                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Keith R. Jeffers,
Petitioner Below, Petitioner
                                                                                   FILED
                                                                              November 15, 2019
vs) No. 18-0510 (Kanawha County 17-P-84)                                        EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Keith R. Jeffers, pro se, appeals the May 14, 2018, order of the Circuit Court of
Kanawha County denying his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,1 by counsel Scott E. Johnson, filed a response
in support of the circuit court’s order. 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 affirming the circuit court’s orders is appropriate under Rule 21 of the
Rules of Appellate Procedure.

         Petitioner was convicted on January 28, 2008, of three counts of first-degree murder, one
count of attempted first-degree murder, one count of attempted second-degree murder, two counts
of malicious assault, and one count of burglary. With regard to the murder convictions, the jury
did not recommend mercy. Accordingly, the circuit court sentenced petitioner to three life terms
of incarceration without the possibility of parole and imposed the statutory maximum sentence for

       1
        Since the filing of the appeal in this case, the superintendent at Mt. 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.
                                                  1
each of the other counts. The circuit court ordered that petitioner serve his sentences consecutively.
Petitioner sought review of his convictions, but this Court refused his appeal on June 3, 2009. The
Supreme Court of the United States denied certiorari. See Jeffers v. West Virginia, 559 U.S. 1092
(2010).

        On May 26, 2010, petitioner filed his first petition for a writ of habeas corpus, alleging four
grounds of relief: (1) that a number of jurors were dismissed by the circuit court and the attorneys
in advance of trial without petitioner’s knowledge and without him being present; (2) that the
circuit court erred in instructing the jury with regard to evidence of flight; (3) that the circuit court
erred in failing to grant a continuance to permit the defense to locate a witness; and (4) that the
circuit court erred in making various evidentiary rulings at trial. By order entered June 11, 2010,
the circuit court denied habeas relief without a hearing, finding that the allegations regarding the
dismissal of the jurors were untrue and that the other grounds lacked merit based upon the record
before the court. Petitioner did not appeal the denial of his first habeas petition.

        On October 22, 2010, petitioner filed his second habeas petition, alleging a total of seven
grounds for relief. The first four grounds were the same four grounds that petitioner previously
raised in his first habeas proceeding. However, the final three grounds set forth in the second
habeas petition were new: (1) that the circuit court improperly interfered with the underlying
criminal case against petitioner; (2) that the prosecutor engaged in misconduct; and (3) that
petitioner’s trial counsel provided ineffective assistance. On October 25, 2010, the circuit court
denied petitioner’s second habeas petition without a hearing. Petitioner appealed the circuit court’s
October 25, 2010, order in Jeffers v. Ballard (“Jeffers I”), No. 11-0433, 2012 WL 3031055 (W.
Va. Mar. 12, 2012) (memorandum decision). This Court affirmed the denial of petitioner’s second
habeas petition.

         On February 15, 2017, petitioner filed a third habeas petition, alleging five grounds of
relief: (1) that petitioner’s trial counsel provided ineffective assistance; (2) that the prosecutor
elicited false testimony from an expert witness; (3) that the two surviving victims misidentified
petitioner as the shooter through overly suggestive photo arrays; (4) that insufficient evidence
supported petitioner’s convictions; and (5) that petitioner was denied due process at his trial
because of the cumulative effect of various errors. The circuit court first denied the petition by
order entered May 9, 2017, finding that, based on a review of the record, “[petitioner’s] contentions
of fact and law fail to adequately support his grounds for extraordinary post-conviction relief.”

        Petitioner appealed the circuit court’s May 9, 2017, order in Jeffers v. Terry (“Jeffers II”),
No. 17-0490, 2018 WL 1444292 (W. Va. Mar. 23, 2018) (memorandum decision).2 In Jeffers II,
this Court affirmed the denial of the third habeas petition as to all grounds except for ineffective
assistance of counsel. With regard to that claim, we reversed the May 9, 2017, order and remanded
the case to the circuit court “for specific findings of fact and conclusions of law as to whether



        2
            We take judicial notice of the record in Jeffers II.
                                                      2
petitioner’s ineffective assistance claim fails under the applicable Strickland/Miller standard.” Id.
at *3.3

        Following remand, the circuit court entered a comprehensive order on May 14, 2018,
setting forth specific findings of fact and conclusions of law showing that petitioner’s ineffective
assistance claim was without merit. In finding that petitioner was not entitled to habeas relief, the
court specifically determined that there was no need to hold a hearing or appoint habeas counsel.

        It is from the circuit court’s May 14, 2018, order denying his third habeas petition that
petitioner now appeals. In Syllabus Points 1 and 3 of Anstey v. Ballard, 237 W. Va. 411, 787
S.E.2d 864 (2016), we held:

       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).

        On appeal, petitioner argues that the circuit court erred in failing to hold a hearing and in
failing to appoint counsel prior to finding that his ineffective assistance claim lacked merit.
Respondent counters that the circuit court properly determined that the claim did not justify the
holding of a hearing or appointment of habeas counsel and correctly denied petitioner’s petition.
We agree with respondent.


       3
           In Syllabus Point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), we held:

                         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.
                                                    3
        In Jeffers II, we relied on our decision in State ex rel. Watson v. Hill, 200 W. Va. 201, 488
S.E.2d 476 (1997), in remanding the case for specific findings of fact and conclusions of law. In
Watson, we directed the habeas court to hold a hearing on the petitioner’s ineffective assistance
claim. Id. at 205, 488 S.E.2d at 480. However, we further indicated that a hearing might not have
been ordered if the habeas court had made findings adequate to show that the petitioner’s claim
would have failed under the Strickland/Miller standard, stating that “[i]f that was the court’s
reasoning, it should have been included in the order[.]” Id. at 204, 488 S.E.2d at 479.

        Here, in accordance with our mandate from Jeffers II, the circuit court set forth findings in
its May 14, 2018, order showing that petitioner’s ineffective assistance claim fails under the
Strickland/Miller standard. The circuit court further made the specific determination that there was
no need to hold a hearing or appoint habeas counsel. Based on our review of the record, we concur
with the circuit court’s findings. Therefore, having reviewed the circuit court’s May 14, 2018,
“Final Order Denying and Dismissing Petition for Writ of Habeas Corpus,” we hereby adopt and
incorporate the circuit court’s well-reasoned findings and conclusions, which we find address
petitioner’s assignments of error. The Clerk is directed to attach a copy of the May 14, 2018, order
to this memorandum decision. Accordingly, we conclude that the circuit court properly denied
petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s May 14, 2018, order denying
petitioner’s third petition for a writ of habeas corpus.

                                                                                          Affirmed.


ISSUED: November 15, 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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