                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Jonathan David Boatwright,                                                          FILED
Petitioner Below, Petitioner                                                        May 24, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.) No. 11-1202 (Doddridge County 08-P-06)                                      OF WEST VIRGINIA


David Ballard, Warden,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

       Petitioner Jonathan Boatwright, by counsel April Conner, appeals from the “Order”
entered by the Circuit Court of Doddridge County on July 15, 2011, denying petitioner habeas
corpus relief. Respondent David Ballard, Warden of Mount Olive Correctional Complex, appears
by counsel Thomas Rodd.

       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.

        Following a jury trial, petitioner was sentenced in June of 2006 to a term of incarceration
of ten to twenty years for his conviction of one count of sexual abuse by a parent, guardian, or
custodian, a term of incarceration of fifteen to thirty-five years for his conviction of one count of
first degree sexual abuse, and a term of incarceration of five to fifteen years for incest. Petitioner
thereafter filed a direct criminal appeal which was refused by this Court. Petitioner then filed a
petition for writ of habeas corpus in the circuit court, then filed an amended petition for writ of
habeas corpus. On July 15, 2011, after hearing arguments and proffers with regard to the
petition, the circuit court denied the petition for writ of habeas corpus.

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

       “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).

                                                  1

       On appeal, petitioner argues that he was denied a prompt hearing because three years had
passed from the day he filed his petition for habeas corpus and his final hearing. Petitioner
argues that he was denied a full omnibus hearing because the circuit court did not allow live
testimony and relied on proffers from counsel with regard to the petition in violation of his due
process rights guaranteed to him by Article III, Section 10 of the West Virginia Constitution.

        In response, the State argues that petitioner has not challenged any of the reasoning,
findings, or conclusions in the circuit court’s order denying habeas relief. The State argues that
petitioner’s counsel clearly left the issue of whether the circuit court needed to take evidence
within the court’s discretion. Thus having been advised by petitioner’s counsel that it was up to
the court’s inclination whether or not to take evidence, the circuit court cannot err in then
exercising its discretion and deciding to not take evidence. Furthermore, petitioner did not
indicate what live testimony was necessary to advance his claims.

        This Court has previously addressed the denial of a writ of habeas corpus without holding
a hearing, as follows:

       “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.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).

Syl. Pt. 2, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997). In its July 15,
2011, order, the circuit court noted that it reviewed the full record in the proceeding. In the
present matter, the circuit court did not err in failing to hold an evidentiary hearing. A review of
the record presented and of the circuit court’s order shows that the circuit court properly
determined that petitioner was not entitled to relief without the necessity of a hearing.

         Next, petitioner argues the circuit court did not properly inquire regarding which claims
were being advanced and which claims were being waived. Petitioner also argues the final order
fails to address this issue and is therefore not a full and complete order pursuant to West Virginia
Code § 53-4A-7(c). The State argues this Court has never held that the failure to submit a formal
Losh List is so prejudicial to constitute ineffective assistance of counsel.

        While West Virginia Code § 53-4A-7(c) (1994) requires a circuit court order denying
relief in a habeas corpus proceeding to make specific findings of fact and conclusions of law
relating to each ground advanced by the petitioner, a remand for such findings is not always
necessary. See State v. VanHoose, 227 W.Va. 37, 50 n. 39, 705 S.E.2d 544, 557 n. 39 (2010) (per
curiam) (finding that a remand was not necessary “because the record in this case is adequately
developed.”); State ex rel. Farmer v. Trent, 209 W.Va. 789, 794 n. 3, 551 S.E.2d 711, 716 n. 3
(2001) (declining to remand for entry of a proper habeas order); State ex rel. Vernatter v.
Warden, West Virginia Penitentiary, 207 W.Va. 11, 19, 528 S.E.2d 207, 215 (1999) (“While in
most circumstances the failure to make specific findings of fact and conclusions of law regarding
an issue raised in habeas proceedings would necessitate a remand, we need not take such action
in the present case.”). In its July 15, 2011 order, the circuit court noted that petitioner raised

                                                 2

seven assignments of error. The circuit court order in regard to those seven issues is well-
reasoned and explains why petitioner was denied habeas corpus relief. This Court has never held
that failing to submit a Losh List is grounds for reversal. After careful consideration, this Court
finds that the circuit court order clearly states the grounds upon which this matter was
determined. Thus, the Court finds that all other grounds not specifically asserted by petitioner in
his underlying petition for writ of habeas corpus are forever waived except for the limited
circumstances provided for by West Virginia law.

        Finally petitioner argues that habeas counsel was ineffective because counsel did not call
witnesses to advance his claims and failed to spread on the record which claims were being
asserted and which claims were waived. Petitioner is raising counsel’s alleged ineffective
assistance for the first time on appeal. If petitioner continues to believe prior counsel was
ineffective, the preferred way of raising ineffective assistance of habeas counsel is to file a
subsequent petition for a writ of habeas corpus raising this issue in the court below. See Syl. Pt.
4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (While a prior habeas corpus
hearing is res judicata as to all matters either raised or should have been raised at the habeas
corpus hearing, “an applicant may still petition the court on the following grounds: ineffective
assistance of counsel at the omnibus habeas corpus hearing; . . . .”). Because the circuit court had
no opportunity to decide the issue of counsel’s alleged ineffective assistance, this Court will not
address the issue on appeal.

        For the foregoing reasons, we find no error in the decision of the circuit court and the
denial of petitioner’s petition for writ of habeas corpus is affirmed.


                                                                                         Affirmed.

ISSUED: May 24, 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




                                                 3

