                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Benny Ray Roberts,                                                                  FILED
Petitioner Below, Petitioner                                                       May 24, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 12-0782 (Mercer County 10-C-419)                                        OF WEST VIRGINIA


David Ballard, Warden, Mount Olive Correctional Complex,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner Benny Ray Roberts’s appeal, filed by counsel Ward Morgan, arises from the
Circuit Court of Mercer County, wherein petitioner’s petition for writ of habeas corpus was
denied by order entered on June 6, 2012. Respondent David Ballard, Warden, by counsel Laura
Young, 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 Rules of Appellate
Procedure.

        Following a jury trial in October of 2008, petitioner was convicted on one charge of first
degree murder and sentenced to life in prison, with mercy. Petitioner subsequently petitioned for
a writ of habeas corpus in circuit court. Following an omnibus evidentiary hearing in March of
2012, at which petitioner’s trial counsel testified, the circuit court entered its forty-nine-page
order denying petitioner habeas corpus relief. In his petition before the circuit court, petitioner
raised several different arguments. The circuit court denied petitioner habeas corpus relief. On
appeal of this order, petitioner presents only one assignment of error.

         Petitioner Roberts argues that, because his trial attorneys failed to raise the issue of his
mental retardation in their motion to suppress his January 17, 2008, statement, the habeas court
abused its discretion by finding that his trial attorneys were not ineffective. In the same vein,
petitioner argues that the trial court did not consider petitioner’s limited capacity when it entered
its suppression order. Petitioner argues that had the issue of his mental retardation been presented
to the trial court, it would have suppressed his statements. In response, Respondent Warden
asserts that one of petitioner’s trial attorneys testified at the omnibus evidentiary hearing that he
orally argued that petitioner’s mental capacity was a basis to suppress petitioner’s statements.
Respondent further highlights that the trial court had considered petitioner’s psychological
evaluation before it entered its suppression order. Under these circumstances, respondent argues
that petitioner’s trial counsel did not provide ineffective assistance of counsel.




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       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).

       The following standard is applied to claims concerning ineffective assistance of counsel:

       In the West Virginia courts, claims of ineffective assistance of counsel are to be
       governed by the two-pronged test established in Strickland v. Washington, 466
       U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (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.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

        Our review of the record uncovers no error or abuse of discretion by the habeas court in
denying habeas corpus relief to petitioner based on the argument he raises on appeal. Petitioner’s
brief on appeal states, “While the [trial] [c]ourt’s analysis was sound in regard to the issues put
before it, absent from the [c]ourt’s consideration was Mr. Roberts’[s] limited intellect.”
However, our review of the submitted suppression order indicates that the trial court did make
findings in this regard. It noted the findings made by petitioner’s examining psychologist, whose
report provided that, although petitioner has “limited intellectual potential,” he clearly possessed
the mental competency to stand trial. In the habeas order, which is confirmed by our review of
the omnibus evidentiary hearing transcript, the habeas court found that petitioner failed to raise
any new arguments concerning the statements he had previously wished to suppress. Further, as
argued by Respondent Warden Ballard, the omnibus evidentiary hearing transcript also provides
testimony from one of petitioner’s trial attorneys explaining that he orally argued the issue of
petitioner’s mental capacity, rather than in writing. In light of these circumstances and our
review of the record submitted on appeal, we find that the habeas court did not err in finding no
merit with petitioner’s argument that his trial attorneys’ performance was deficient.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.




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ISSUED: May 24, 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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