                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Marlin J. McClain,
Petitioner Below, Petitioner                                                          FILED
                                                                                 September 21, 2015
                                                                                 RORY L. PERRY II, CLERK
vs) No. 14-1323 (Jackson County 13-C-69)                                       SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Marlin McClain, by counsel Kevin W. Hughart and Christen M. Justice,
appeals the Circuit Court of Jackson County’s December 5, 2014, order granting respondent’s
motion to dismiss petitioner’s petition for writ of habeas corpus. Respondent David Ballard,
Warden, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit
court erred in granting respondent’s motion for summary judgment because he was entitled to
further habeas proceedings, including an omnibus evidentiary hearing.

        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 January of 1998, petitioner was convicted of first-degree murder and sentenced to life,
without recommendation of mercy. Petitioner appealed this conviction, and the Court refused the
same by order entered on February 16, 1999. Thereafter, in May of 1999, petitioner filed his first
petition for writ of habeas corpus in the circuit court, wherein he alleged the following grounds
for relief: insufficiency of the evidence; bias; and ineffective assistance of counsel, citing little
effort to present a defense at trial. Petitioner later filed an amended petition alleging over fifty
separate grounds for relief, including numerous grounds of ineffective assistance of counsel.
Petitioner was represented by counsel during this habeas proceeding, and the circuit court held
an evidentiary hearing on the petition. The circuit court ultimately denied petitioner habeas
relief. Petitioner appealed the denial of habeas relief to this Court, which refused the same.

        In June of 2006, petitioner filed a second habeas petition in the circuit court, wherein he
alleged as a sole ground for relief that he was challenging the serology evidence from his trial.
However, in its answer, respondent noted that no serology evidence was introduced against
petitioner at trial, so the matter was dismissed.


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        Thereafter, in July of 2014, petitioner, with the assistance of counsel, filed a third habeas
petition in the circuit court, alleging ineffective assistance of counsel, prejudicial pre-trial
publicity, coerced confession, non-disclosure of grand jury minutes, prejudicial statements by the
prosecutor, and failure to prove malice and intent. The State answered the petition and moved for
summary judgment, arguing that most of the grounds raised had been explicitly ruled on in the
prior habeas proceeding and the other grounds were deemed waived. After confirming that the
petition did not allege ineffective assistance of habeas counsel, the circuit court granted
respondent’s motion and dismissed the petition. 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 it is unclear whether he
knowingly and intelligently waived any matters not raised in his first circuit court habeas
petition. The Court, however, does not agree. We have previously held that

               “[a] prior omnibus habeas corpus hearing is res judicata as to all matters
       raised and as to all matters known or which with reasonable diligence could have
       been known; however, an applicant may still petition the court on the following
       grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing;
       newly discovered evidence; or, a change in the law, favorable to the applicant,
       which may be applied retroactively.” Syllabus Point 4, Losh v. McKenzie, 166
       W.Va. 762, 277 S.E.2d 606 (1981).

Syl. Pt. 2, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). In the present matter,
petitioner does not allege that he is raising any grounds for relief that are based on allegations of
ineffective assistance of habeas counsel, newly discovered evidence, or a retroactive change in
the law favorable to him. As such, it is clear that the matters raised in his most recent habeas
petition are barred by res judicata.

        Further, petitioner misapplies our prior holdings to argue that he should have been
entitled to an omnibus evidentiary hearing. 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

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       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
       S.E.2d 657 (1973).

Id. at 731, 601 S.E.2d at 51, Syl. Pt. 3. Citing this holding, petitioner argues that he was entitled
to an omnibus hearing because he did not submit any exhibits, affidavits, or other evidence in
support of his petition. Simply put, this is an inaccurate interpretation of this holding. This
holding indicates that a circuit court may summarily deny a petition for writ of habeas corpus
based upon the petition and its supporting documentation. In this case, petitioner chose to submit
only the bald allegations in his petition and failed to provide any support therefore. As such, the
circuit court was free to summarily deny the petition upon review and determination that
petitioner was entitled to no relief. As such, we find no error in the circuit court granting
respondent’s motion for summary judgment.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: September 21, 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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