defendant was incompetently advised it must be shown that (1) counsel

Page 14 of 32

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 15: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

did act incompetently (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial (3) thE guilty plea must have been motivated by this error

18 The second prong or prejudice requirement or the StricklandMiller test

is if counsels performance was deficient whether counsels deficient performance

adversely affected the outcome in a given case See Syllabus Point 5 of State ex reI

Vernatter v Warden West Virginia Penitentiary 207 Wva 11528 SE2d 207 (1999)

19 However as in this instant matter where a guilty plea is involvedthe

prejudice factor focuses on whether counsels constitutionally ineffective performance

affected the outcome of the plea process In order to satisfy the prejudice requirement

the defendant must show that there is a reasonable probability that but for counsels

errors he would not have pleaded guilty and would have insisted on going to trial Id

207 Wva at 18 528 SE2d at 214 citing Hill v Lockhart 474 US 52 59 106

SCt366 370 88 LEd2d 203 (1985)

20 In further elaboration thereon our West Virginia Supreme Court of Appeals

furth~r elaborated on Sims emphasized that guilty pleas will not be lightly set aside

upon the ground ofineffeclive assistance of counsel and that [b]efore an initial flnding

will be made that counsel acted incompetently with respect to advising on legal issues

in connection with a guilty plea the advice must be manifestly erroneous Syllabus

Point 2 of State ex reI Button v Whyte 163 WVa 276 256 S E2d 424 (1979)

21 Judicial scrutiny of legal counsels performance is highly deferential

under Strickland 466 US at 689-90 Therefore this Court should presume strongly

that counsels performance was reasonable andmiddot adequate Miller 194 WVa at 16

459 SE2d at 127 Such strong presumption of competency at a plea bargaining stage

Page 15 of32

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 16: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

should not be evaluated through a lens of hindsight See Syl Pt 4 State et rei Daniel

v Legursky 195 Wva 314316465 SE2d 416 419 (1995)

Findings and Conclusions on Limited Remand

22 Now having benefit of the Akinsade test adopted by our State Supreme

Court of Appeals and knowledge of its concern that this Court be given the additional

benefit of having Padilla considered and discussed on remand the parties have been

fully permitted to supplement their evidence accordingly while further affording

PetitionerDefendant appointed legal counsel as he requested

23 This Courts Order caused to be entered on October 27 2015 properly

noticed the parties of the opportunity to supplement their evidence herein an

evidentiary hearing was properly conducted on December 16 2015 and submission of

proposed middotfindings and conclusions was timely allowed For additional purposes of

having a fully developed findings and conclusions herein this Court hereby incorporates

herein by reference thereto Respondent State of West Virginias Case History as

reflected in Respondents Proposed Findings Of Fact And Conclusions Of Law Upon

Petition For Writ Of Error Coram Nobis pp 2 - 11 at mr nos 1 through 36

24 This Court recognizes and opines that criminal defendants often choose to

only hear the aspects of their legal counsels advice that they wish to hear and may not

always be forthcoming with duly sufficient information in responsive discussions during

investigations and pre-trial matters so as to sufficiently aid such counsels providing

informed representation thereof throughout criminal proceedings

25 The record sufficiently demonstrates that Mr Dyers discussions with

PetitionerDefendant collectively demonstrate given the totality of circumstances therein

Page 160f32

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 17: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

surrounding that Mr Hutton was alerted to potential immigration issues dependent

upon his actual citizenship status and that he chose for whatever reasons to not

directly disclose to Mr Dyer the exact nature of such status only providing such

information which this Court deems to have been calculated to lead Mr Dyer to believe

his status to be a non-issue in relationship to his plea agreement or any conviction and

sentence ultimately imposed whether it be a direct or collateral consequence

26 On direct examination by PetitionerDefendants legal counsel Mr Dyers

credible testimony reflects inter alia that to-wit

(a) He was aware of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IRAIRAil) and that a consequence of certain felonies

particularly aggravated felonies was being deportable even categorically in certain

jurisdictions (See December 162015 Hearing Transcript p 102)

(b) He questioned PetitionerDefendant conversationally with regard to

immigrationcitizenship status insofar as asking if it was something we need to

worry about and was led to believe that 1need not worry about it which he took

to mean that there were no citizenship issues in his case (See Id pp 102-103)

(c) In this case it wasnt an issue because it was made clear to me that it

wasnt an issueII (See Id~ p 103)

(d) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 103-104)

Page 17 of32

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 18: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

(e) I inquired of Mr Hutton as to whether or not he or I or both of us or other

lawyers or somebody needed to be concerned about his status here and I dont have

any other than those discussions or conversations always concluded with the idea that

no that wasnt necessary (See Id pp 104-105)

(f) We [Mr Dyer and Mr Hutton] didnt really have a conversation about it

[immigration or citizenship status] because he had indicated to me that it wasnt

necessclry (See Id p 106)

(g) We dont have any conversation about the consequences of him pleading

guilty because I inquired as to whether or not this [immigration or citizenship status] was

an issue we should be concerned with and he says to me no dont worry about it

(See Id p 107)

(h) I had made other inquiries I probably made a handful of inquiries What

is your status Where the hell you from What are you doing here so I said to him

when it got time to you know discuss the idea of considering a plea agreement well

do we need to be giving consideration to issues regarding your status as a citizen Is

that an Issue I mean what the hell are you doing here Are you on some visa I

mean you tell me What the heck are you doing here My point is I was informed

by him we dont - that doesnt need to be taken into consideration I had discljssions

with him about where he was from and what he was doing here There was no

immigration status He just kind of blew the conversation off (See Id pp 107shy

108)13

At this point in the proceedings during his testimony Mr Dyer was admonished by this Cou11 to watch his language

Page 18 of32

13

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 19: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

(i) I certainly recognize that I had some obligation to address any potential

adverse impact upon his status here if his status was an issue But I was never led to

believe or never informed or never told that yeah we need to worry about thatD (See

Id p 108)

0gt I wasnt told that he was from Jamaica I recall Jamaica coming up in

the conversation but I have no recollection of him [Mr Hutton] saying I was born in

Jamaica Im from Jamaica Im a Jamaican citizen (See Id p 110)

27 While further testifying on direct examination Mr Dyer and

PetitionerDefendants legal counsel had the following exchange

Q Would you normally have a meeting with the people before they get sentenced

A Oh yeah always

Q Did you received a copy of the PSI [Pre-Sentence Investigation Report] in this case

A Im sure that I did

Q Do you normally review that with your client

A Always

Q To make sure its factually accurate

A Always

Q And so you would have done that with Mr Rasyth (DefendantPetitioner) as well

A Im making that assumption based upon the fact I always do it I dont have a specific memory of it

Q So in this presentence investigation when it talks about family background --

A Right

Q -- gets down to siblings and down underneath the siblings it says the defendant was born in Kingston Jamaica14 Is that not correct

The Pre-Sentence Investigation Report actually states Kinston Jamaica

Page 19 of32

14

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 20: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

A Oh below the siblings The defendant was born in Kingston Jamaica Thats what it says yeah

Q Okay So at this point you have actual knowledge that he was born in Jamaica Did you at that point say what is your immigration status

A I have 110 memory of that

Q Does that not trigger in your mind an obligation to examine those facts and find out what his immigration status was especially considering the fact that Padilla had just been decided

A No

Q And you never questioned him regarding what his immigration status was and never informed him that under Padilla and under IRAIRA that he was probably going to get deported

A Which question do you want answered

Q You never had that discussion with him

A Did I ever question him That answer is yes

Q Did you ever ask him what his immigration status was Are you a citizen do you have a green card are you illegal You didnt ask him any of those questions

A I have no memory of the specific questions that I asked Mr Rasyth but I made an inquiry generally into those issues and only to discover that it wasnt necessary for me to concern myself with those issues I just assumed he was a citi~en

THE COURT You assumed he was a citizen of what

THE WITNESS The United States

(See Id pp 139-142)

28 On cross-examination and recross-examination testimony by Respondent

States attorney Mr Dyers further credible testimony reflects inter alia that to-wit

Q Would it be a fair statement to say that Mr Hutton was evasive when you tried to discuss his citizenship status with him

A I dont knQN I mean I just you know was just vague I got the impression that he just didnt - he didnt want to spell it out for me I mean he was a smart man He was a nice guy There was a mutual

Page 20 of32

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 21: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

understanding that you know if citizenship is an issue with you its going to be a much bigger issue and theres certainly potential adverse consequences of pleading guilty to a felony here in the United States you know should we be worried about that And I was always walking away frpm these discussions with a distinct impression that no dont worry about it so I didnt

(See Id p 153)

29 Resulting inferences arrived at by Mr Dyer based upon his inquiries of Mr

Hutton and the responses he received were that PetitionerDefendant was not an

immigrant and there was not a citizenship issue which needed to be further addressed

in relation to his pleading guilty via a Kennedy plea t5 and being convictedsentenced

upon a felony charge of unlawful wounding

30 The testimony and evidence presented by and on behalfmiddot of

PetitionerDefendant does not establish that Mr Dyers performance during plea

negotiations was deficient to any sufficient extent so as to constitute ineffective

assistance of counsel in light of the constitutional infirmity under Padilla and upon

application of the StricklandlMiller test for insufficiency of counsel and upon applic~tion

of the AkinsadelHutton test for allowable relief on a Writ of Error Coram Nobis

31 On direct examination by PetitionerDefendants legal counsel Mr

Blumenthals testimony reflects inter alia that to-wit

(a) When asked by PetitionerlDefendants legal counsel on direct examination

as to available discretion which may be exercised by a court as to deportation for

someone convicted of an aggravated felony he responded particularly Well generally

if you - the basic law suggests that it says that if you are convicted of an aggravated

15 SyUabus Point 1 of Kennedy v Frazier 178 WVa 10357 SE2d 43 (1987) states to-wit An accused may voluntarily knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that the jury could convict him

Page 21 of32

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 22: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

felony you are as a matter of law deportable He then stated [H]owever there is

within as with all immigration cases the government has a great deal of discretion as to

enforcement and usually the cases of undue hardship to family extenuating

circumstances time in the country time since the crime was committed etc etc which

the courts can take into consideration (See December 16 2015 Hearing Transcript p

83)

(b) [R]emoval proceedings upon conviction are not automatic there is a

certain amount of discretion and that deportation is a collateral consequence of a

felony plea not a direct consequence (See Id pp 90-91)

(c) There are two different approaches to review a removal determination

which are categ9rical where a reviewing court cannot review certain facts in the

underlying felony case and non-categorical where a reviewing court can review such

facts for determining removal and deportation (See Id pp 91-92)

(d) There is presently a split among Federal Circuit Courts of Appeal as to

whether reviewing courts can (non-categorical) or cannot (categorical) review certain

facts in the underlying felony case (See Id)

(e) PetitionerDefendants case was reviewed using the categorical approach

and that he would have had the right to apply for further proceedings on appeal through

a Writ of Certiorari from the United States Supreme Court on his removal determination

(See d)

32 PetitionerDefendant has proceedings simultaneously pending before the

Third Circuit Court of Appeals upon his Petition for Review Em~rgency Motion to Stay

Appeal Review and before the Board of Immigration Appeals upon his Motion to

Page 22 of32

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 23: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

Reconsider concerning his removal and deportation matters (See colectively

Defendants Exhibits 1 4 - 9 particularly Exhibits 8 and 9) Further action in those

proceedings have been stayed pending this matters resolution

33 Accordingly PetitionerDefendants Writ of Error Coram Nobis is not his

last resort procedurally as to addressing his potential removal and deportation to a point

of finality and wherein dependent upon his appellate outcomes he could theoretically

then also collaterally attack his deportation on constitutional infirmities based upon

violation of his 6th Amendment rights

34 PetitionerDefendant was aware of his ability to file a Petition for a Writ of

Habeas Corpus attacking his conviction for ineffective assistance of counsel during his

initial period of incarceration following his sentencing in the underlying criminal matter

35 In pleadings previously filed therein by and through Mr Courteney Craig

Esq his retained legal counsel PetitionerDefendant alleged his intentions to file such

a Petition due to allegations directed towards Thomas G Dyer Esq his legal counsel

in the underlying criminal proceeqings for failing to properly investigate his case and

prepare for trial which are his same allegations in his Petitioner for a Writ of Error

Coram Nobis save for the specific addition of not being fully counseled about

deportation (removal) issues

36 Although Mr Craig eventually withdrew from his retained legal

representation before any Habeas Corpus Petition was filed on his behalf

PetitionerDefendant was unequivocally made aware of his ability to file a Petition for a

Writ of Habeas Corpus during his initial period of incarceration following his sentencing

Page 23 of32

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening matters and

subsequent criminal activities that Notice was sent to DefendantPetitioner and the

correctional facility where he was discharging his original criminal sentence in

underlying Felony Case No 10-F-34-2 by the Department of Homeland Security

requesting a detainer to hold him upon the discharge of such sentence which

subsequently occurred on May 25 2013

Summary

PetitionerDefendants requested relief shall not be granted Upon his Petition

being denied and refused to-wit (a) his conviction on the felony offense of unlawful

wounding shall not be vacated (b) his original plea of guilty to one (1) felony count of

unlawful wounding cannot be withdrawn (c) his Plea Agreement which he voluntarily

entered into cannot be rescinded (d) the record of his conviction will not be expunged

(as originally requested in his Petition) and (e) his original four (4) count felony

Indictment will not be restored for further criminal proceedings upon this Courts docket

This Court identifies no compelling circumstances upon further evidentiary

review on limited remand rising to the required level to compel such a Writ of Error

Coram Nobis to necessarily issue in order to achieve any further justice h~rein

Page 29 of32

PetitionerDefendant had a more usual remedy for attacking his incarceration

under alleged ineffective assistance of counsel available during his incarceration via

Petition for Writ of Habeas Corpus He was aware of such reliefs availability as the

underlying post-conviction record and pleadings herein further demonstrate his

previously expressed intention to timely pursue However for whatever reasons he

voluntarily chose not to pursue that remedy prior to his initial release on probation after

a years incarceration or during his subsequent incarceration upon his probation

revocation and prior to the ultimate discharge of his original sentence

Valid reasons did not exist for PetitionerDefendant not attacking his

incarceration sooner under available post-conviction extraordinary relief

Adverse consequences may presently exist for PetitionerDefendant as a result

of his deportation (removal) proceedings regardless of being deemed either direct or

collateral However such further developed evidentiary record herein as directed in

limited fashion on remand does not establish the threshold requirement of his having

been denied a fundamental constitutional right established pursuant to Padilla

Rulings

Accordingly upon all of the foregoing consideration and analysis this Court

hereby ORDERS that the requested relief as contained in Emergency Petition For Writ

Of Error Coram Nobis originally filed on September 4 2013 by the PetitionerDefendant

Orville M Hutton aka Mykal G Rasyth as well as requested on limited remand from

his appeal of earlier rlJlings herein under its Amended Order caused to be entered

herein on April 28 2014 be and is REFUSED and such Petition further DENIED

Page 30 of32

Also given the voluminous nature ofmiddot this proceeding and the developed

evidentiary record herein in the event it failed to address the particular admission of any

evidentiary matter properly presented and requested to be so admitted this Court

further hereby ORDERS that any such evidentiary item still pending be and is

ADMITTED into evidence and made a matter of record herein

Having so ruled this Court hereby further ORDERS that the respective parties

herein be and are GRANTED all appropriate objections and exceptions thereto

So there is a complete evidentiary record herein as hereinabove addressed and

in addition to all that presently comprises such this Court sua sponte hereby ORDERS

that the underlying felony case record and earlier Coram Nobis proceedings herein and

maintained by the Clerk of this Court (ie Felony Case Number 10-F-34-2 and Civil

Action Number 13-P-119-2) be and are hereby incorporated herein by reference thereto

and made a matter of record in this now final evidentiary proceeding on limited remand

As such they shall be included in the evidentiary record herein and in the event there

may be any subsequent appeal also timely and properly filed with the West Virginia

Supreme Court of Appeals or other Court with appropriate jurisdiction

This is a comprehensive FINAL ORDER Upon entry of such Ruling Order

either party may appeal by filing a notice of appeal and the attachments required under

Rule 5b) of the West Virginia Rules of Appelate Procedure with the Office of the Clerk

of the Supreme Court of Appeals of West Virginia within thirty (30) days of the entry of

this order and by serving a copy on all parties who have appeared in this action as well

as the Clerk of the Circuit Court of Harrison County and this Courts Reporter

Page 31 of32

Subsequent thereto such appealing party must comply with Rules 5(f) and 5(g) of the

West Virginia Rules ofAppellate Procedure

Upon these rulings this Court hereby ORDERSmiddot that this civil action be and is

DISMISSED WITH PREJUDICE

Finally this Court DIRECTS the Clerk of this Court to DELIVER or otherwise

PROVIDE certified copies of this FINAL ORDER to the following Jegal counsel of record

and upon so doing REMOVE this matter from its active docket

Wiley Newbold Esq The Law Office of Wiley Newbold 2006 White Day Creek Morgantown WV 26508 Counsel for PetitionerlDefendant

Helen Campbell Altmeyer Esq Assistant United States Attorney Post Office Box 591 Wheeling VW 26003 Counsel for Federal Respondents -Loretta Lynch Esq U S Atty Genl William J Ihlenfeld II Esq

U S Atty for WV Northern Dist United States Immigration and

Customs Enforcement (ICE)

Andrea L Roberts Esq Harrison County Courthouse 301 West Main Street Clarksburg WV 26301 Counsel for State Respondents -Patrick Morrisey Esq West Va Atty Genl Rachel Romano Esq Harr Co Pros Atty

ENTER ____-+~~~=-~__-r~~

Page 32 of32

STATE OF WEST VIRGINIA COUNTY OF HARRISON TO-WIT

I Donald L KOPIl II Clerk oftlle Fifteenth Judicial Circuit Hncllhe 18th

Family Court Circuit ofI-larrisoll County Wesl Virginia hereby certify the

foregoing to be a true copy of the ORDER entered in the above styled aCLion

on the Iff day Of_ampplusmn~___~

IN TESTIMONY VHEREOF ] hereunto sclmy hand and affix

Seal ofthe Court this IF- day or __ C1foh er= 20 Lk-

Circuit Clerk Harrison COllnty Vcst Virginia

Page 24: II - OF - West Virginia Judiciary · Immigration and Nationality Act. 2. One (I) page copy ofState ofWest Virginia v. Mykal G. Rosyth, aarrison County Magistrate One (I) page copy

in the underlying criminal matter attacking his conviction for ineffective assistance of

counsel therein

37 Even though he was advised multiple times as to having a post-conviction

option of filing such a Habeas Petition during his initial incarceration

PetitionerDefendant has not demonstrated the existence of any valid reason for having

not attacked his underlying conviction earlier upon claims of ineffective assistance of

counsel towards Mr Dyer

38 The evidentiary record sufficiently indicates to this Court that

PetitionerDefendant was certainly made aware through multiple conversations with Mr

Dyer prior to his plea hearing and sentencing hearing that if he wasnt a United States

citizen that his conviction could have adverse consequences for him due to the lack of

such citizen ry

39 PetitionerDefendants case is distinguishable from Padilla In Padilla the

defendant unequivocally informed his legal counsel that he was not a citizen of the

United States with his counsel then providing him erroneous advice by specifically

telling him that he would not be deported if he entered a guilty plea In reliance upon

that specific erroneous advice Mr Padilla pled guilty and subsequent thereto faced

deportation because of his resulting conviction

40 Quite contrary to and distinguishable from the factual circumstances in

Padilla Mr Dyer is deemed to have not given any manifestly erroneous legal advice to

PetitionerDefendant in regard to any potential deportation consequences during his

legal representation on the underlying criminal matters including the plea and

Page 24 of32

sentencing phases PetitionerDefendant neither specifically or otherwise informed Mr

Dyer of his citizenry status nor alerted him as to not being a United States citizen

41 Mr Dyer is deemed to have acted as any reasonable attorney would have

acted under the circumstances created by PetitionerDefendant during the course of his

representation He attempted multiple conversations with PetitionerlDefendant as to his

personal background only to be given general family information or evasive individual

responses That information and responses convinced Mr Dyer that Petitioner

Defendants citizenship was not an issue over which to be concerned

42 Under an objective standard of reasonableness and based upon the

evidentiary record as now further developed herein Mr Dyers pelformance as

appointed legal counsel for PetitionerDefendant in his criminal proceedings is deemed

by this Court as not being deficient

43 The underlying criminal and related domestic violence records are

deemed to provide an abundance of testimony and evidence that would have been

admitted to show PetitionerDefendants guilt if the case would have gone to trial

44 This Court previously ruled for independent reasons in part during

PetitionerDefendants post-conviction proceedings while represented by Mr Craig upon

his Motion For A New Trial Based On Newly Discovered Evidence that the testimony

of the victim and the evidence offered by the emergency responders showed sufficient

injuries to justify the count of unlawful assault to which the Defendant ultimately pled

guilty See Order Denying Defendants Motion For A New Trial caused to be entered

on December 15 2010 in Case No 10-F-34-2 on p 7 of 8 at sub-item 11d

Page 25 of32

45 Mr Dyers professional experience includes considerable legal

representation of individuals in criminal proceedings before both federal and state

courts who were not United States citizens Had PetitionerDefendant been less

evasive in responding to Mr Dyers general inquiries and more forthcoming with his

personal background information additional inquiries by Mr Dyer would have been

triggered as well as further discussions with PetitionerDefendant which would have

alerted him to non-citizen consequences and their being potentially or otherwise

adverse to his continuing physical presence in the United States

46 Any constitutional right infirmity alleged for post-conviction extraordinary

relief cannot be prefaced upon PetitionerDefendants selective memory his voluntary

failure to adequately apprise his legal counsel of pertinent personal information which

may significantly impact the resulting legal representation andor his subjective

hindsight upon discovering adverse consequences to his criminal conviction and

resulting incarceraticm

47 PetitionerDefendants testimony herein during Coram Nobis proceedings

is deemed to be lacking in sufficient credibility particularly in regard to his interaction

and discussions with Mr Dyer during the course of their lawyerclient relationship

48 Arguendo even if Mr Dyers representation and counsel was deemed to

have failed PetitionerDefendant so as to satisfy the performance deficiency

requirement under the first prong of StricklandlMiller this Court deems the prejudice

requirement under the second prong of StricklandMiller to be unsatisfactorily

demonstrated by a preponderance of the evidence now contained in and reflected by

the further developed record herein upon limited remand

Page 26 of32

49 Mr Dyer testified that he had reviewed the evidence that would have been

presented at trial had PetitionerlDefendant not pled and believed the States case to be

very strong This Court concurs as its prior rulings in post-conviction proceedings

immediately following PetitionerDefendants sentencing and incarceration in addition to

the further development of the evidentiary record herein on Petition and Remand

provide a demonstrably acceptable and objective basis for such belief

50 Such reviewed evidence includes inter alia (a) taped statements and

testimony in other proceedings of the victim (Tamara Knox) CPS worker EMS workers

and police officers (b) the victims medical records (c) a domestic violence expert (d)

records resulting testimony from related to domestic violence -proceedings in Harrison

County Family Court (e) testimony of the victims treating physician and (f)

photographs of the victims injuries16

51 Mr Dyer further contacted experts as to Tamara Knoxs credibility and

was led to believe that she wOJld be very credible on the witness stand

52 This abundant amount of testimonial and demonstrative evidence would

have been admitted and further demonstrated PetitionerDefendants guilt at trial

53 Given the strong perception of Tarama Knoxs credibility and abundant

amount of such evidence underpinning his charged criminal behavior this Court deems

that a reasonable defendant would have surely taken such into account Further

DefendantPetitioner appears to have done just this at the time of his entering into a

plea agreement which called for his pleading guilty to a felony offense of unlawful

At the Januaty 27 2009 Domestic VioJence hearing Family Court Judge Cornelia A Reep in granting a Domestic Violence Protective Order found there to be inter alia sufficient evidence of physical harm perpetrated upon the victim Tamara Knox by PetitionerlDefendant as wen as that Tamara Knox was placed in apprehension of physical harm and held against her will by PetitionerlDefendant

Page 27 of32

16

wou~ding that being a lesser included offense under the felony offense of malicious

wounding as alleged in Count One of his Indictment with the State moving to dismiss

with prejudice the remaining Counts Two Three and Four (each being a separate

felony offense of Sexual Assault in the Second Degree) contained therein

54 Furthermore had DefendantPetitioner gone to trial on all Counts as

contained in his Indictment and subsequently been convicted all thereon he would have

been sentenced inter alia as a lifetime sex off9nder for such multiple acts

55 PetitionerDefendant has not shown by a preponderance of evidence that

to-wit (a) Mr Dyer provided him with any manifestly erroneous advice as a result of his

legal counsel (b) Mr Dyers actions could be viewed objectionably as being that of any

unreasonable attorney (c) a decision to reject the plea agreement he ultimately

accepted would have been rational under the totality of circumstances involved at the

time of his plea and sentencing or (d) had he actually gone to trial rather than enter a

plea the circumstances he now faces would be different

56 PetitionerDefendant with the assistance of legal counsel has not

presented sufficient evidence on limited remand and further development of the

evidentiary record to satiSfy all four (4) prongs of the Coram Nobis test as enunciated in

Akinsade by our 4th Circuit that has b~en subsequently addressed and specifically

adopted by our State Supreme Court in Hutton

57 Finally this Court strongly recognizes that DefendanUPetitioner was inter

alia to-wit (a) originally granted parole for his underlying criminal matter on August 15

2011 (b) arrested for parole violations therein on February 15 2002 (c) released back

on parole on April 24 2012 (d) again arrested for parole violations therein on August 9

Page2S of32

2012 with his parole ultimately revoked (e) remanded to correctional custody to serve

the remainder of his original criminal sentence (f) indicted by an Ohio Grand Jury on

August 16 2012 with a bench warrant issued on September 5 2012 from Court of

Common Pleas Mahoning County Ohio upon his failure to appear for arraignment and

(g) charged with being a fugitive from justice in a Criminal Complaint filed in Magistrate

Court of Marshall County West Virginia on May 7 2013

58 It was not until May 9 2013 after all of these intervening mat