                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


 Stoney G. Riley,                                                                   FILED
 Petitioner Below, Petitioner                                                       May 3, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
 vs.)   No. 12-0974 (Berkeley County 12-C-548)

 Evelyn Seifert, Warden, Northern Correctional Center,
 Respondent Below, Respondent

                              MEMORANDUM DECISION

       Petitioner Stoney G. Riley, pro se, appeals the order of the Circuit Court of Berkeley
County, entered August 13, 2012, summarily dismissing his petition for a writ of habeas corpus.
The respondent warden, by Christopher C. Quasebarth, her attorney, filed a response.

       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.

        In 2006, petitioner was convicted by a jury of second degree robbery and conspiracy to
commit robbery. The jury acquitted petitioner of grand larceny. Thereafter, the State brought a
recidivism charge, and another jury found that petitioner was a habitual offender. Consequently,
the circuit court sentenced petitioner to ten to eighteen years for second degree robbery and one to
five years for conspiracy to commit robbery; both sentences were ordered to run consecutively.
Petitioner’s appellate counsel filed an appeal which this Court refused on April 4, 2007.

        Petitioner filed his first petition for a writ of habeas corpus in Civil Action No. 09-C-639.
Petitioner was appointed counsel who filed an amended petition. Among other grounds for relief,
petitioner raised a claim of ineffective assistance of trial counsel asserting matters set out below.
After an initial review, the circuit court ordered an answer be filed by the respondent warden.

        The circuit court subsequently denied habeas relief determining that “there is no need for
an evidentiary hearing.” Relevant to ineffective assistance of trial counsel, the circuit court found
that a letter from petitioner’s parents supported the conclusion that counsel investigated his alibi
defense and decided not to pursue it for strategic reasons. The circuit court found that transcripts

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showed that counsel properly relayed a plea offer to petitioner. The circuit court found that
counsel’s failure to have a video surveillance tape forensically analyzed did not constitute
ineffective assistance because there was sufficient evidence to convict petitioner without the
surveillance tape. Next, the circuit court determined that counsel’s performance at trial was not
deficient. The circuit court further determined that petitioner was not prejudiced by counsel’s
failure to request the grand jury transcripts because there was no showing as to why the outcome at
trial would have been different if the transcripts would have been requested and received. The
circuit court found there was nothing to put counsel on notice that petitioner should have been
evaluated for a diminished capacity or a mental defect defense. The circuit court further found that
petitioner’s Exhibit Two refuted his claim that counsel never met with him. Lastly, the circuit court
determined that petitioner was not prejudiced by counsel’s alleged failure to explain the possibility
of a sentence enhancement because of his prior conviction. When petitioner appealed the denial of
his petition in Civil Action No. 09-C-639, this Court affirmed. See Riley v. Hoke, No. 11-0413
(W.Va. Supreme Court February 12, 2012) (memorandum decision).

        Petitioner filed his instant habeas petition—his second—in Civil Action No. 12-C-548
re-raising ineffective assistance of trial counsel. The circuit court summarily denied the petition in
an order entered August 13, 2012. After a review of the case file, the circuit court determined that
“[p]etitoner has already exhausted his right to one omnibus habeas corpus proceeding, and his
Petition is not entitled to additional habeas review.” The circuit court explained that a claim is
precluded from being raised in a subsequent habeas proceeding if it has been adjudicated in a
previous “omnibus habeas corpus proceeding,” where the petitioner has the benefit of counsel or
has waived that right. While certain grounds exist that may be raised in a subsequent proceeding,
ineffective assistance of trial counsel is not one of them. See Syl. Pt. 4, Losh v. McKenzie, 166
W.Va. 762, 277 S.E.2d 606 (1981).

       We review the circuit court’s order summarily dismissing 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).

        In arguing that this case should be remanded for further proceedings,* petitioner alludes to
the fact that an omnibus habeas proceeding sometimes includes an evidentiary hearing in addition
to appointment of counsel. See Losh. However, in denying the petition in Civil Action No.
09-C-639, including petitioner’s claim that trial counsel was ineffective, the circuit court
determined that “there is no need for an evidentiary hearing.” The circuit court made this

*
    In his response, the respondent warden argues for the circuit court’s affirmation.
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determination after appointment of counsel, an amended petition was filed and an answer filed by
the respondent warden. Therefore, after careful consideration, this Court finds that the proceeding
in Civil Action No. 09-C-639 was an omnibus habeas proceeding within the meaning of Losh.
Accordingly, under the doctrine of res judicata, petitioner is precluded from re-raising the issue of
ineffective assistance of trial counsel because it has been previously adjudicated. See Syl. Pt. 2,
Losh. This Court concludes that the circuit court did not abuse its discretion in summarily
dismissing the petition in Civil Action No. 12-C-548.

       For the foregoing reasons, we find no error in the decision of the Circuit Court of Berkeley
County and affirm its order, entered August 13, 2012, summarily dismissing the petition for a writ
of habeas corpus.

                                                                                          Affirmed.

ISSUED: May 3, 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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