                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Gary D. Martin,                                                                    FILED
Petitioner Below, Petitioner                                                    June 29, 2018
                                                                              EDYTHE NASH GAISER, CLERK
vs) No. 17-0116 (Fayette County 16-C-156-H)                                   SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


Ralph Terry, Acting Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Gary D. Martin, by counsel Kelly C. Pritt, appeals the January 17, 2017, order of
the Circuit Court of Fayette County denying his petition for writ of habeas corpus.1 Respondent
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex,2 by counsel Shannon Frederick
Kiser, filed a summary response and then a supplemental summary response in support of the
circuit court’s order. Petitioner filed a reply.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
        On April 22, 2008, a jury found petitioner guilty of two counts of first-degree murder and
one count of second-degree murder. With regard to petitioner’s first-degree murder convictions,

       1
         Although Attorney Pritt was appointed to represent petitioner in this appeal and filed a
brief on his behalf, she was later permitted to withdraw as petitioner’s counsel and petitioner was
allowed to proceed pro se. By amended scheduling order entered November 14, 2017, this Court
granted petitioner’s motion to file a supplemental brief, which was previously filed on September
28, 2017.
       2
        Since the filing of the appeal in this case, the warden at Mount Olive Correctional
Complex has changed and the acting warden is now Ralph Terry. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure.


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the jury made recommendations of mercy. On June 2, 2008, the circuit court sentenced petitioner
to two life terms of incarceration, with the possibility of parole, for his first-degree murder
convictions and to a determinate term of forty years of incarceration for his second-degree murder
conviction. The circuit court ordered that petitioner serve his sentences consecutively. Petitioner
sought review of his convictions and sentences before this Court, which refused his appeal by
order entered April 4, 2009.

         On May 27, 2016, petitioner filed a petition for writ of habeas corpus, alleging twenty-two
grounds for relief. In a comprehensive order entered January 17, 2017, the circuit court grouped
petitioner’s grounds into three categories: (1) grounds based on the actions of the prosecution; (2)
grounds based on the actions of the circuit court; and (3) grounds alleging ineffective assistance by
petitioner’s trial attorneys. The circuit court noted that “[t]he undersigned [j]udge, having presided
over . . . [p]etitioner’s underlying criminal case from arraignment, pre-trial hearings, jury trial, to
sentencing, is thoroughly familiar with all proceedings in said case.” Having carefully reviewed
the “case file, including trial transcripts,” the circuit court “conclude[d] that the relevant facts of
the case sub judice have been sufficiently and adequately developed and that the [c]ourt can now
rule upon the [p]etition as a matter of law without a hearing.” The circuit court found that
petitioner’s grounds for relief were without merit and denied his habeas petition.

      Petitioner now appeals the circuit court’s January 17, 2017, order denying habeas relief.
We apply the following standard of review in habeas appeals:

               “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.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417,
       633 S.E.2d 771 (2006).

Syl. Pt. 1, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

       On appeal, petitioner argues that the circuit court erred in denying his habeas petition
without a hearing and appointment of counsel. Respondent counters that the circuit court properly
denied the petition. We agree with respondent. As we held in syllabus point three of Anstey:

               “‘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 S.E.2d
       657 (1973).’ Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).”

237 W.Va. at 412, 787 S.E.2d at 866.
       Petitioner points out that, in State ex rel. Watson v. Hill, 200 W.Va. 201, 205, 488 S.E.2d
476, 480 (1997), we directed the circuit court to hold a hearing on a habeas petitioner’s ineffective
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assistance of trial counsel claim. However, in Watson, we indicated that a hearing might not have
been ordered if the circuit court had made findings adequate to show that petitioner’s claim would
have failed under the applicable Strickland/Miller standard for ineffective assistance,3 stating that
“[i]f that was the court’s reasoning, it should have been included in the order[.]”Id. at 204, 488
S.E.2d at 479. Here, we find that the circuit court made extensive and detailed findings
establishing that the record from the underlying criminal case was sufficiently developed to show
petitioner’s eight claims of ineffective assistance lacked merit. Therefore, we conclude that, under
the facts and circumstances of this case, a hearing on those claims was not necessary.

        Petitioner further argues that the circuit court judge who presided over his criminal case
should not have presided in his habeas proceeding given that the judge would be reviewing his
own rulings. We find that petitioner’s argument is contrary to longstanding and well-reasoned
West Virginia precedent. As we found in Hill, a judge who presided in the criminal case “is
sufficiently familiar with the underlying proceedings to determine most of the issues presented by
the [p]etitioner without a hearing.” Id. Here, we find that the circuit court noted that “[t]he
undersigned [j]udge . . . presided over . . . [p]etitioner’s underlying criminal case from
arraignment, pre-trial hearings, jury trial, to sentencing” and also carefully reviewed the “case file,
including trial transcripts.” Therefore, we conclude that there was no issue on which it was
necessary for the circuit court to hold a hearing.

       Finally, petitioner argues that the United States and West Virginia Constitutions require the
appointment of counsel in habeas cases. We reject this argument as contrary to syllabus point three
of Anstey. As the Supreme Court of the United States reiterated in Martinez v. Ryan, 566 U.S. 1, 9
(2012), as a matter of constitutional law, “there is no right to counsel in collateral proceedings.”
Therefore, we conclude that the circuit court did not abuse its discretion in denying petitioner’s
habeas petition without a hearing and appointment of counsel.

         Having reviewed the January 17, 2017, “Order,” we hereby adopt and incorporate the
circuit court’s well-reasoned findings and conclusions as to all of 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.

                                                                                            Affirmed.
ISSUED: June 29, 2018


       3
         In West Virginia, claims of ineffective assistance of counsel are governed by the
two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984), which requires the
following: (1) counsel’s performance was deficient under an objective standard of reasonableness;
and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d
114 (1995) (adopting Strickland).

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CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating.




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