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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX STEDROY A BURST CIVIL CASE NO sx 17 CV 27o Petitioner, v PETITION FOR WRIT OF HABEAS CORPUS WYNNIE TESTAMARK Director of the V I Bureau of Corrections 2021 VI Super 78U Resgondent YOHANNA MANNING ESQ KENNETH R CASE ESQ AAG 53A Company St 2d Floor V I Department of Justice Christiansted, V] 00820 34 38 Kronprindsens Gade Attorneyfor Petitioner St Thomas V I 00802 Attorneyfor Respondent BRADY DOUGLAS A Judge MEMORANDUM OPINION On April 23 2018, the Court issued Petitioner a Writ of Habeas Corpus Respondent’s Return was filed June 29, 2018, supplemented by Respondent’s Response to the Court’s Order Dated July 14 2020 ( Supplemental Return ), filed August 6 2020 ' Following appointment of present counsel, the time within which Petitioner was to file his traverse was extended to May 31, 2019 No traverse was filed by Petitioner The Court has addressed the factual background giving rise to the Petition and the procedural history herein in the April 23, 2018 Writ and the January 29, 2021 Order Setting Hearing on Habeas Corpus Relief The evidentiary hearing was held June 16, 2021 For the reasons set forth herein the Court will deny Petitioner’s habeas corpus relief by Judgment Order entered herewith Following entry of Judgment and sentencing, on May 16, 2017, Petitioner Stedroy Hurst filed a pro se Motion and Memorandum of Law in Support for Ineffective Assistance of Counsel ’ Noting that V l H C R 2(e) requires a respondent’s return to allege facts verified upon oath and that the ofiginal Return contained only representations of counsel, the July 14, 2020 Order required Respondent to supplement her Return to comply with the evidentiary standard of the Rule  SledroyA Hurst v Wynme Testamark, 8X l7-CV 270 Memorandum Opinion Page 2 of6 202] VI Super 780 (herein “Petition”) in Criminal No SX 2014 CR-00367 By Order entered June 22, 2017, the trial judge determined that Petitioner’s motion raised a claim that could only properly be presented in a collateral proceeding and directed the Clerk to open this civil action wherein Petitioner’s Motion was to be deemed his Petition seeking habeas corpus relief pursuant to 5 V I C § 1301, et seq By the Petition, Petitioner asserts that his court appointed counsel in the criminal action advised him to reject the People’s plea offer of no more than 25 years imprisonment because a better plea agreement had been personally offered to counsel by the Attorney General ofthe Virgin Islands, that would result in a sentence of not more than 15 years Petitioner rejected the original plea offer and accepted the subsequent plea agreement without reference to an agreed or recommended term of years at sentencing At sentencing, the People argued for imprisonment “for a period of 50 years With credit for time served ” Petitioner’s counsel asked for a sentence of 15 years with credit for time served 2 The trial court sentenced Petitioner to a period of imprisonment of 45 years, with 909 days credited for time served 3 Pursuant to S V l C § 1301, “Every person unlawfiilly imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint ’ The Virgin Islands Habeas Corpus Rules provide that “any person who believes that he or she is unlawfully impu'soned or detained in custody, confined under uniawfiil conditions, or otherwise unlawfully restrained of his or her liberty, may file a petition for a writ of habeas corpus to seek review of the legality of that imprisonment or detention V I H C R 2(a)(1) When presented with a petition for writ of habeas corpus, the Superior Court must first determine whether the petition states a prima facie case for relief that is, whether it states facts that, if true, would entitle the petitioner to discharge or other relief V I H C R 2(b)(l) This Court made such a determination by issuing the April 28, 2018 Writ of Habeas Corpus Issuance of the 2 Sentencing hearing transcript 8X 2014 CR 00367 April 7 2017( April 7 2017 Tr ) at 25 26 IS 16 3 Id at 30 31  StedroyA Hurst v Wynme Testamark; 8X l7 CV 270 Memorandum Opinion Page 3 of 6 202] VI Super 781! writ does not grant the ultumte relief requested but simply requires further proceedings on Petitioner’s application for discharge or other relief “The Superior Court generally must hold an evidentiary hearing after it has concluded that a petitioner has alleged a prima facie case for relief, a writ of habeas corpus has been issued, and the respondent has filed a return ” V I H C R 2(g)(1) At the June 16 2021 evidentiary heating the Court heard the parties’ proofs against and in favor of Petitioner’s impri sonment for the purpose of providing a full and fair hearing and determination of the Petition as justice of the case requires See V I H C R 2(g)(4) After considering the parties submissions and testimonial evidence presented at the hearing, the Court concludes that habeas corpus relief will be denied By his Petition, Petitioner alleges that “defense counsel’s deficient Performance [sic] caused the Defendant to reject a favorable plea bargain, which amounted to a violation of defendant’s rights [sic] to effective assistance of counsel ”4 Petitioner asserts that he is entitled to habeas relief based on his trial defense counsel’s failure to properly advise him to take the People’s initial plea offer that limited the prosecution to seeking a sentence of no more than 25 years incarceration He contends that his attomey’s ineffective assistance deprived him of an advantageous plea agreement and caused h1m to enter a plea based on “false misleading information and not of his own free will ’ 5 Pentioner’s hearing testimony was to the same effect He testified that he never wanted to take a plea, and that counsel told him to reject the first plea offer because he would get him a lesser plea His counsel pressured him into taking the second plea offer, telling him that he faced a sentence of imprisonment for life without parole if he did not take the revised plea offer Petitioner testified that his attomey told him that he would receive a [5 year sentence with the second offer He relied upon counsel’s advice to such an extent that he did not even read the plea agreement that he signed Petitioner testified that following the sentencing, counsel apologized to him, stated that ‘ Petition at 6 5 Id at 4 StedroyA Hurst v Wynme Testamarlr 5X [7 CV 270 Memorandum Opinion Page 4 of6 202] V! Super 780 the long sentence was “my fault” and that he would file a motion to allow the case to proceed to trial Petitioner also testified that he could not remember if the trial judge reviewed the executed plea agreement at the change of plea hearing and at sentencing The transcript of the sentencing hearing reveals that the judge carefully and thoroughly questioned Petitioner, advising him that he had the right to withdraw his plea and take the matter to trial At sentencing, Petitioner denied that anyone had “promise[d] you anything to go forward with this plea” and that it was his desire to “be sentenced under the plea agreement ”6 At the hearing, Petitioner explained that he had not been focused on what the judge was saying but was focused instead on the fact that he would get 15 years Respondent contests in her filings the substance of the allegations of the Petition and presented testimonial evidence at the hearing that conflicted with Petitioner’s testimony Respondent’s Supplemental Return includes the Affidavit of Assistant Attorney General Joseph N Ponteen, Esq who stated that “Hurst was never offered a plea of less than twenty five (25) years,” that “Hurst was also aware that both sides would argue their positions as to sentencing with the judge free to impose any sentence commensurate with the admitted crime, in this case Murder in the Second Degree ”7 Respondent’s hearing evidence was consistent, contradicting Petitioner’s claim that the second plea agreement contemplated a term of 15 years Petitioner’s trial co-counsel H Hannibal O’Bryan, Esq testified that he met with Petitioner on several occasions and did discuss Petitioner’s prospects for trial of the case, such that Petitioner was fitlly apprised of the People’s evidence against him and understood perfectly what counsel was saying Counsel testified that when the People presented the original plea offer, Petitioner had a problem with the People recommending a sentence of 25 years Counsel testified that he explained to Petitioner that the recommendation was only a recommendation, and that the defense could ask for a lesser sentence, and that neither ° April 7 2017 Tr at8 7 Resp Suppl Return Ponteen Affid 1 15 StedroyA Hurst v Wynnle Testamark SX 17 CV 270 Memorandum Opinion Page 5 of6 2021 VI Super 730 recommendation would bind the sentencing trial court At Petitioner’s insistence, counsel went back to the prosecutor and sought and obtained the revised agreement that eliminated any reference to a recommended term of years At the hearing, counsel adamantly claimed that there was no way that he would have told Petitioner that he would receive a 15 year sentence from the court He further testified that he dld not pressure Petitioner into taking any plea and would have willingly taken the case to trial, but that he did tell Petitioner the reality that he faced the prospect on conviction of a life sentence without possibility of parole C0unsel also firmly rejected the suggestion that he apologized to Petitioner after the sentence, testifying that he was never contnte with Petitioner Trial co counsel Yolan Brow Ross, Esq was also called to testify by the Petitioner Counsel similarly confirmed that she discussed sentencing prospects with Petitioner on more than one occasion She testified that the second plea offer was solicited because Petitioner did not want any number of years to be included within the agreement, even though counsel advised him that, if removed, the People could ask for more than 25 years Both attorneys told Petitioner that the inclusion of the recommended term of years in the agreement only bound the People, and that neither the defense nor the nial court were in any way constrained by the inclusion of that term Attorney Brow Ross testified that she did advise Petitioner to accept the original plea offer in light of the fact that his position defending the evidence against him at trial would be diffith and that he potentially faced a life sentence She confirmed that the People never agreed to any number of years less than the 25 years originally offered Counsel also stated firmly that she was satisfied that Petitioner knew all of the consequences of accepting the revised plea offer otherwise, she would not have permitted the plea to go forward “A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment Ibrahim v Gov I of Vtrgin Islands 2008 WL 901503 at *2 (V I 2008) (citing Strickland v Washington, 466 U S 668, 690 (1984)) In order to successfully raise the issue of StedrayA Hun” Wynme Testamarlt 8X l7-CV 270 Memorandum Opinion Page 6 of6 2021 VI Super 78U ineffective assistance of counsel, a defendant must prove that his counsel’s performance fell below an objective standard of reasonableness and that counsel’s performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome in the proceeding 1d “Tactical decisions about which competent counsel might disagree do not qualify as objectively unreasonable Ibrahzm 2008 WL 901503 at *2 (citing Bell v Cone 535 U S 685 702 (2002)) The evidentiary hearing was required in this case because the parties’ filings revealed factual disputes material to disposition ofthe issues raised in the Petition See V I H C R 2(g)(l) The Court finds the evidence presented by Respondent more credible than the contrary facts presented by Petitioner Petitioner’s position that he was unaware of the consequences of his plea are further refitted by the trial court s colloquy with Petitioner at sentencing Because Petitioner has failed to substantiate his claims for ineffective assistance of counsel that defense counsel advised him to reject the initial plea because the Pe0ple would agree to a plea deal with a lighter sentence than originally offered his request for habeas corpus relief will be denied Petitioner’s evidence did not support his assertions or demonstrate that defense counsel 3 performance fell below the objective standard of reasonableness and prejudiced Petitioner resulting in an unreliable or fundamentally unfair outcome in the proceeding Thus, because Petitioner has failed to demonstrate ineffective assistance of counsel, his Petition seeking habeas corpus relief on that basis is denied by Judgment Order entered herewith DATED July 26 2021 DOUGLAS A BRADY JUDGE ATTEST TAMARA CHARLES Distribution List Clerk of T curt Stedroy A Hurst Yohanna Manning Esq Kenneth R Case Esq AAG By Joseph N Ponteen Esq DAG rk Wrz: Hannibal 0 Bryan Esq TPD Yolan Brow Ross, Esq , TPD  IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX STEDROY A HURST CIVIL CASE NO SX l7-CV 270 PETITIONER V PETITION FOR WRIT OF HABEAS CORPUS WYNNIE TBSTAMARK DIRECTOR OF THE V I BUREAU OF CORRECTIONS flfiDENT JUDGMENT ORDER For the reasons set forth in the accompanying Memorandum Opinion filed herewith in this matter, it is hereby ORDERED that the relief sought by Petitioner’s Petition for Writ of Habeas Corpus is DENIED and this case is CLOSED Q flvI A DATED July 26 2021 DOUGLAS A BRADY DGE ATTEST TAMARA CHARLES Clerk of Court By Clerk-SapaaaQLSZZ