                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


Donte J. Garrett, Petitioner Below,
Petitioner                                                                        FILED
                                                                                  June 10, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 12-1133 (Kanawha County 12-MISC-98)                                SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Marvin Plumley, Warden, Huttonsville Correctional
Center, Respondent Below, Respondent

                                 MEMORANDUM DECISION

         Petitioner Donte J. Garrett, by counsel Jason D. Parmer, appeals the September 5, 2012
order of the Circuit Court of Kanawha County denying his petition for writ of habeas corpus.
Respondent Plumley, by counsel Andrew Mendelson, has filed a response, to which petitioner has
filed a reply.

       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 2005, petitioner was indicted on one count of first degree murder by a Kanawha County
Grand Jury. In March of 2007, petitioner pled guilty to one count of first degree murder and, as
part of a plea agreement, the State recommended mercy. After the plea hearing, petitioner moved
to withdraw his plea, stating that “he wasn’t happy with the plea being a first degree rather than a
second degree.” The circuit court denied petitioner’s motion to withdraw the plea and thereafter
sentenced him to life incarceration, with mercy. In May of 2009, petitioner filed a pro se petition
for writ of habeas corpus in the circuit court. Without appointing counsel or holding an omnibus
hearing, the circuit court summarily denied the petition. Petitioner appealed the denial to this
Court, which refused the same by order entered on May 21, 2010. In February of 2012, petitioner
filed a second pro se petition for writ of habeas corpus, after which the circuit court appointed
counsel to represent petitioner. An amended petition for writ of habeas corpus was filed with the
assistance of counsel. Thereafter, the circuit court denied the petition without holding an omnibus
hearing.

        On appeal, petitioner alleges that the circuit court erred in summarily denying his petition
below. According to petitioner, the circuit court did not have an adequate record to make a
determination on his claims of ineffective assistance of counsel without holding a hearing. Citing
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), petitioner argues that he is entitled to
an omnibus hearing in which to seek collateral relief, especially for his claims of ineffective
assistance of counsel. Additionally, petitioner provides a summation of testimony he contends

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supports his claims that he would provide if allowed an omnibus hearing, including his assertions
that counsel below informed him he would be incarcerated for only fifteen years if he accepted
the plea agreement and failed to inform him of a possible diminished capacity defense. Further,
petitioner argues that the circuit court failed to satisfy its statutory obligation to include specific
findings of fact and conclusions of law in the order denying his petition that related to each of the
contentions raised in his petition.

       This Court has previously held that

       [i]n 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). After careful consideration
of the parties’ arguments, this Court concludes that the circuit court did not abuse its discretion in
denying the petition for writ of habeas corpus, especially in light of the following:

       “A court having jurisdiction over habeas corpus proceedings may deny a petition
       for a writ of habeas corpus without a hearing . . . 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. 3, in part, Marley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). As set forth by the
circuit court, petitioner is unable to satisfy the burden necessary to prove ineffective assistance of
counsel as required by Strickland v. Washington, 466 U.S. 668 (1984). Having reviewed the
circuit court’s “Order Denying Petitioner’s Petition For Writ Of Habeas Corpus” entered on
September 5, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned findings
and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach
a copy of the circuit court’s order to this memorandum decision.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 5, 2012 order denying the petition for writ of habeas corpus is affirmed.

                                                                                             Affirmed.
ISSUED: June 10, 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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