                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



James Drake,                                                                       FILED
                                                                                February 11, 2013
Petitioner Below, Petitioner                                                 RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

vs) No. 11-1606 (Mercer County 10-C-539)                                       OF WEST VIRGINIA




David Ballard, Warden,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner James Drake, by counsel Paul R. Cassell, appeals the Circuit Court of Mercer
County’s order entered on October 17, 2011, denying his petition for writ of habeas corpus.
Respondent Warden Ballard, by counsel Scott E. Johnson, filed a response in support of the
circuit court’s decision.

       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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        Petitioner pled guilty to two counts of first degree murder and one count of malicious
wounding, and was sentenced to two life sentences with mercy and to two to ten years of
incarceration, all to run consecutively. Petitioner filed several motions for reconsideration of his
sentence, and all were denied. Petitioner then filed a habeas petition, and counsel was appointed
to file an amended petition. The amended petition alleged an involuntary guilty plea, lack of
mental competency, excessive sentence, and a more severe sentence than anticipated. The circuit
court denied habeas relief after an omnibus hearing.

       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).



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        On appeal, petitioner argues that his counsel was ineffective in failing to fully investigate
his mental state and condition at the time of his criminal proceeding, and that counsel may have
overlooked mental health defenses. Petitioner also argues that his consecutive sentences were
disproportionate based on his young age, lack of prior criminal history, and remorse. In response,
the State argues that there was no ineffective assistance of counsel as all of the medical
professionals who examined petitioner found him criminally responsible and competent to stand
trial. The State also argues that petitioner’s sentence was not disproportionate, as he murdered
his mother and father and shot his sister. Thus, the State argues that the sentence does not shock
the conscience, is within statutory limits and therefore not subject to review.

       Our review of the record reflects no clear error or abuse of discretion by the circuit court.
Having reviewed the circuit court’s “Order Denying Petitioner’s Amended Petition for Writ of
Habeas Corpus” entered on October 17, 2011, 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 affirm the circuit court’s order.


                                                                                          Affirmed.


ISSUED: February 11, 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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