                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


Ricky Vincent Pendleton, Petitioner
                                                                                  FILED
vs) No. 12-0653 (Berkeley County 10-C-670)                                        May 24, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
David Ballard, Warden,                                                         OF WEST VIRGINIA
Mount Olive Correctional Complex,
Respondent

                                 MEMORANDUM DECISION

       Petitioner Ricky Vincent Pendleton, by counsel Nicholas Forrest Colvin, appeals the April
26, 2012 order of the Circuit Court of Berkeley County denying his petition for writ of habeas
corpus. Respondent Ballard, by counsel Cheryl K. Saville, has filed a response and a
supplemental appendix.

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

        On May 22, 1996, petitioner was indicted on the following four felony counts:
kidnapping, malicious wounding, grand larceny, and aggravated robbery. These charges stemmed
from an incident in which petitioner and an accomplice beat Ryan Frankenberry and robbed him
of his wallet and vehicle. The beating was so severe that the victim required multiple surgeries to
correct complications from his injuries, including the insertion of numerous titanium plates and
screws in the victim’s facial bones. Following a jury trial, petitioner was found guilty on all
counts, and the jury recommended mercy in regard to his conviction for kidnapping. Petitioner
was thereafter sentenced to life imprisonment with mercy for his kidnapping conviction, a term of
incarceration of two to ten years for his conviction of malicious wounding, a period of
incarceration of one to ten years for his conviction of grand larceny, and a term of incarceration of
sixty years for his conviction of aggravated robbery. These sentences were ordered to run
consecutively to one another and consecutively to a prior federal sentence. Petitioner appealed his
convictions to this Court, which refused the same.

       In October of 2003, with the assistance of counsel, petitioner filed a petition for writ of
habeas corpus in the circuit court. This petition was dismissed because petitioner was, at the time,
serving his federal prison sentence and was, therefore, not under the circuit court’s jurisdiction in
regard to habeas relief. On March 1, 2010, petitioner filed another petition for writ of habeas
corpus. After being appointed counsel, an amended petition was filed. Thereafter, petitioner filed
two more petitions for habeas relief, and the circuit court consolidated all outstanding petitions

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under one case number, 10-C-670. Because the petitions contained material differences, the
circuit court dismissed them all and granted petitioner leave to file a single amended petition. On
April 27, 2011, with the assistance of counsel, petitioner filed his amended petition for writ of
habeas corpus. On April 26, 2012, without holding an omnibus hearing, the circuit court issued an
order denying the petition.

        On appeal, petitioner alleges that the circuit court erred in failing to hold an omnibus
evidentiary hearing in regard to his petition. According to petitioner, he has been denied due
process by the circuit court’s summary denial of his petition for writ of habeas corpus. Petitioner
argues that, while he raised multiple grounds in his petition, the main focus was on the
ineffectiveness of his trial counsel, Keith Wheaton. According to petitioner, his attorney was
disbarred following his representation of petitioner. Petitioner cites to Lawyer Disciplinary Board
v. Wheaton, 216 W.Va. 673, 610 S.E.2d 8 (2004), to argue that counsel’s serious errors in
judgment and misconduct spanned the time frame during which he represented petitioner. As
such, petitioner argues this is prima facie evidence of ineffectiveness and that the circuit court
erred in failing to fully develop his claim of ineffective assistance in an omnibus hearing.

       This Court has previously held that

       [i]n 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, 633 S.E.2d 771 (2006). Further, West Virginia
Code § 53-4A-7(a) states, in relevant part, that

       [i]f the petition [for writ of habeas corpus], affidavits, exhibits, records and other
       documentary evidence attached thereto . . . show to the satisfaction of the court
       that the petitioner is entitled to no relief, or that the contention or contentions and
       grounds (in fact or law) advanced have been previously and finally adjudicated or
       waived, the court shall enter an order denying the relief sought.

After careful consideration of the parties’ arguments, this Court concludes that the circuit court
did not abuse its discretion in denying the petition for writ of habeas corpus. Having reviewed the
circuit court’s “Final Order Denying Amended Petition” entered on April 26, 2012, we hereby
adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the
assignment of error raised in this appeal. 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 and its April
26, 2012 order denying the petition for writ of habeas corpus is affirmed.

                                                                                           Affirmed.

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ISSUED: May 24, 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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