                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

David Lawrence Dixon,                                                              FILED
Petitioner Below, Petitioner                                                  December 20, 2019
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 18-0097 (McDowell County 05-C-93)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION

         Petitioner David Lawrence Dixon, pro se, appeals the January 18, 2018, order of the Circuit
Court of McDowell County denying his second petition for a writ of habeas corpus and its April
16, 2018, order reaffirming the denial of the habeas petition after a remand following the discovery
of the recording of the grand jury proceeding in petitioner’s criminal case. Respondent Donnie
Ames, Superintendent, Mt. Olive Correctional Complex,1 by counsel Shannon Frederick Kiser,
filed a summary response in support of the circuit court’s orders.

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

        In April of 1997, petitioner was convicted in the Circuit Court of McDowell County
following a jury trial of first-degree murder, first-degree sexual assault, and abduction. The circuit
court sentenced petitioner to a life term of incarceration without the possibility of parole for his



       1
        Since the filing of the appeal in this case, the superintendent at Mt. Olive Correctional
Complex has changed, and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W. Va. Code § 15A-5-3.


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murder conviction and a consecutive term of three to ten years of incarceration for his abduction
conviction.2

        After being allowed to withdraw a prior appeal, petitioner appealed his convictions on June
2, 1998. By order entered on March 9, 1999, this Court refused that appeal. On February 4, 2002,
petitioner filed a petition for a writ of habeas corpus, which the circuit court denied on May 16,
2002. On June 25, 2002, petitioner filed an appeal from the denial of that habeas petition. By order
entered on January 17, 2003, this Court refused that appeal.

        Petitioner filed a second habeas petition on April 8, 2005, which the circuit court denied
by order entered on May 11, 2005. Following petitioner’s appeal of the denial of that habeas
petition, this Court reversed the circuit court’s May 11, 2005, order on November 29, 2005, and
remanded the case to the circuit court for the appointment of counsel and an evidentiary hearing.
From December of 2005 to March of 2016, three different attorneys were appointed as habeas
counsel but were then allowed to withdraw at petitioner’s request. Petitioner also asked that he be
permitted to represent himself, which request the circuit court granted by order entered on March
29, 2016. The circuit court held the evidentiary hearing on December 28, 2016. On January 18,
2018, the circuit court entered a comprehensive order rejecting the forty-one grounds for relief set
forth in petitioner’s habeas petition and/or his Losh checklist.3 Petitioner filed an appeal of the
circuit court’s January 18, 2018, order on February 8, 2018.

        However, on or about February 15, 2018, the recording of the February 28, 1996, grand
jury proceeding that petitioner previously requested was discovered. Accordingly, the circuit court
directed the preparation of the transcript by order entered on February 15, 2018, and this Court
remanded the case for further proceedings by order entered on February 26, 2018. After remand,
by order entered on February 28, 2018, the circuit court allowed the parties an opportunity for
further briefing. While respondent did not file a brief in response to the preparation of the grand
jury transcript, petitioner filed a brief on March 26, 2018. By order entered on April 16, 2018, the
circuit court found that there was no reason to modify the January 18, 2018, order and reaffirmed
its denial of petitioner’s habeas petition. Petitioner now appeals both of the circuit court’s orders.

        In Syllabus Point 1 of Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016), we held:

               “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

       2
        The State tried petitioner under a theory of felony murder; therefore, the circuit court did
not sentence petitioner for his sexual assault conviction pursuant to Syllabus Point 8 of State v.
Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).
       3
         In Losh v. McKenzie, 166 W. Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we
compiled a nonexclusive list of potential grounds that a circuit court should address with a habeas
petitioner as to whether each ground was being either waived or raised in the proceeding.
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       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).

See also Syl. Pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975)
(holding that “[f]indings of fact made by a trial court in a post-conviction habeas corpus proceeding
will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong”).

        On appeal, petitioner argues that the circuit court erred in denying his habeas petition.
Respondent counters that petitioner’s arguments are frivolous and/or as comprising an incoherent
“amalgamation of case law and procedural rules.” We decipher petitioner’s primary arguments as
being: (1) the December 28, 2016, hearing did not constitute the evidentiary hearing to which
petitioner was entitled under this Court’s November 29, 2005, order; (2) the circuit court failed to
give petitioner an adequate opportunity to develop the record; and (3) the circuit court failed to set
forth findings of fact and conclusions of law sufficient to permit meaningful appellate review.
Based on our review of the circuit court’s January 18, 2018, and April 16, 2018, orders, we find
that the findings and conclusions contained therein were sufficient to deny petitioner’s habeas
petition. We further concur with respondent that, for the reasons set forth in the April 16, 2018,
order, the circuit court was not required to hold an additional evidentiary hearing following the
discovery of the recording of the grand jury proceeding in petitioner’s criminal case.

        Having reviewed the circuit court’s January 18, 2018, “Comprehensive Order Denying
Writ of Habeas Corpus Following Omnibus Evidentiary Hearing” and its April 16, 2018,
“Supplemental Order Following Comprehensive Order Denying Writ of Habeas Corpus Following
Omnibus Evidentiary Hearing,” we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions, which we find address petitioner’s assignments of error. The Clerk is
directed to attach a copy of each of those orders to this memorandum decision. Accordingly, we
conclude that the circuit court did not abuse its discretion in denying habeas relief.

        For the foregoing reasons, we affirm the circuit court’s January 18, 2018, order denying
petitioner’s second petition for a writ of habeas corpus and its April 16, 2018, order reaffirming
the denial of the habeas petition after a remand following the discovery of the recording of the
February 28, 1996, grand jury proceeding.
                                                                                         Affirmed.


ISSUED: December 20, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

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