No. 14-0920 – Tex S. v. Karen Pszczolkowski, Warden, Northern Correction Facility

                                                                                FILED
                                                                          October 8, 2015
                                                                          RORY L. PERRY II, CLERK

                                                                        SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA

Benjamin, Justice, concurring:


              I agree with the majority’s decision to affirm the circuit court’s order

denying petitioner Tex S.’s petition for habeas corpus. I write separately to express my

concerns with regard to the reasoning used to justify affirming the circuit court’s denial

of the petition without conducting an omnibus hearing.



              Our law establishes that a court may deny a petition for writ of habeas

corpus without a hearing. Syl. pt. 1, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657

(1973) (“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.”).

We review a court’s decision to deny a habeas corpus petition without holding an

omnibus hearing for abuse of discretion. Gibson v. Dale, 173 W. Va. 681, 688, 319

S.E.2d 806, 813 (1984) ([T]he post-conviction habeas corpus statute leaves the decision

of whether to conduct an evidentiary hearing . . . in large part to the sound discretion of

the court before which the writ is made returnable.”).




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              In response to the petitioner’s argument that an omnibus hearing was

necessary, the majority reasons that the circuit court did not abuse its discretion by

deciding the petition for habeas corpus without an omnibus hearing because (1) “[i]n an

extensive twenty-eight page order the circuit court painstakingly addressed each and

every claim for habeas relief raised by the Petitioner leaving no question why it found

that an evidentiary hearing was not needed” and because (2) “the most significant witness

[petitioner’s trial counsel] could not testify regarding the decisions he made during trial.”

I disagree with the majority’s reasoning on the second point.



              The majority relies on State v. Miller, 194 W. Va. 3, 459 S.E.2d 114

(1995), to assert that “the primary purpose of an omnibus hearing is grounded in

providing the Court with evidence from ‘the most significant witness, the trial attorney,’

in order to give that individual ‘the opportunity to explain the motive and reason behind

his or her trial behavior.’” (Quoting Miller, 194 W. Va. at 14–15, 459 S.E.2d at 125–26).

I disagree with the majority’s conclusion that the primary purpose of an omnibus hearing

when reviewing an ineffective assistance of counsel claim is to hear testimony from trial

counsel. In Miller, this Court stated: “In cases involving ineffective assistance on direct

appeals, intelligent review is rendered impossible because the most significant witness,

the trial attorney, has not been given the opportunity to explain the motive and reason

behind his or her trial behavior.” 194 W. Va. at 14–15, 459 S.E.2d at 125–26. While it

follows from this language that the testimony of trial counsel in an ineffective assistance

case at an omnibus hearing allows counsel to explain his or her motive or reason behind

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his or her behavior at trial, I do not believe that it stands for the proposition that the

primary purpose of an omnibus hearing is to receive that testimony. In cases where trial

counsel is unavailable, the testimony of other witnesses on the subject of trial strategy

may be particularly probative, depending on the specific facts of those cases.



              To the extent that the majority’s reasoning may be read to imply that the

primary purpose of an omnibus hearing is automatically defeated where trial counsel is

unavailable, I disagree. It is my opinion that, while important, the availability of trial

counsel to testify at a hearing alone does not weigh for or against the need to hold an

omnibus hearing. The facts of the case determine the primary purpose for an omnibus

hearing and whether testimony from trial counsel or others is necessary. Because the facts

of the present case show that an omnibus hearing was unnecessary, I agree with the

circuit court’s decision to deny the petition for habeas corpus without holding an omnibus

hearing.




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