                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                   FILED
Steven Mahood,                                                                 March 16, 2015
Petitioner Below, Petitioner                                                 RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA

vs) No. 14-0026 (Fayette County 12-C-330)

David Ballard, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Steven Mahood, by counsel D. Adrian Hoosier II, appeals the Circuit Court of
Jackson County’s November 20, 2013, order that denied his petition for writ of habeas corpus.
Respondent David Ballard, Warden, by counsel Christopher Dodrill, filed a response. Petitioner
filed a “Supplemental Petitioner’s Brief and Reply to Respondent’s Response.”1 On appeal,
petitioner argues that the circuit court erred in denying his motion for default judgment and his
petition for writ of habeas corpus because he received ineffective assistance of counsel.

        This 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.

        In April of 2009, a Jackson County Grand Jury indicted petitioner on the charge of the
first degree murder of his wife. Following a four-day trial, the jury convicted petitioner of first
degree murder. Thereafter, the circuit court sentenced petitioner to life in prison without mercy.

       In August of 2009, petitioner filed a direct appeal with this Court arguing that he was
denied a fair trial because the circuit court admitted inadmissible evidence about an adulterous

       1
         Petitioner filed a “Combined Motion for Leave to Clarify Claims and Petitioner’s
Second Supplemental Brief and Reply to Respondent’s Response.” Respondent filed a
“Response in Opposition to Petitioner’s Combined Motion for Leave to Clarify Claims and
Petitioner’s Second Supplemental Brief and Reply.” This Court refused petitioner’s “Combined
Motion for Leave” by order entered December 15, 2014. Subsequently, petitioner also filed a
“Supplemental Petitioner’s Brief and Reply to Respondent’s Response.” By order entered
January 15, 2015, this Court on its own motion struck petitioner’s supplemental brief and reply
because it contained new assignments of error that were not originally raised by petitioner. See
Rule 10 of the West Virginia Rules of Appellate Procedure.
                                                1

affair that petitioner had with one of the State’s witnesses. By order entered October 14, 2010,
this Court affirmed the Circuit Court of Jackson County’s sentencing order. See State v. Mahood,
227 W.Va. 258, 708 S.E.2d 322 (2010).

        In December of 2010, petitioner, pro se, filed a petition for writ of habeas corpus. Several
months later, the circuit court appointed petitioner counsel. After having counsel appointed,
petitioner filed an amended petition for writ of habeas corpus arguing that he was denied his
constitutional right to a fair and impartial jury; denied his right to present a complete defense;
that he received ineffective assistance of counsel; and that he received a more severe sentence
than expected. On July 5, 2011, petitioner filed a supplemental amended petition for writ of
habeas corpus. In this petition, petitioner argued that his trial counsel failed to present evidence
and argument of mitigating circumstances during the non-bifurcated trial and prosecutorial
misconduct.

        Although still represented by counsel, petitioner, pro se, in February of 2013, filed a
document titled “supplemental claims to be added to amended petition for writ of habeas
corpus.” By order entered February 21, 2013, the circuit court directed the State to file a
response to petitioner’s supplemental amended petition within thirty days. Subsequently, the
circuit court held a status hearing, and upon petitioner’s motion, granted petitioner an additional
thirty days to file a final petition and a “Losh list” and ordered the State to file a response within
thirty days.2

        On June 18, 2013, petitioner filed a “Motion for Default Judgment” arguing that he
should be granted a new trial because the State failed to file a response to his petition for writ of
habeas corpus.3 Several hours later, the State filed its answer. Following a status hearing in July
of 2013, the circuit court entered an order setting an omnibus evidentiary hearing on petitioner’s
claim of ineffective assistance of counsel. After holding an omnibus evidentiary hearing, the
circuit court denied petitioner post-conviction habeas relief by amended order entered November
20, 2013. Petitioner now appeals to this Court.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:


       2
         The checklist of grounds typically used in habeas corpus proceedings, commonly known
as “the Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
       3
         This Court acknowledges that record reflects that while petitioner made a motion for
default judgment as to his claims against respondent, that the relief petitioner actually sought
from the circuit court was for default on the issue of whether petitioner’s conviction and
incarceration was void under the Constitution of the United States or the Constitution of this
State, not a default judgment after damages have been ascertained. Petitioner’s motion sought the
circuit court’s ruling as to petitioner illegal imprisonment. Petitioner did not seek judgment from
respondent for a sum certain. The term “default judgment” is used throughout this decision to
refer to a default, simply because the language of the circuit court’s order and petitioner’s
underlying motion uses the term “default judgment” as opposed to default. This Court
recognizes the difference between a default and default judgment.
                                                  2

               “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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        First, petitioner argues that the circuit court erred in denying him habeas relief because
respondent failed to file a timely response to his petition for writ of habeas corpus filed on April
29, 2011. Petitioner contends that he was entitled to a default judgment because respondent
failed to file its response by June 24, 2011.

        Petitioner cites no legal authority to support his argument that he was entitled to a default
judgment. “[T]he rules of procedure in criminal and civil cases do not apply in post-conviction
habeas corpus proceedings.” Gibson v. Dale, 173 W.Va. 681, 688 n.7, 319 S.E. 806, 813 n.7
(1984). This Court notes that respondent did not file a response to petitioner’s “amended
petition” by June 24, 2011, as directed by the circuit court. However, the record clearly shows
that petitioner filed a supplemental amended petition for writ of habeas corpus on July 5, 2011,
and a “supplemental claims to be added to amended petition for writ of habeas corpus” on
February 14, 2013. Petitioner’s own actions prevented respondent from filing a response to the
original petition that was filed in April of 2011. The circuit court appropriately entered two
additional scheduling orders directing respondent to file a response.4 Further, West Virginia
Code § 55-17-4(2), provides that “[j]udgment by default may not be entered against a
government agency in an action . . . .” Accordingly, we find that the circuit court did not err
denying petitioner’s request for a default judgment.

        Petitioner also re-asserts the same argument that the circuit court rejected. Petitioner
argues that he received ineffective assistance of counsel because his trial counsel failed to
investigate a diminished capacity defense. Upon our review and consideration of the circuit
court’s order, the parties’ arguments, and record submitted on appeal, we find no error or abuse
of discretion by the circuit court. Our review of the record supports the circuit court’s decision to
deny petitioner post-conviction habeas corpus relief based on the error he assigns in this appeal,
which was also argued below. Having reviewed the circuit court’s “Amended Judgment Order,”
entered November 20, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions of law as to the assignment 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 affirm.

                                                                                          Affirmed.



       4
       Respondent filed a response to petitioner’s supplemental amended petition and
supplemental claims to be added to the amended petition on June 18, 2013.
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ISSUED: March 16, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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