                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Scott Boyd Burgess,                                                                  FILED
Petitioner Below, Petitioner                                                      June 17, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 17-1009 (Fayette County 17-C-212)                                           OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Scott Boyd Burgess, pro se, appeals the October 16, 2017, order of the Circuit
Court of Fayette County denying his petition for a writ of habeas corpus. Respondent Donnie
Ames, Superintendent, Mt. Olive Correctional Complex,1 by counsel Julianne Wisman, filed a
response in support of the circuit court’s order.

       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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        This case concerns the arson of a mobile home wherein petitioner was residing with eleven
other individuals, including petitioner’s ex-wife with whom he was attempting a reconciliation. In
January of 2010, petitioner was indicted on one count of first-degree arson for setting the mobile
home on fire and on one count of first-degree murder because another of the occupants, who was
inside the residence, died from smoke inhalation. Petitioner’s trial was initially scheduled for

       1
        Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.


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March 9, 2010. However, in March of 2010, petitioner’s first attorney moved for a continuance.
The circuit court rescheduled the trial for May of 2010, but the trial did not begin on that date.
Instead, between May of 2010 and April of 2011, the circuit court appointed four different
attorneys to represent petitioner. Petitioner filed motions to remove the first three of those attorneys
and to appoint substitute counsel based on his claims of ineffective assistance.2

         The fourth attorney who was appointed as counsel remained as such through the trial. In
April of 2011, petitioner’s case came on for trial. The State presented evidence that petitioner was
angry that his ex-wife decided to leave him and that he threatened to burn her belongings. The
State also presented evidence that petitioner made incriminating statements to a neighbor and a
sheriff's deputy about burning down the mobile home in which the couple was living. The jury
found petitioner guilty of first-degree murder of the mobile home resident who died from smoke
inhalation as a result of petitioner’s commission of first-degree arson. In June of 2011, the circuit
court sentenced petitioner to a life term of incarceration with the possibility of parole. In State v.
Burgess, No. 11-1094, 2012 WL 3104312, at *3 (W.Va. May 29, 2012) (memorandum decision),
this Court found that the evidence was sufficient to sustain petitioner’s conviction and affirmed
the circuit court’s judgment.

        In August of 2012, petitioner filed a petition for a writ of habeas corpus, and the circuit
court appointed habeas counsel. In December of 2013, petitioner’s counsel filed an amended
habeas petition and a Losh checklist in which petitioner raised fourteen grounds for relief: (1)
denial of the right to a speedy trial; (2) ineffective assistance of trial and appellate counsel; (3)
irregularities in arrest; (4) excessiveness or denial of bail; (5) refusal to subpoena witnesses; (6)
lack of a full public hearing; (7) constitutional errors in evidentiary rulings; (8) sufficiency of
evidence; (9) petitioner’s absence from part of the proceedings; (10) improper communications
between the prosecutor or a witness and the jury; (11) cumulative effect of numerous errors; (12)
newly discovered evidence; (13) incomplete transcript; and (14) intoxicated witnesses testifying
with knowledge of prosecution.3

        The circuit court held an omnibus habeas corpus hearing on February 10, 2014, and March
24, 2014. At the February 10, 2014, hearing, petitioner acknowledged on the record that the Losh
list was a complete and accurate reflection of those grounds for relief that petitioner wished to
assert and that he was freely, voluntarily, and with the assistance of counsel, waiving all other
grounds not asserted in the Losh list. The circuit court also heard testimony from petitioner, the
attorney who represented him at trial, and the lead investigating detective. At the March 24, 2014,
hearing, the circuit court heard the testimony of a fourth witness who testified that she observed
two witnesses drinking beer outside the courthouse during a recess in petitioner’s trial. Based on
the evidence presented, the circuit court denied habeas relief by order entered on July 2, 2014.


       2
           Petitioner’s trial was continued with each new appointed counsel.
       3
         In Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we
compiled a non-exclusive list of potential grounds that a circuit court should address with a habeas
petitioner as to whether each ground was being either waived or raised in the proceeding.
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        Petitioner appealed the circuit court’s July 2, 2014, order in Burgess v. Ballard, No. 14-
0750, 2015 WL 7628844 (W.Va. November 23, 2015) (memorandum decision). This Court found
that petitioner’s arguments on appeal were “based on his contentions that his various appointed
attorneys would not comply with his directions” and that “[t]he record is clear that these same
arguments were adjudicated below.” Id. at *2. This Court found that the circuit court did not err in
denying petitioner’s habeas petition and “adopt[ed] and incorporate[d] [the circuit court’s] well-
reasoned findings of fact and conclusions of law” and affirmed the July 2, 2014, order. Id. at *3.

        Petitioner initiated this habeas proceeding on June 7, 2017, and then filed an amended
petition on September 6, 2017, alleging that his habeas attorney had been ineffective in the first
such proceeding.4 By order entered October 16, 2017, the circuit court determined that there was
no merit to petitioner’s claim that habeas counsel failed to adequately review the Losh list with
petitioner. The circuit court found that, in the earlier proceeding, habeas counsel “informed the
[c]ourt that he had thoroughly reviewed and explained the Losh [l]ist with . . . [p]etitioner prior to
the omnibus hearing” and that, “upon inquiry by the [c]ourt, . . . [p]etitioner affirmed [h]abeas
[c]ounsel’s responses to the [c]ourt’s questioning and advised the [c]ourt that he fully understood
the concept of waiver and the purpose behind the Losh [l]ist.” (Emphasis and citations to the record
omitted.).

       More generally, the circuit court found that petitioner’s claims satisfied neither prong of
the applicable Strickland/Miller standard for evaluating ineffective assistance of counsel:

                At first blush, the [o]riginal [p]etition and [a]mended [p]etition appear quite
       lengthy, but a detailed review reveals, and the [c]ourt accordingly FINDS, that the
       vast majority of [their] content is a restatement of the exact grounds and issues
       raised and thoroughly adjudicated on the merits in the earlier habeas matter.
       [Petitioner] simply restates each of his earlier claims as put forth in his first habeas
       petition, and then essentially argues that[,] since he did not receive relief upon those
       claims, or upon appeal of this [c]ourt’s [f]inal [o]rder denying relief on those
       claims, then [h]abeas [c]ounsel’s performance must have been deficient. While it
       is clear that [petitioner] would have this [c]ourt belabor a second review of each of
       the grounds raised in the underlying habeas proceeding, the [c]ourt will not now
       revisit these same issues even though they are cloaked in an ineffective assistance
       of habeas counsel claim and put forth in this [p]etition with only slightly different
       nuances, as the [c]ourt FINDS that these issues have been fully and fairly
       adjudicated in the earlier proceeding.

       ****

               Even if this [c]ourt assumed arguendo that some of [p]etitioner’s claims had

       4
         The instant habeas petition was petitioner’s third such petition. Petitioner’s second habeas
petition was dismissed without prejudice after petitioner filed it in his first habeas proceeding, a
closed case.

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       merit and [petitioner] could establish a deficiency on the part of [h]abeas [c]ounsel,
       [p]etitioner’s claims must still fail. [Petitioner] simply cannot overcome the
       prejudice hurdle, as the claims raised by [petitioner] were thoroughly adjudicated,
       not only based upon the evidence put forth by [petitioner] and his [h]abeas
       [c]ounsel, but also upon the evidence existing in the record of the underlying
       criminal matter. Based upon the record in its entirety, this [c]ourt remains steadfast
       in its belief that, under the prejudice prong of Strickland/Miller, [petitioner] is
       unable to establish that any error on the part of [h]abeas [c]ounsel rose to the level
       of constitutional error that more likely than not would have resulted in a different
       outcome, either in the underlying habeas proceeding or on appeal to the West
       Virginia Supreme Court of Appeals.

(Emphasis and footnotes omitted.). Accordingly, the circuit court denied petitioner’s habeas
petition.

       Petitioner now appeals the circuit court’s October 16, 2017, order denying the instant
habeas petition. We review the circuit court’s order under the following standards:

       1.      “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).

       ****

       3.      “‘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.’ Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194
       S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18
       (2004).

Syl. Pts. 1 and 3, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). In West Virginia,
claims of ineffective assistance of counsel are governed by the two-pronged test established in
Strickland v. Washington, 466 U.S. 668 (1984), which requires the following: (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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
(adopting Strickland).
        On appeal, petitioner argues that he properly raised claims that his habeas attorney was
ineffective in a successive petition. See Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d
606 (1981) (holding that “[a] prior omnibus habeas corpus hearing is res judicata as to all matters
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raised and as to all matters known or which with reasonable diligence could have been known;
however, an applicant may still petition the court on the following grounds: ineffective assistance
of counsel at the omnibus habeas corpus hearing . . .”) Petitioner further argues that the circuit
court’s findings were not sufficient to support its conclusion that his ineffective assistance claims
lacked merit. See Syl. Pt. 1, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997)
(holding that West Virginia Code § 53-4A-7(c) requires a circuit court denying or granting relief
in a habeas corpus proceeding to make specific findings of fact and conclusions of law relating to
each contention raised). Finally, petitioner argues that the circuit court erred in denying his habeas
petition without a hearing or appointment of counsel. Respondent counters that the circuit court
correctly denied petitioner’s petition. We agree with respondent.

        Based on our review of petitioner’s petition, his amended petition, the circuit court’s order,
and the other documents contained in the appellate record, we find that the circuit court’s findings
were sufficient to adjudicate petitioner’s claims of ineffective assistance of habeas counsel. We
concur with the circuit court’s findings that, under the guise of ineffective assistance of counsel,
petitioner rehashed claims that were previously and finally adjudicated, and assuming arguendo
that counsel was deficient in some way, such deficiency did not change the outcome of petitioner’s
first habeas proceeding. Accordingly, we conclude that the circuit court did not abuse its discretion
in denying petitioner’s habeas petition without a hearing or appointment of counsel. See Syl. Pt.
3, Anstey, 237 W.Va. at 412, 787 S.E.2d at 865.

        For the foregoing reasons, we affirm the circuit court’s October 16, 2017, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                          Affirmed.


ISSUED: June 17, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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