                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



George H. Watts,                                                                    FILED
Petitioner Below, Petitioner                                                        May 24, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 12-0813 (Wayne County 99-C-263)                                          OF WEST VIRGINIA


David Ballard, Warden,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner George Watts’s appeal, filed by counsel D. Adrian Hoosier, arises from the
Circuit Court of Wayne County, wherein petitioner’s petition for writ of habeas corpus was
denied by order entered on July 28, 2008. Respondent David Ballard, Warden, by counsel Laura
Young, filed a response in support of the circuit court’s decision.

       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.

        In the underlying criminal proceedings, a jury convicted petitioner on various sexual
offense, robbery, and burglary charges. Petitioner’s direct appeal of these convictions was
refused. Petitioner thereafter filed his original petition for writ of habeas corpus in circuit court.
In the habeas proceedings below, petitioner argued the following grounds for relief: (1) illegally
obtained indictment, (2) insufficient evidence to support convictions, and (3) improper jury
instructions. In April of 2006, the circuit court held a hearing at which petitioner’s prior habeas
counsel confirmed the items petitioner wished to argue from the Losh list.1 In doing so,
petitioner’s prior habeas counsel clarified that petitioner did not wish to pursue a claim of
ineffective assistance of trial counsel. In May of 2006, the circuit court held an omnibus
evidentiary hearing. Following this hearing, it entered its order denying petitioner’s request for
habeas corpus relief. Petitioner appeals this order, raising only one of his original arguments
presented in circuit court and two additional arguments.

        Petitioner Watts first argues that the circuit court erred in denying him habeas corpus
relief based on his assertion that he received an improper indictment. He reiterates that, before
the circuit court, he argued that the prosecutor improperly influenced the grand jury to indict.
Petitioner further argues that, because there is not a transcript for the omnibus evidentiary
hearing, it is impossible to determine what was introduced on this matter. Accordingly, petitioner
1
 The checklist of grounds typically used in habeas corpus proceedings, commonly known as “the
Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

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concludes, there was ample evidence to introduce improper influence and the circuit court erred
in not finding such. In response, Respondent Warden Ballard argues that petitioner failed to raise
any claim concerning the indictment before trial. Respondent argues that, nevertheless, petitioner
has failed to show abuse of discretion or error by the circuit court for this issue.

        Second, petitioner argues that the circuit court erred in failing to make findings of fact
and conclusions of law with regard to his assertions that he received ineffective assistance of trial
counsel and ineffective assistance of his initial habeas counsel. Respondent contends that
petitioner waived arguments concerning ineffective assistance of trial counsel and quotes from
the hearing transcript excerpt in which the circuit court questioned counsel as to whether
petitioner wished to argue ineffective assistance of trial counsel. To this, habeas counsel replied
in the negative. With regard to petitioner’s argument that the circuit court did not address his
assertion that he received ineffective assistance of habeas counsel, respondent argues that
petitioner has failed to develop an argument addressing this claim.

        Lastly, petitioner argues that he was deprived of due process by the circuit court’s failure
to provide a copy of the transcript from the omnibus evidentiary hearing on petitioner’s petition
for writ of habeas corpus. Respondent argues that a circuit court deciding a petition for habeas
corpus is not required to hold an omnibus evidentiary hearing. Respondent further argues that,
not only is petitioner not entitled to such a hearing, but also that this transcript is not necessary to
review the circuit court’s rulings on appeal.

       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).

         The same standard for reviewing claims concerning ineffective assistance of trial counsel
applies to reviewing claims concerning ineffective assistance of habeas corpus counsel:

        In the West Virginia courts, claims of ineffective assistance of counsel are to be
        governed by the two-pronged test established in Strickland v. Washington, 466
        U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was
        deficient under an objective standard of reasonableness; and (2) there is a
        reasonable probability that, but for counsel's unprofessional errors, the result of
        the proceedings would have been different.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).



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       With regard to whether a circuit court decides on a petition for writ of habeas corpus with
or without an evidentiary hearing, we recognize the following:

       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).

        Our review of the record uncovers no error by the circuit court in denying habeas corpus
relief. The circuit court’s order reflects its thorough analysis concerning petitioner’s argument
with regard to the grand jury proceedings. The dismissal of an indictment is only appropriate if it
is established that a violation substantially influenced a grand jury’s decision to indict, or if grave
doubt exists that the decision to indict was free from the substantial influence of any such
violation. Syl. Pt. 6, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989). We
have reviewed the excerpts from the grand jury proceedings that petitioner submitted on appeal
and find no abuse of discretion or error by the circuit court in this regard. As it pertains to
petitioner’s argument concerning ineffective assistance of trial counsel and of his first habeas
counsel, we find that petitioner has failed to meet his burden of proof as directed by State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Lastly, we find no merit in petitioner’s argument
that he was entitled to an evidentiary hearing and was denied due process when he did not
receive a copy of his requested transcript. It appears that the circuit court actually did hold an
evidentiary omnibus hearing, but even if it did not, the issues petitioner raises on appeal are
reviewable without reference to this transcript. Summarily, with regard to the arguments
petitioner raises in his appeal, we find no error to warrant reversal.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

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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