                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State ex rel. Brandon Green,
Petitioner Below, Petitioner                                                       FILED
                                                                                February 11, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 12-0078 (Berkeley County 10-C-467)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Patrick Mirandy, Warden,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

       Petitioner Brandon Green, by counsel Christopher J. Prezioso, appeals the Circuit Court
of Berkeley County’s order entered on December 16, 2011, denying his petition for writ of
habeas corpus. Respondent Warden Mirandy1, by counsel Christopher Quasebarth, filed a
response in support of the circuit court’s decision. Petitioner has filed a reply.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was convicted by a jury of kidnapping, grand larceny, conspiracy to commit
kidnapping, conspiracy to commit grand larceny, and battery based on his involvement in a
robbery and kidnapping of a female victim. Petitioner was involved in the crimes with two co­
defendants, one of whom pled guilty to first degree robbery, grand larceny, and conspiracy to
commit grand larceny, while the other pled guilty to first degree robbery, conspiracy to commit
kidnapping and unlawful wounding. Both testified against petitioner at trial, along with other
witnesses. Petitioner filed an initial petition for writ of habeas corpus at which time he
specifically waived any claim of ineffective assistance of counsel after extensive questioning on
this issue by the circuit court. The petition was denied, and the appeal of this denial was refused
by this Court. Petitioner then filed a second petition for writ of habeas corpus, attaching a letter
from one of his co-defendants allegedly exonerating petitioner and admitting to perjury.
Petitioner argued that the newly discovered evidence entitled him to a new habeas proceeding,
and that his prior counsel was ineffective. The circuit court denied his petition for writ of habeas
corpus and petitioner appeals this denial.




1
 Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, the name of the
current public officer has been substituted as a respondent in this action.


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       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

       “In reviewing challenges to the findings and conclusions of the circuit court in a
       habeas corpus action, we apply a three-prong standard of review. We review the
       final order and the ultimate disposition under an abuse of discretion standard; the
       underlying factual findings under a clearly erroneous standard; and questions of
       law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219
       W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

       On appeal, petitioner first argues that the circuit court erred in failing to hold an
evidentiary hearing because probable cause existed to believe that petitioner was entitled to
habeas relief, and because the credibility of petitioner’s co-defendant should have been
determined after a hearing. Petitioner also argues that the letter shows that he was convicted
based upon perjured testimony. Finally, petitioner argues ineffective assistance of counsel based
upon the prior waiver of his ineffective assistance of counsel claim.

         In response, the State argues that a hearing was unnecessary and the circuit court did not
err in ruling without holding a hearing. The State also argues that the circuit court properly found
that the letter in question was not credible, and that the trial testimony corroborated the co­
defendant’s previous testimony. Finally, the State argues that petitioner knowingly waived his
ineffective assistance of counsel claim, and makes no specific allegations of ineffective
assistance that can be addressed by this Court.

       This Court has previously addressed the denial of a writ of habeas corpus without a
hearing, as follows:

       “A court having jurisdiction over habeas corpus proceedings may deny a petition
       for a writ of habeas corpus without a hearing and without appointing counsel for
       the petitioner if the petition, exhibits, affidavits or other documentary evidence
       filed therewith show to such court's satisfaction that the petitioner is entitled to no
       relief.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).

Syl. Pt. 2, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997). In the present
matter, the circuit court did not err in failing to hold an evidentiary hearing. A review of the
record presented and of the circuit court’s order shows that the circuit court properly determined,
without the necessity of a hearing, that petitioner was not entitled to relief.

        As to the other assignments of error, our review of the record reflects no clear error or
abuse of discretion by the circuit court. Having reviewed the circuit court’s “Order Denying
Second Petition for Writ of Habeas Corpus” entered on December 16, 2011, we hereby adopt
and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments
of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to
this memorandum decision.



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       For the foregoing reasons, we affirm the circuit court’s order.



                                                                         Affirmed.

ISSUED: February 11, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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