                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

James Aaron Cooper II, Petitioner Below,                                               FILED
Petitioner                                                                             May 24, 2013

                                                                                  RORY L. PERRY II, CLERK

                                                                                SUPREME COURT OF APPEALS

vs) No. 11-0929 (Cabell County 08-C-411)                                            OF WEST VIRGINIA


Ronald Casto, Administrator, Respondent Below,
Respondent

                                 MEMORANDUM DECISION

        Petitioner James Aaron Cooper II, by counsel Ronald G. Salmons, appeals the September
28, 2010 order of the Circuit Court of Cabell County denying his petition for writ of habeas
corpus. Respondent Casto, by counsel Thomas W. Rodd, has filed a response, to which petitioner
has filed a reply1.

       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 2001, petitioner was indicted on one count of attempted first degree robbery and one
count of first degree robbery. Following a jury trial in September of 2002, petitioner was found
guilty of both counts and sentenced to a term of incarceration of twenty years for attempted first
degree robbery and a term of incarceration of forty years for first degree robbery, said sentences
to run consecutively. Petitioner appealed this conviction, and the Court affirmed the same in State
v. Cooper, 217 W.Va. 613, 619 S.E.2d 126 (2005). On January 2, 2007, petitioner filed a motion
in arrest of judgment arguing that the indictment in his criminal case was defective because it
contained definitions of attempted robbery and first degree robbery that were not in effect at the
time of the crimes’ commission. Following a hearing, the circuit court upheld petitioner’s
conviction for first degree robbery but vacated his conviction for attempted first degree robbery.
Petitioner was then resentenced to serve forty years of incarceration for his conviction of first
degree robbery. Petitioner appealed this ruling, and the Court refused his appeal by order entered
on October 24, 2007. On May 9, 2008, petitioner filed the instant petition for writ of habeas
corpus; thereafter various attorneys were appointed to represent him in the circuit court. An
amended petition was filed in March of 2009, after which the circuit court denied the petition
without holding an evidentiary hearing.

       1
          The petition in this matter originally listed Teresa Waid as respondent. However,
petitioner has subsequently been incarcerated in a different facility, and the appropriate
administrator has been substituted as respondent in this matter.
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        On appeal, petitioner alleges two assignments of error. First, he alleges that the circuit
court erred in denying his petition below without first holding an evidentiary hearing to develop
his contentions, including his allegation of ineffective assistance of counsel. Citing the Fourth
Circuit Court of Appeals decision in Sheftice v. Boles, 377 F.2d 423 (4th Cir. 1967), petitioner
argues that because he alleged federal constitutional violations in his state court habeas
proceeding, the circuit court was required to grant him a full evidentiary hearing. Further,
petitioner argues that he has never had an opportunity to examine his prior counsel, and alleges
that it was error to deny him that opportunity. Additionally, petitioner asserts that his petition
raises collateral issues which have not previously been fully and fairly litigated. In his second
assignment of error, petitioner alleges that the circuit court erred in its findings of fact and
conclusions of law in the order from which he appeals. Specifically, petitioner argues that the
circuit court erred in finding that certain issues were waived and that other issues were mere
recitals and lacked development. Petitioner also argues that the circuit court erred in finding
certain contentions moot because he never had an evidentiary hearing during which to factually
develop them. According to petitioner, certain issues that the circuit court found to be fully and
fairly litigated were outside the scope of his prior appeal and therefore should have been
considered on the merits.

       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. The Court finds no merit in petitioner’s contention
that Sheftice mandates that he receive an evidentiary hearing. In fact, in quoting that decision,
petitioner omitted relevant language that is contrary to his assertion. That opinion states that “the
West Virginia statute clearly states that a matter will not be considered to have been previously
adjudicated unless there has been a full and fair hearing in the state courts, or a waiver by the
prisoner . . . .” Sheftice v. Boles, 377 F.2d 423, 427 (4th Cir. 1967) (emphasis added). In regard to
petitioner’s second assignment of error, the court finds no error in the circuit court’s findings of
fact and conclusions of law. Having reviewed the circuit court’s “Order Denying Petition For
Writ Of Habeas Corpus” entered on September 28, 2010, 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 28, 2010 order denying the petition for writ of habeas corpus is affirmed.


                                                      2
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                                        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




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