                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


Landrum R.,
Petitioner Below, Petitioner                                                         FILED
                                                                                  June 8, 2018
vs) No. 16-1095 (Marshall County 16-C-118(H))                                  EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Ralph Terry, Acting Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Landrum R.,1 by counsel Michael B. Baum, appeals the Circuit Court of
Marshall County’s October 25, 2016, order denying his petition for writ of habeas corpus.
Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, by counsel Benjamin
F. Yancey, III, filed a summary response in support of the circuit court’s order.2 Petitioner filed a
reply. Petitioner argues that the circuit court erred in summarily denying his petition for habeas
relief.

        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.

        On July 8, 2014, a Marshall County Grand Jury returned an indictment against petitioner
on fifteen counts of sexual abuse by a parent, guardian, or custodian; ten counts of first degree
sexual assault; and five counts of first degree sexual abuse. The indictment alleged that


       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
        The warden of Mt. Olive Correctional Complex has changed. The acting warden is now
Ralph Terry. The Court has made the necessary substitution of parties pursuant to Rule 41(c) of
the West Virginia Rules of Appellate Procedure.



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petitioner, who was then over the age of fifty, had sexually abused and assaulted his girlfriend’s
minor daughter.3 The abuse reportedly occurred from January of 2009 through May of 2010.4

         While petitioner initially denied the victim’s allegations and called the victim a “hateful
little girl” who knew how to work the system, he later admitted that he had sexual contact with
the victim on multiple occasions. As to each of these instances, petitioner claimed that the victim
initiated the sexual contact. Specifically, petitioner recalled that on three separate occasions, he
woke to find his hand down the front of the victim’s pants. Petitioner suggested that the victim
placed his hand down her pants. Petitioner further recalled several occasions wherein he awoke
to the victim straddling him at the waist and “grinding” on him and other instances where the
victim ran into petitioner’s bedroom and jumped on top of petitioner, straddling him at the waist.
In a series of pre-trial hearings, the circuit court addressed the voluntariness of petitioner’s
statements. By order dated December 11, 2014, the circuit court found that petitioner’s
statements occurred without coercion or duress and were freely, willingly, and voluntarily made.

        Following a one-day trial, on February 19, 2015, petitioner was convicted of each of the
thirty counts against him. At a March 20, 2015, sentencing hearing, the circuit court, sua sponte,
dismissed nine counts of the jury’s verdict (five of the sexual abuse by parent, guardian, or
custodian charges; two of the first degree sexual assault charges; and two of the first degree
sexual abuse charges).5 At the sentencing hearing, petitioner was afforded the opportunity to
speak and stated “I made a bad choice . . . I would change my choices and I apologize.” The
court enquired as to which choices the petitioner was referencing and petitioner stated, “I
wouldn’t have let her done what she done. I would have stopped it . . . I think that’s why she got
mad and she did what she did . . . to revenge on me.”

        The circuit court described petitioner’s statements as “outrageously disgusting,” and
stated “[i]t sickens me today to hear you blame this innocent child of raping you . . . You’re
blaming her, an eight-year-old little girl, for molesting you.” Thereafter, petitioner was sentenced
to a cumulative term of imprisonment of 40 to 145 years. Petitioner filed a direct appeal of his
convictions, but the appeal was withdrawn at petitioner’s request.6 In the motion to withdraw his
direct appeal, petitioner noted his recognition that the direct appeal was “his one opportunity to



       3
           At the time of the abuse, the victim was reportedly between the ages of nine and ten.
       4
         The abuse was alleged to have occurred in West Virginia and South Carolina, where the
family briefly lived. However, the only instances of abuse at issue herein are those that occurred
in West Virginia.
       5
         The circuit court found dismissal of certain counts was necessary due to insufficient
evidence.
       6
         This Court granted petitioner’s motion to withdraw his direct appeal, in State of West
Virginia v. Landrum R., Case No. 15-0354, by order dated July 23, 2015.



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appeal directly from his conviction, but upon consultation with counsel . . . believes his interests
are best served by foregoing an appeal and filing a petition for habeas corpus.”
          On July 7, 2016, petitioner, pro se, filed his first petition for writ of habeas corpus, in
which he alleged thirty-two instances of ineffective assistance of counsel of his trial and/or
appellate counsel. Petitioner contends the ineffective assistance of counsel occurred at the pre-
trial, trial, sentencing, and in his direct appeal. By order entered October 25, 2016, the circuit
court dismissed petitioner’s habeas petition. In its order, the circuit court noted that petitioner’s
habeas petition alleged “various and sundry grounds for relief.” The court found that based upon
its “complete review of the underlying criminal case file” it did not find “that probable cause
exists to believe that the petitioner may be entitled to any relief whatsoever.” Accordingly, the
circuit court denied petitioner’s habeas petition and dismissed the same. It is from the circuit
court’s October 25, 2016, order, that petitioner now appeals.

       We review a circuit court’s dismissal of a habeas petition 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.

Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). We have further held that
“[o]n an appeal to this Court the appellant bears the burden of showing that there was error in the
proceedings below resulting in the judgment of which he complains, all presumptions being in
favor of the correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 2,
Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).

        On appeal, petitioner argues that the circuit court erred in summarily denying his petition
for writ of habeas corpus without appointing counsel or holding an omnibus evidentiary hearing,
in violation of petitioner’s constitutional rights to due process and in contravention of West
Virginia Code § 53-4A-7(c).7 Conversely, respondent argues that given the circuit court’s
familiarity with the case and the breadth of evidence presented against petitioner, the circuit
court’s order denying petitioner’s writ of habeas corpus was sufficient and must be affirmed by



       7
           West Virginia Code § 53-4A-7(c), provides, in pertinent part, that

       any order entered in accordance with the provisions of this section, the court shall
       make specific findings of fact and conclusions of law relating to each contention .
       . . and grounds (in fact or law) advanced, shall clearly state the grounds upon
       which the matter was determined, and shall state whether a federal and/or state
       right was presented and decided. Any order entered in accordance with the
       provisions of this section shall constitute a final judgment, and, unless reversed,
       shall be conclusive.



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this Court. Given our review of the record before us, under the limited facts and circumstances of
this case, we agree with respondent and find no error.

        This Court has long noted that “[w]hen considering whether such a petition requesting
post-conviction habeas corpus relief has stated grounds warranting the issuance of the writs,
courts typically are afforded broad discretion.” State ex rel. Valenine v. Watkins, 208 W. Va. 26,
31, 537 S.E.2d 647, 652. In syllabus point three of Markley v. Coleman, 215 W. Va. 729, 601
S.E.2d 49 (2004), we found that

               “[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, affidavits or other documentary evidence
       filed therewith show to such court’s satisfaction that the petitioner is entitled to no
       relief.” Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657
       (1973).

        In his writ for petition of habeas corpus herein, petitioner alleges ineffective assistance of
trial and appellate counsel that caused jury bias, prosecutorial misconduct, improper use of
evidence admitted at trial pursuant to Rule 404(b) of the West Virginia Rules of Evidence, the
circuit court’s finding that petitioner’s statements were voluntary in nature, and improper
instruction of the jury. However, the circuit court did not provide specific findings of fact and
conclusions of law relating to each contention advanced by petitioner, as referenced in West
Virginia Code § 53-4A-7(c), in denying petitioner’s writ. Rather, the court stated that based upon
the “complete review of the underlying criminal case file” that “probable cause” did not exist to
believe that petition was “entitled to any relief whatsoever.”

          Here, the record reveals that the court, which denied petitioner’s writ of habeas corpus,
was intimately familiar with all facets of petitioner’s underlying criminal case, as the circuit
court judge presiding over petitioner’s criminal trial was the same judge who denied petitioner’s
petition for writ of habeas corpus. As the circuit court judge heard all of the evidence introduced
at trial, he possessed sufficient knowledge to render a decision on the merits of petitioner’s
claims without the necessity of an omnibus hearing. In fact, the circuit judge was so familiar with
the facts of the case that he, sua sponte, dismissed many of the convictions returned against
petitioner following the trial, finding that the same were unsupported by the evidence presented
at trial.8

        This Court has long held that “there is a rebuttable presumption that petitioner
intelligently and knowingly waived any contention or ground in fact or law relied on in support
of his petition for habeas corpus which he could have advanced on direct appeal but which he
failed to so advance.” Syl. Pt 1, in part, Ford v. Coiner, 156 W. Va. 362, 196 S.E.2d 91 (1972).


       8
          During the March 20, 2015, post-trial motions hearing, the circuit court judge advised
counsel that in dismissing a number of the convictions returned against petitioner that the judge
had “carefully combed through [his] copious notes that [he] took during the course of the
litigation.”


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We further held that “the burden of proof rests on petitioner to rebut the presumption that he
intelligently and knowingly waived any contention or ground for relief which theretofore he
could have advanced on direct appeal.” Syl. Pt. 2, in part, id. Here, petitioner alleges jury bias,
prosecutorial misconduct, improper use of evidence admitted at trial pursuant to Rule 404(b),
improper admission of his statements, and improper instruction of the jury. However, petitioner
did not pursue any of these claims on direct appeal. In moving to withdraw his notice of direct
appeal, petitioner noted his recognition that “this is his one opportunity to appeal directly from
his conviction, but upon consultation with counsel, [p]etitioner believes his interests are best
served by foregoing an appeal and filing a petition for habeas corpus.” Accordingly, we find that
in failing to raise these issues on direct appeal, per Ford, petitioner cannot now rely upon these
facts in support of his petition for habeas corpus.

        Under the limited facts and circumstances of this case, given the substantial evidence of
petitioner’s guilt, including the compelling testimony of his young victim, and the circuit court’s
actions in dismissing petitioner’s factually unsupported convictions, we find no error and affirm
the circuit court’s October 25, 2016, order.

                                                                                        Affirmed.

ISSUED: June 8, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis




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