                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Warren H.,
                                                                                        FILED
Plaintiff Below, Petitioner                                                            April 19, 2013
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.) No. 12-0324 (Raleigh County 08-C-716)                                          OF WEST VIRGINIA



David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                                MEMORANDUM DECISION

       Petitioner Warren H.,1 pro se, appeals the order of the Circuit Court of Raleigh County,
entered March 2, 2012, denying his petition for a writ of habeas corpus. The respondent warden,
by Laura Young, his attorney, filed a summary response to which petitioner 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.

        Petitioner, a friend of the family and known to the victim, threatened her with a knife and
sexually assaulted her multiple times in her home while her mother was at work. The victim was
eleven years old at the time of the incident. She suffered two cuts on her mouth from the knife.
Two of the victim’s younger siblings were also in the home. Petitioner left the home the next
morning about ten minutes before the victim’s mother was scheduled to come home from working
the night shift.

        At trial, the victim identified petitioner as her attacker. On January 11, 2006, the jury found
petitioner guilty of two counts of first degree sexual assault, battery, brandishing a deadly weapon,
kidnapping (with bodily harm inflicted and a concession having been yielded), and nighttime
burglary.
        The circuit court reconvened on January 12, 2006, so that the jury could determine whether
to recommend mercy with respect to the kidnapping conviction. Evidence was presented by both
sides. However, the jury deadlocked over whether to make a recommendation for mercy.

1
  Petitioner’s last name will not be used. See State ex rel. West Virginia Dept. of Human Services
v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (“We follow our past
practice in . . . cases which involve sensitive facts and do not utilize the last names of the parties.”).

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         At a subsequent sentencing hearing, the circuit court sentenced petitioner as follows: (1)
fifteen to thirty-five years on the first count of first degree sexual assault; (2) fifteen to thirty-five
years on the second count of first degree sexual assault; (3) six months for battery; (4) one year for
brandishing a deadly weapon; (5) life without the possibility of parole for kidnapping; and (6) one
to fifteen years for nighttime burglary. The circuit court ordered the sentences on the first degree
sexual assault convictions, battery, brandishing a deadly weapon, and nighttime burglary to run
consecutively to one another for an aggregate term of thirty-two and a half to eighty-five years in
prison. The circuit court further ordered that those sentences would run consecutive to petitioner’s
sentence of life without parole for kidnapping.

       Petitioner filed a direct appeal on August 29, 2007. Appellate counsel raised seventeen
assignments of error and was heard on the motion docket. This Court subsequently refused the
appeal by an order entered May 22, 2008. A petition for a writ of certiorari was denied by the
Supreme Court of the United States on November 17, 2008.

       On August 11, 2008, petitioner filed a petition for a writ of habeas corpus. The circuit court
appointed counsel to represent him. However, petitioner moved to proceed pro se. The circuit
court granted the motion and reappointed counsel to serve in an advisory capacity. On April 14,
2009, petitioner filed an amended petition to which the circuit court ordered a response by August
3, 2009. The respondent warden filed his response on July 24, 2009.

         Evidentiary hearings were held on June 30, 2010, and November 9, 2011. Trial counsel
testified at both hearings, and petitioner subpoenaed appellate counsel to be at the November 9,
2011 hearing. When appellate counsel did not appear, the circuit court found that he was
unavailable to be a witness because of a serious illness requiring hospitalization. Petitioner
submitted a copy of the petition for appeal that was prepared by appellate counsel into the record
without objection.

       During the first hearing, the circuit court provided petitioner with a Losh checklist so that
he could indicate thereon which grounds he was asserting and which grounds would be deemed
waived. See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). However, petitioner
declined to complete and sign the Losh checklist indicating that he did not want to waive any
possible grounds. The circuit court determined that in order to make a comprehensive decision in
the matter, “the court is compelled to address . . . all the possible contentions and prominent
grounds envisaged in Losh, as well as those specific grounds asserted by the petitioner (footnote
omitted).” In its ninety-nine page order, the circuit court addressed fifty-six possible grounds for
habeas relief and denied the petition.

        On appeal, petitioner makes numerous assignments of error including that both trial and
appellate counsel were ineffective. The respondent warden argues that most of the alleged errors
constituted nothing more than ordinary trial error and are, therefore, not cognizable in habeas
corpus. See Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979),


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cert. denied, 464 U.S. 831 (1983). The respondent warden further argues that petitioner’s claims of
ineffective assistance of counsel do not merit relief.2

        We review the circuit court’s denial of a habeas petition under an abuse of discretion
standard. See Syl. Pt. 1, in part, 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. 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.3

      For the foregoing reasons, we find no error in the decision of the Circuit Court of Raleigh
County and affirm its March 2, 2012 order dismissing petitioner’s petition.

                                                                                           Affirmed.

ISSUED: April 19, 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




2
   The respondent warden states that it was error for the circuit court to grant his motion at the
November 9, 2011 hearing that the effectiveness of appellate counsel was not a proper subject of a
habeas proceeding. The respondent warden argues the error was harmless because all the issues
petitioner alleges appellate counsel did not “properly argue” were addressed by the circuit court in
the habeas proceeding. There are three instances where the circuit court discusses appellate
counsel’s performance in its order. For example, the circuit court noted that the argument appellate
counsel developed concerning the use of petitioner’s juvenile records at trial was “the very same
issue and argument postulated by the petitioner in his Amended Petition for Writ of Habeas
Corpus.” The circuit court concluded that the fact that counsel was not successful in preventing the
juvenile records’ admission did not mean that “defense or appellate counsel’s performance was
deficient in this regard (emphasis added).” The circuit court further noted that [a]ppellate counsel .
. . argued forcefully that the use of [petitioner]’s juvenile records from Washington, D.C., . . .
constituted reversible error.” Therefore, after careful consideration, this Court does not accept the
respondent warden’s concession. See Syl. Pt. 8, State v. Julius 185 W.Va. 422, 408 S.E.2d 1
(1991). The Court does agree, however, that any such error, if committed, was harmless.
3
    Certain names have been redacted. See Footnote One.
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