STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Tony Bethea, Petitioner Below, Petitioner FILED April 19, 2019 vs.) No. 18-0203 (Monongalia County 17-C-45) EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Tony Bethea, by counsel Edmund J. Rollo, appeals the Circuit Court of Monongalia County’s February 2, 2018, order denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, by counsel Julianne Wisman, filed a response.1 On appeal, petitioner argues that the circuit court erred in denying his habeas petition without affording him a hearing in regard to his claims of ineffective assistance of counsel, improper introduction of prior bad acts evidence, and Brady violation, and in concluding that his double jeopardy claim lacked merit. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. In 2002, following a jury trial, petitioner was convicted of three counts of second-degree sexual assault arising from his forced vaginal, anal, and oral intercourse with his victim. Petitioner, a recidivist, received an enhanced sentence of not less than twenty nor more than twenty-five years of incarceration for one conviction of second-degree sexual assault, and he was 1 Since the filing of the petition in this case, the superintendent at Mt. Olive Correctional Complex has changed, and the superintendent is now Donnie Ames. The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens” are now designated “superintendents.” See W. Va. Code § 15A-5-3. 1 sentenced to not less than ten nor more than twenty-five years for each remaining second-degree sexual assault convictions. Petitioner filed a direct appeal, which was refused by this Court on February 11, 2004. Petitioner, by counsel, filed a petition for a writ of habeas corpus with the circuit court on January 27, 2017. Petitioner asserted several grounds for relief, including ineffective assistance of counsel due to trial counsel’s alleged failure to call witnesses at trial, object to a photo array, and raise a defense regarding levels of consent.2 Petitioner also asserted suppression of Brady3 material, wrongful admission of evidence of prior bad acts, and violation of the Double Jeopardy Clause. Following receipt of a response from the respondent, but without holding a hearing, the habeas court denied petitioner habeas relief on February 2, 2018. The habeas court undertook a review of the records from petitioner’s underlying proceedings and concluded that petitioner was not denied effective assistance of counsel. Two witnesses whom ...
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