                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Kevin Andre Boxley,                                                                 FILED
Petitioner Below, Petitioner
                                                                                 June 15, 2015
                                                                              RORY L. PERRY II, CLERK
vs) No. 14-1006 (Jefferson County 99-F-25)                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

Scott E. Paugh, Warden,
Martinsburg Correctional Center,
Respondent Below, Respondent

                               MEMORANDUM DECISION
        Petitioner Kevin Andre Boxley, by counsel Dylan K. Batten, appeals the Circuit Court of
Jefferson County’s September 4, 2014, order denying his petition for writ of habeas corpus.
Respondent Scott E. Paugh, Warden, by counsel Brandon C.H. Sims, filed a response and a
supplemental appendix.1 On appeal, petitioner alleges that the circuit court erred in failing to
make specific findings of fact and conclusions of law, failing to state whether the grounds raised
in the amended petition were adjudicated or waived, failing to indicate whether the grounds
raised were dismissed with prejudice, and in denying the petition without holding 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 March of 1999, petitioner was convicted, by jury, of one count of fleeing an officer
and one count of aggravated robbery, now first-degree robbery. The circuit court thereafter
sentenced petitioner to a determinate term of forty years of incarceration for his conviction of
aggravated robbery and one year in the regional jail for his conviction of fleeing an officer, said
sentences to run concurrently. Petitioner thereafter filed a petition for writ of habeas corpus in
the circuit court. After petitioner filed, by counsel, an amended petition for writ of habeas
corpus, the circuit court entered an order in July of 2002 denying the petition, in part, and setting
the matter for an omnibus evidentiary hearing. The circuit court held that hearing on February 3,
2003, after which it denied the amended petition for writ of habeas corpus by order entered on

       1
         In the circuit court proceeding, the actual respondent was John J. Sheeley, Administrator
of Eastern Regional Jail where petitioner was housed at the time his petition was filed. Petitioner
has subsequently been transferred to Martinsburg Correctional Center. Pursuant to Rule 41(c) of
the West Virginia Rules of Appellate Procedure, the appropriate party has been substituted in the
style of this matter.


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April 28, 2003.

        Thereafter, petitioner filed a petition for writ of habeas corpus with this Court.
Subsequently, by order entered in October of 2005, we directed the circuit court to re-enter its
April of 2003 order denying petitioner habeas corpus relief so that petitioner could appeal the
same. The circuit court re-entered its order denying petitioner habeas relief on June 6, 2006, and
petitioner appealed the same to this Court. By order entered on February 26, 2007, we issued an
order refusing petitioner’s appeal.

        In April of 2012, petitioner filed a pro se petition for writ of habeas corpus in the circuit
court alleging that his prior habeas counsel was ineffective, that newly discovered evidence
existed concerning trial counsel’s ineffectiveness, and that an amendment to the statute under
which he was convicted was favorable to him. That petition was summarily denied by order
entered on June 21, 2012. The next month, the circuit court entered a second order summarily
denying petitioner’s renewed petition for habeas corpus, finding that the only substantive
difference between the two petitions was the respondent’s name. In the second order, the circuit
court incorporated all the findings from its June 21, 2012, order denying the petition. Thereafter,
in April of 2013, petitioner filed a motion for appointment of counsel in the underlying habeas
proceeding. Despite having twice denied the petition for writ of habeas corpus, the circuit court
granted the motion by order entered on June 12, 2013. Counsel thereafter filed an amended
petition for writ of habeas corpus alleging ineffective assistance of prior habeas counsel.
Ultimately, the circuit court entered a third order summarily denying petitioner relief on
September 4, 2014. 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).

        To begin, we find no error in the circuit court denying the amended petition for writ of
habeas corpus without first holding an omnibus evidentiary hearing. We have previously held
that a circuit court

       “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).



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Syl. Pt. 3, in part, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). According to the
record, the amended petition for writ of habeas corpus below “relie[d] upon speculation” as to
the allegations of ineffective assistance of prior habeas counsel. Specifically, the circuit court
noted that it was unclear whether the alleged misconduct of petitioner’s prior counsel “occurred
before or after [p]etitioner’s trial” and, therefore, could not appropriately find any ineffective
assistance below. Moreover, petitioner “did not attach any exhibits to supplement” the amended
petition. For these reasons, the Court finds no error in the circuit court denying the amended
petition for writ of habeas corpus without holding an omnibus evidentiary hearing.

        Finally, as to petitioner’s assignments of error regarding the sufficiency of the circuit
court’s order, we find no error in this regard. Petitioner alleges that the circuit court erred in
failing to include sufficient findings of fact; state whether the grounds raised in the amended
petition were adjudicated or waived; and indicate whether the grounds raised were dismissed
with prejudice. Upon our review, we find no error in these regards. The order on appeal is the
third order the circuit court entered denying petitioner habeas relief in regard to ineffective
assistance of habeas counsel. In the most recent order, the circuit court begins by noting that
“[t]he specific ground now raised against the [p]etitioner’s omnibus habeas counsel . . . was
addressed by this [c]ourt in [the] 2012 Order Summarily Denying Habeas Petition[.]” The circuit
court then goes on to incorporate that 2012 order by reference throughout the order on appeal.

         Upon our review of the record, it is clear that the circuit court’s prior order denying
petitioner’s prior petition for writ of habeas corpus entered on June 21, 2012, was appropriately
sufficient and contained the findings petitioner now complains are absent from the most recent
order. Specifically, the circuit court previously found that petitioner’s claim of ineffective
assistance of habeas counsel, the sole remaining claim in petitioner’s amended petition, was
dismissed without prejudice. Moreover, the 2012 order included specific findings of fact and
conclusions of law detailing why petitioner was not entitled to relief and the circuit court
specifically incorporated those findings and conclusions into the most recent order by quoting
the 2012 order. Finally, the Court finds no merit to petitioner’s allegation that the circuit court
failed to include a finding that petitioner’s claim of ineffective assistance of counsel was either
waived or fully adjudicated. Such a finding is irrelevant in light of the fact that the circuit court
summarily dismissed the claim because the evidence established that petitioner was entitled to no
relief. As such, the Court finds no error in the circuit court’s order on appeal.

       For the foregoing reasons, we affirm.
                                                                                          Affirmed.

ISSUED: June 15, 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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