                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Larry Hayes,
Petitioner Below, Petitioner
                                                                                       FILED
vs) No. 14-0915 (Kanawha County l4-P-163)                                         September 11, 2015
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
Marvin C. Plumley, Warden, Huttonsville                                            OF WEST VIRGINIA
Correctional Center, Respondent Below,
Respondent


                               MEMORANDUM DECISION
      Petitioner Larry Hayes, appearing pro se, appeals the order of the Circuit Court of
Kanawha County, entered August 22, 2014, denying his petition for writ of habeas corpus.
Respondent Marvin C. Plumley, Warden, Huttonsville Correctional Center, by counsel Laura
Young, filed a response, and petitioner filed a reply.

        The 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.

        On September 30, 2010, petitioner had sole care of his girlfriend’s daughter,
eighteen-month-old B.M., while his girlfriend was at work. As petitioner drove to pick up his
girlfriend from work, he called her and said, “Something is wrong with B.M.” When petitioner
arrived at his girlfriend’s workplace, the girlfriend pulled B.M. out of her car seat. Blood was
coming from B.M.’s nose and mouth, and she was not breathing. Petitioner’s girlfriend began
CPR. Firemen arrived and took B.M. to the hospital where she was resuscitated and placed on a
ventilator. When it was determined that B.M. had no brain activity, her mother removed B.M. from
the ventilator. B.M. died shortly thereafter, on October 3, 2010.

        Petitioner was indicted in January of 2011 on one count of the death of a child by a parent,
guardian, or custodian by abuse in violation of West Virginia Code § 61-8D-2a(a), which provides
as follows:

       If any parent, guardian or custodian shall maliciously and intentionally inflict upon
       a child under his or her care, custody or control substantial physical pain, illness or
       any impairment of physical condition by other than accidental means, thereby
       causing the death of such child, then such parent, guardian or custodian shall be
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         guilty of a felony.

The indictment tracked the language of West Virginia Code § 61-8D-2a(a) in that it charged
petitioner with “unlawfully, feloniously, maliciously[,] and inflict[ing] upon [B.M.1], substantial
physical pain, illness[,] and impairment of physical condition by other than accidental means, and
. . . thereby caus[ing] the death of [B.M], in violation [West Virginia Code § 61-8D-2a(a)], against
the peace and dignity of the State.”

        Petitioner’s trial was held in August of 2011. The jury found petitioner guilty of the death
of a child by a parent, guardian, or custodian by abuse in violation of West Virginia Code §
61-8D-2a(a). The circuit court sentenced petitioner to a determinate term of forty years in prison,
followed by a ten-year term of supervised release. Petitioner appealed his conviction to this Court,
resulting in the issuance of a memorandum decision in State v. Hayes, No. 11-1641, 2013 WL
2149870 (W.Va. Supreme Court, May 17, 2013). In his appeal, petitioner made the following
assignments of error: (1) the trial court denied petitioner the right to compulsory process when it
refused to enforce petitioner’s subpoena of Dr. Allen Mock, West Virginia’s deputy chief medical
examiner;2 and (2) the circuit court violated petitioner’s due process right to present a complete
defense when it refused to allow his expert, Dr. Thomas Young, to give his opinion regarding Dr.
Mock’s testimony and thereby indirectly impeach that testimony. Id. at *3-4. This Court rejected
petitioner’s arguments and affirmed his conviction. Id. at *3-5.

         On April 2, 2014, petitioner filed a petition for writ of habeas corpus raising two grounds of
relief. First, petitioner alleged that trial counsel provided ineffective assistance by (a) failing to
have a statement petitioner made to the police suppressed; (b) failing to meaningfully
cross-examine Dr. Mock; (c) failing to correctly argue a post-trial motion for judgment of acquittal
based on insufficiency of evidence. Second, petitioner alleged that appellate counsel failed to raise
unspecified issues on direct appeal in Hayes. After requiring a response by respondent warden, the
circuit court entered a nineteen page order on August 22, 2014, denying the petition.

         Petitioner now appeals to this Court. We apply the following standard of review in habeas
cases:

         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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006).
         1
         Only the initials of the minor victim are used pursuant to Rule 40(e)(1) of the West
Virginia Rules of Appellate Procedure.
         2
          Dr. Mock, who has since become the chief medical examiner, testified as part of the
State’s case-in-chief and then was cross-examined by petitioner’s counsel.
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        On appeal, petitioner raises the following issues: (1) the indictment was deficient; (2) trial
counsel was ineffective because counsel failed to (a) have a statement petitioner made to the police
suppressed; (b) meaningfully cross-examine Dr. Mock due to a lack of an adequate investigation;
and (c) correctly argue a post-trial motion for judgment of acquittal based on insufficiency of
evidence; (3) appellate counsel was ineffective because of a failure to raise (a) the deficiency of the
indictment, and (b) ineffective assistance of trial counsel; and (4) the circuit court erred in denying
petitioner’s petition without holding a hearing, appointing counsel, and authorizing an investigator
and a medical expert. Respondent warden counters that the circuit court adequately rejected the
claims raised by petitioner in his habeas petition in a well-reasoned order, and that the issues
petitioner raised only on appeal lack merit.

        We agree with respondent warden and find that the circuit court’s order adequately rejected
those claims raised in the habeas petition; therefore, we address only those errors petitioner first
alleged on appeal: (1) the allegedly deficient indictment; (2) appellate counsel’s alleged failure to
raise (a) the claim regarding the indictment, and (b) ineffective assistance of trial counsel; and (3)
the circuit court’s alleged error in denying petitioner’s petition without holding a hearing,
appointing counsel, etc. We reject petitioner’s claim that the indictment was deficient. Based on
our review of the indictment, we find that it closely tracks the language of West Virginia Code §
61-8D-2a(a)—the statute under which petitioner was charged—and was, therefore, proper. See
Syl. Pt. 3, Pyles v. Boles, 148 W. Va. 465, 135 S.E.2d 692, 694 (1964).

        Second, regarding the performance of appellate counsel, we note that counsel had no
obligation to raise meritless claims. In this case, petitioner’s claim regarding the indictment lacked
merit. As explained in the circuit court’s order, petitioner’s claim that trial counsel was ineffective
also lacked merit and, therefore, the same would not have been addressed in petitioner’s direct
appeal even if it was raised. See Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 762-63, 421 S.E.2d
511, 513-14 (1992) (rarely do we address ineffective assistance claims on direct appeal).
Accordingly, petitioner’s claim regarding his appellate counsel’s performance is also without
merit.

        Finally, petitioner argues that the circuit court had a duty to provide whatever facilities and
procedures were necessary to afford petitioner an adequate opportunity to demonstrate his
entitlement to habeas relief. Respondent warden counters that in Syllabus Point 1 of Perdue v.
Coiner, 156 W.Va. 467, 194 S.E.2d 657, 658 (1973), we held 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.

As reflected by Syllabus Point 10 of Triplett, a habeas proceeding is the proper forum for litigating
claims alleging ineffective assistance of counsel; however, such claims need to be litigated only
when they have merit. In this case, we find that the circuit court correctly determined that

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petitioner’s ineffective assistance claims have no merit for reasons given in its order.3 Therefore,
we determine that the circuit court properly denied the habeas petition without holding a hearing or
granting petitioner’s other requests pursuant to Syllabus Point 1 of Perdue.

        As to the issues raised in the instant petition, we have reviewed the circuit court’s “Order
Denying Petitioner’s Petition for Habeas Corpus,” entered on August 22, 2014, and hereby adopt
and incorporate the circuit court’s well-reasoned findings and conclusions.4 The Clerk is directed
to attach a copy of the circuit court’s order to this memorandum decision.

        For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha
County and affirm its August 22, 2014, order denying petitioner’s petition for writ of habeas
corpus.

                                                                                         Affirmed.

ISSUED: September 10, 2015

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




       3
          For example, while petitioner contends that trial counsel failed to meaningfully
cross-examine Dr. Mock, we noted in Hayes that counsel’s cross-examination lasted “an hour and
a half” and covered “various issues.” 2013 WL 2149870, at *3.
       4
           Certain names have been redacted. See fn. 1, supra.

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