                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Ronnie R.,                                                                        FILED
Petitioner Below, Petitioner
                                                                             September 5, 2017
                                                                                 RORY L. PERRY II, CLERK
vs) No. 16-0565 (Mercer County 13-C-123)                                       SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Ronnie R., by counsel Matthew Parrott, appeals the Circuit Court of Mercer
County’s May 16, 2016, order denying his petition for writ of habeas corpus.1 Respondent David
Ballard, Warden, by counsel Zachary Aaron Viglianco, filed a response. On appeal, petitioner
argues that the circuit court erred in denying his petition for writ of habeas corpus without
conducting an 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 August of 1992, petitioner was convicted of six counts of sexual assault in the first
degree, three counts of sexual assault in the second degree, and three counts of child sexual
abuse. Following these convictions, petitioner filed his first petition for writ of habeas corpus
(“first petition”). Petitioner’s first petition was denied, and the denial was affirmed upon appeal
to this Court. See Ronnie R. v. Trent, 194 W.Va. 364, 460 S.E.2d 499 (1995).

        While petitioner was incarcerated for the convictions obtained in 1992, he was charged
with one count of sexual assault in the first degree, three counts of conspiracy, one count of
sexual abuse by a parent, and one count of parent procuring and allowing sexual abuse to be
inflicted upon a child. Sometime in 1996, after a bench trial on these charges, petitioner was
convicted of sexual assault in the first degree. Petitioner filed a direct appeal of this conviction,

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
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which was upheld by this Court. State v. R[.], 199 W.Va. 660, 487 S.E.2d 318 (1997).

        Petitioner thereafter filed a second petition for writ of habeas corpus (“second petition”)
that challenged both his 1992 and 1996 convictions. The circuit court held an evidentiary hearing
on the second petition. By order entered on December 16, 2010, the circuit court denied
petitioner’s request for habeas corpus relief. On appeal to this Court, we affirmed the circuit
court’s denial of petitioner’s second petition. Ronnie R. v. Ballard, No. 11-0640, 2012 WL
3055682 (W.Va. Apr. 16, 2012)(memorandum decision).

        Petitioner filed his third petition for writ of habeas corpus (“third petition”) on April 1,
2013. By order entered on May 16, 2016, the circuit court denied petitioner’s third petition
without conducting an evidentiary hearing. The court concluded that petitioner’s third petition
attempted to re-litigate issues resolved in the prior proceedings “and [that] have been final upon
the merits for many years.” The circuit court also concluded that petitioner’s asserted claims did
not “rise to the level of a constitutional claim recognizable in habeas,” and that petitioner “failed
to meet his burden of proof.” In the instant appeal, petitioner claims that the circuit court erred in
denying his petition without a hearing, particularly on petitioner’s ineffective assistance of
counsel claim.

       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).

       In asserting that the circuit court abused its discretion in not holding an evidentiary
hearing on his third petition, petitioner urges this Court to consider his appeal in light of our
decision in Boggs v. Nohe, No. 15-1001, 2016 WL 6576891 (W.Va. Nov. 7, 2016)(memorandum
decision). In Boggs, we reversed the circuit court’s denial of Ms. Boggs’s petition for writ of
habeas corpus and remanded the case to the circuit court to conduct an evidentiary hearing on
Ms. Boggs’s ineffective assistance of counsel claims. Id. at *4. Petitioner argues that a similar
result must obtain here because he has challenged his counsel’s representation, and those
challenges should be evaluated during an evidentiary hearing.

        In addressing petitioner’s claim, we begin by noting that circuit courts are vested with the
discretion to deny petitions for writs of habeas corpus without conducting an evidentiary hearing.
Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 467, 194 S.E.2d 657, 658 (1973) (“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,

                                                  2

affidavits or other documentary evidence filed therewith show to such court’s satisfaction that
the petitioner is entitled to no relief.”); Gibson v. Dale, 173 W.Va. 681, 688, 319 S.E.2d 806, 813
(1984) (“In essence, then, the post-conviction habeas corpus statute leaves the decision of
whether to conduct an evidentiary hearing or to compel the State to produce evidence in its
possession in large part to the sound discretion of the court before which the writ is made
returnable.”). Further,

               [i]f the facts were sufficiently developed at or before trial so that
               the court can rule on the issue presented without further factual
               development, the court may, in its discretion, decline to conduct an
               evidentiary hearing during the habeas proceeding and may rule on
               the merits of the issues by reference to the facts demonstrated on
               the record.

Gibson, 173 W.Va. at 689, 319 S.E.2d at 814.

         The circuit court, following a review of all three of petitioner’s petitions, concluded that
petitioner failed to advance any grounds that were not previously litigated and resolved, that he
failed to assert constitutional claims cognizable in a habeas proceeding, and that petitioner failed
to meet his burden of proof. Petitioner asserts that his petition makes serious claims regarding
counsel’s representation, but he fails to outline these alleged claims in his brief to this Court or to
include his third petition in the appendix record.2 The circuit court’s order disposing of his
petition, however, addresses the grounds that petitioner raised. The order noted that petitioner
alleged that his trial counsel for his 1992 convictions failed to address a certain issue during the
trial and failed to retain an expert. Petitioner also asserted that his habeas counsel for his 2008
petition failed to address shortcomings in the 1992 proceedings. Petitioner also took issue with a
prior correction of his sentence that simply resolved a technical error but resulted in no change to
his effective sentence. Because these claims were either previously raised or could have been
raised in prior petitions, petitioner’s situation differs from the situation presented in Boggs. In
Boggs, Ms. Boggs’s appeal centered on the denial of her first petition for writ of habeas corpus,
whereas petitioner in this matter pursued two prior petitions and was afforded an evidentiary
hearing. Additionally, Ms. Boggs raised claims that, if supported, would have entitled her to
relief. The circuit court in this matter specifically found petitioner’s grounds to be meritless and
that he “is attempting to re-litigate issues that were previously resolved in the prior proceedings
and have been final upon the merits for many years.” Given these findings, it was not clearly
erroneous for the circuit court to deny petitioner an evidentiary hearing.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: September 5, 2017
       2
         Petitioner also claims that the circuit court’s order “merely glanced over the petitioner’s
claims of ineffective assistance of habeas counsel,” but fails to challenge or dispute any of the
circuit court’s findings that addressed petitioner’s ineffective assistance of counsel claims.

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CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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