                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Banner Catlett,
Petitioner Below, Petitioner                                                     FILED
                                                                            September 6, 2016
vs) No. 15-0567 (Berkeley County 07-C-60)                                       RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Karen Pszczolkowski, Warden,
Northern Correctional Facility,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Banner Catlett, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of
Berkeley County’s May 13, 2015, order denying his petition for writ of habeas corpus.
Respondent Karen Pszczolkowski, Warden, by counsel Christopher C. Quasebarth, filed a
response.1 On appeal, petitioner alleges that the circuit court erred in denying his habeas petition
and in failing to hold an evidentiary hearing or allowing him to conduct discovery.

        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.

        Petitioner was indicted in February 1996, for the arson of his grandfather’s house. While
awaiting trial, petitioner was transported to the South Central Regional Jail at the State’s request
for a competency/criminal responsibility evaluation. Upon his return to the Eastern Regional Jail,
petitioner was released on bond.

        Approximately one month after being released on bond, petitioner entered the trailer
home of an acquaintance, Andrew Mason, and fatally shot him twice in the head. Subsequently,
petitioner was arrested for murder. While in state custody, he attempted to escape during his
arraignment on the murder charge.

       On June 4, 1997, petitioner was tried on the arson charge in Berkeley County. He was
found not guilty by reason of mental illness and was placed in Sharpe Hospital, a mental health

       1
        Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have
replaced the original respondent, David Ballard, with Karen Pszczolkowski, Warden of the
Northern Correctional Facility, because petitioner is currently incarcerated at the Northern
Correctional Facility.
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facility, for a period not to exceed twenty years. In September of 1997, petitioner escaped from
Sharpe Hospital. He was located in California one month later and was returned to West Virginia
after he waived extradition.

       In February of 1998, petitioner was indicted for the murder of Andrew Mason and for
attempted escape from a public safety officer. At trial, petitioner never disputed that he killed
Andrew Mason, but instead, claimed that he was not criminally responsible at the time of the
offense. On April 30, 1998, petitioner was found guilty of first-degree murder and attempted
escape. He was sentenced to life in prison, without mercy, for the first-degree murder conviction
and one to three years for the attempted escape.

        Subsequent to the murder conviction, the prosecutor moved the circuit court that
convicted petitioner on the arson charge to dismiss its continuing jurisdiction over petitioner so
that he could be sent immediately to the state penitentiary on the murder and attempted escape
convictions. After an evidentiary hearing on this matter, the judge who presided over the arson
trial determined that petitioner suffers from an anti-social personality and a possible drug
induced, or schizophrenia; that petitioner’s mental illness was not in an acute stage; that
petitioner had refused medication for that mental illness for the seven months leading up to the
hearing; that petitioner continued to be dangerous; that Sharpe was not a secure facility and had
no forensic unit; that the Department of Health does not maintain a secure mental health facility;
and that the placement of petitioner with the Department of Corrections would best protect the
public. Petitioner was transferred from Sharpe Hospital to the custody of the West Virginia
Department of Corrections to begin his prison sentences for convictions of first-degree murder
and attempted escape.2

        Petitioner filed an appeal arguing that the arson trial court erred when it released him to
the Department of Corrections because the circuit court had no authority to execute such a
release under West Virginia Code § 27–6A–4 (1999). By opinion entered July 14, 1999, this
Court held that the trial judge with jurisdiction over petitioner following a verdict of not guilty
by reason of insanity could release petitioner to the Department of Corrections to serve a
sentence for his murder and attempted escape convictions. See State v. Catlett, 207 W.Va. 740,
536 S.E.2d 721 (1999).

        Thereafter, petitioner filed a direct appeal from his first-degree murder conviction
arguing that there was insufficient evidence to sustain a conviction in that he was not criminally
responsible at the time of the murder and that the state failed to present sufficient evidence to
prove premeditation. Petitioner also argued that the circuit court erred in not granting his motion
for a mistrial when one of the State’s experts mentioned the existence of excluded evidence.
Finally, petitioner also urged this Court to reconsider its prior decision affirming the circuit
court’s order removing him from Sharpe Hospital and placing him in the custody of the
Department of Corrections to begin his prison sentences. This Court held that: (1) there was
substantial evidence that defendant was sane at the time of the murder; (2) the evidence
supported a finding of premeditation; (3) the State’s expert’s mention of existence of excluded
evidence did not require a mistrial; and (4) the Court would not reconsider its prior decision

       2
           However, the court did not release petitioner from its jurisdiction.
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affirming order removing the defendant from a mental health facility and placing him in the
custody of the Department of Corrections to begin his prison sentences. See State v. Catlett, 207
W.Va. 747, 536 S.E.2d 728 (2000).

        In 2013, petitioner filed a pro se petition for writ of habeas corpus, which was ultimately
dismissed without prejudice. Thereafter, the circuit court appointed petitioner counsel and
directed that an amended petition for writ of habeas corpus be filed. Subsequently, on September
23, 2014, petitioner, by counsel, filed an amended petition for writ of habeas corpus alleging
fourteen substantive grounds for relief, which also included nineteen alleged instances of
ineffective assistance of counsel. Petitioner also moved for leave to conduct discovery. By order
entered on January 7, 2015, the circuit court summarily dismissed the majority of petitioner’s
grounds for relief. However, the circuit court specifically directed respondent to file an answer
with respect to three of petitioner’s claims for relief, including five allegations that he received
ineffective assistance of counsel.3 Thereafter, respondent filed an answer and a motion to dismiss
petitioner’s remaining claims for habeas relief. Without holding a hearing, the circuit court
denied the petition for writ of habeas corpus and motion for leave to conduct discovery by order
entered on May 13, 2015. It is from this order that petitioner appeals.

       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).

       On appeal to this Court, petitioner alleges that he was entitled to further habeas
proceedings below, including an omnibus evidentiary hearing, because the circuit court could not
appropriately rule on his petition without a full evidentiary record. The Court, however, does not
agree. We have previously held that

               “[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

       3
         Respondent was specifically directed to respond to the following allegations in support
of petitioner’s amended petition for writ of habeas corpus: (1) petitioner was innocent of the
crimes of which he was convicted; (2) petitioner received ineffective assistance of counsel; and
(3) cumulative error.


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       S.E.2d 657 (1973).

Syl. Pt. 3, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). In the present matter,
petitioner simply alleges that it was error to deny his petition because he alleged several claims
of ineffective assistance of counsel, which, he argues, can only be properly decided after
conducting an evidentiary hearing. Similarly, petitioner asserts that the circuit court should have
granted his motion for discovery.

        Pursuant to Rule 9(a) of Rules Governing Post-Conviction Habeas Corpus Proceedings in
West Virginia, “the circuit court, after the answer is filed, shall, upon a review of the record, if
any, determine whether an evidentiary hearing is required.” Id., in pertinent part. Likewise, Rule
7(a) also grants circuit courts discretion to allow discovery for “good cause shown.” The clear
language of these rules gives circuit courts the discretion to hold an evidentiary hearing or permit
discovery. As the circuit court correctly determined, petitioner failed to allege any facts that
would warrant an evidentiary hearing and failed to show good cause for discovery. Indeed, the
circuit court’s order supports its finding that an evidentiary hearing was not required based upon
a thorough review of “all the briefs, exhibits, the underlying criminal case, the Petition for
Appeal, and relevant legal authority.” As such, it is clear that the circuit court did not err in
denying the petition for writ of habeas corpus.

        Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the 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 errors alleged in the petition, which were also argued below. The
circuit court’s order includes well-reasoned findings and conclusions as to the assignments of
error raised on appeal. Given our conclusion that the circuit court’s order and the record before
us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit
court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein
and direct the Clerk to attach a copy of the circuit court’s May 13, 2015, “Order Denying
Petition for Writ of Habeas Corpus and Denying Motion for Leave to Conduct Discovery” and
its January 7, 2015, “Order Summarily Dismissing Certain Grounds and Calling for
Respondents’ Limited Answer to Petition for Writ of Habeas Corpus” to this memorandum
decision.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.
ISSUED: September 6, 2016

CONCURRED IN BY:

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

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