                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



Benny Ray Roberts,                                                                  FILED
Petitioner Below, Petitioner
                                                                              September 23, 2016
                                                                                  RORY L. PERRY II, CLERK
vs) No. 16-0120 (Mercer County 16-C-1)                                          SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

David Ballard, Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Benny Ray Roberts, pro se, appeals two orders of the Circuit Court of Mercer
County. In the first order, entered January 6, 2016, the circuit court denied petitioner’s petition for
a writ of habeas corpus. In the second order, entered January 13, 2016, the circuit court denied
petitioner’s motion for appointment of appellate counsel. Respondent David Ballard, Warden, Mt.
Olive Correctional Complex, by counsel Zachary Aaron Viglianco and Josiah Kollmeyer,1 filed a
response.2

        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.


       1
        Mr. Kollmeyer is a law student certified to practice law under supervision pursuant to
Rule 10 of the West Virginia Rules for Admission to the Practice of Law.
       2
         On June 10, 2016, respondent also filed a motion to strike petitioner’s brief on the ground
that it was filed by an inmate legal aide on petitioner’s behalf. On June 17, 2016, petitioner filed a
response. Upon our review of petitioner’s brief, we find that petitioner’s signature appears on the
last page of the brief and on the certificate of service. Accordingly, we deny respondent’s motion
to strike.

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       Following a jury trial in October of 2008, petitioner was convicted of first degree murder.
The jury made a recommendation of mercy. Accordingly, petitioner was sentenced to a life term of
incarceration with the possibility of parole after fifteen years.

       Petitioner subsequently filed a petition for a writ of habeas corpus and was provided an
omnibus evidentiary hearing on March 2, 2012. At the conclusion of that hearing, the circuit court
asked petitioner if there were any additional grounds for relief he wanted to raise:

       THE COURT: . . . Now the, uh, when the . . . after you filed your petition the Court
       appointed [petitioner’s counsel] to represent you he sat down with you and went
       over a list with you up at the prison, do you remember that?[3]

       [PETITIONER]: Yes, sir, but I don’t remember what he wrote because I can’t read
       you know that.


       THE COURT: I understand you can’t read but he went over that list with you. Do

       you remember that?


       [PETITIONER]: Yes, sir.


       THE COURT: And when he filled that list out he was discussing these issues with

       you, is that right?


       [PETITIONER]: Yes, sir.


       THE COURT: And that’s your signature at the end and you ended up signing that.

       Like I said—


       [PETITIONER]: Yeah.


       THE COURT: —he read it to you and you signed it?


       [PETITIONER]: Yes, sir.


       THE COURT: Alright. And that can . . . that contains all the grounds and all the

       points you want to raise with the Court, is that right?


       [PETITIONER]: Yes, sir.



       3
         Every habeas petitioner fills out a Losh checklist of the grounds for relief he or she wants
to raise and those grounds he or she wants to waive. See Losh v. McKenzie, 166 W.Va. 762,
768-770, 277 S.E.2d 606, 611-12 (1981).

                                                 2
       Following the March 2, 2012, hearing, the circuit court denied petitioner habeas relief by
order entered on June 6, 2012. Petitioner appealed that order in Roberts v. Ballard, No. 12-0782,
2013 WL 2300943, at *2 (W.Va. May 24, 2013) (memorandum decision), and this Court affirmed
the denial of that relief.

        On January 4, 2016, petitioner filed a second habeas petition alleging that his attorney in
Roberts was ineffective because there were grounds for relief that petitioner was not aware, of
which he contended should have been raised. The circuit court denied the petition by an order
entered January 6, 2016. First, the circuit court found that, based on the March 2, 2012, hearing
transcript, any issue not raised at that hearing was “knowingly and intelligently waived[.]” Second,
the circuit court found that the March 2, 2012, hearing transcript further established that
petitioner’s attorney discussed the Losh checklist with him and that petitioner had the opportunity
to articulate “any other possible claims of unfairness or error that may have occurred in the
underlying criminal proceedings.”4 (footnote omitted) Accordingly, the circuit court concluded
that petitioner’s attorney in his first habeas proceeding was not ineffective under the
Strickland/Miller standard.5

        Following the denial of his habeas petition, petitioner filed a motion for appointment of
appellate counsel. In a January 13, 2016, order, the circuit court denied the motion pursuant to
West Virginia Code § 53-4A-4(a) on the ground that any grounds for appeal would lack merit.6
Petitioner subsequently sought review of the circuit court’s orders. On April 19, 2016, petitioner
filed a motion to have this Court appoint him appellate counsel. By order entered April 27, 2016,
we denied that motion.

       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.

       4
           See fn.3, supra.
       5
        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): (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).
       6
        West Virginia Code § 53-4A-4(a) constitutes a part of the West Virginia Post-Conviction
Habeas Corpus Act, West Virginia Code §§ 53-4A-1-11, and sets forth the standard for
determining whether counsel should be appointed.

                                                 3
Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). In syllabus point four of
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held, as follows:

               A prior omnibus habeas corpus hearing is res judicata as to all matters
       raised and as to all matters known or which with reasonable diligence could have
       been known; however, an applicant may still petition the court on the following
       grounds: (1) ineffective assistance of counsel at the omnibus habeas corpus
       hearing; (2) newly discovered evidence; (3) or, a change in the law, favorable to the
       applicant, which may be applied retroactively.

       On appeal, petitioner contends that the circuit court erred in declining to appoint counsel
and to hold a hearing prior to its denial of his habeas petition and, subsequently, in denying his
motion for appointment of appellate counsel.7 Respondent counters that petitioner’s argument is
contrary to well-settled law that neither a hearing nor appointment of counsel is required when a
habeas petition is frivolous. We agree with respondent.

        In syllabus point one of Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973), we held
that a court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of
habeas corpus without a hearing and without appointment of counsel “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.” See also W.Va. Code § 53-4A-3(a) (same). With regard to
petitioner’s motion for appointment of appellate counsel, West Virginia Code § 53-4A-4(a)
similarly provides that “[i]f it is determined that . . . review is being sought or prosecuted in bad
faith or the grounds assigned therefor are without merit or are frivolous, the request . . . for the
appointment of counsel shall be denied[.]” Based on our review of the hearing transcript from
petitioner’s first habeas proceeding and the record herein, we find that the record shows to our
satisfaction that petitioner is entitled to no habeas relief and that the grounds for his appeal are
frivolous.

        For the foregoing reasons, we affirm the circuit court’s January 6, 2016, order denying
petitioner’s petition for a writ of habeas corpus and its January 13, 2016, order denying petitioner’s
motion for appointment of appellate counsel.

                                                                                           Affirmed.

ISSUED: September 23, 2016



       7
         We note that, in asking us to reverse the circuit court’s January 13, 2016, order denying
his motion for appointment of appellate counsel, petitioner is requesting that we revisit our own
prior order.

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CONCURRED IN BY:

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




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