                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                   FILED
Joseph Eugene Howard,                                                         February 22, 2019
Petitioner Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
vs) No. 17-1102 (Pocahontas County 17-C-18)

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


                               MEMORANDUM DECISION

        Petitioner Joseph Eugene Howard, pro se, appeals the November 14, 2017, order of the
Circuit Court of Pocahontas County dismissing without prejudice petitioner’s petition for a writ of
habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex,1 by
counsel Scott E. Johnson, filed a summary response.

        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.

        Petitioner was convicted by a jury of burglary and grand larceny. Following the filing of a
recidivist information, a separate jury convicted petitioner of being a habitual criminal pursuant to
West Virginia Code § 61-11-18(c).2 The circuit court sentenced petitioner to one to fifteen years
of incarceration for his burglary conviction and to one to ten years of incarceration for his
       1
        Since the filing of the appeal in this case, the superintendent at Mount 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.
       2
        Petitioner’s prior felony convictions were for burglary on April 23, 1983, in Jackson
County, Georgia, and for grand larceny on October 30, 1997, in Highland County, Virginia.

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conviction for grand larceny. For petitioner’s recidivist conviction, the circuit court sentenced him
to a life term of incarceration. Petitioner sought review of his burglary and grand larceny
convictions in Case No. 041681, but this Court refused his appeal on January 20, 2005. Petitioner
sought review of his recidivist conviction in Case No. 041682, but this Court refused that appeal
on January 20, 2005.

        Petitioner’s omnibus habeas corpus proceeding occurred in 2008. At the January 3, 2008,
evidentiary hearing, petitioner “knowingly and intelligently waived his right to counsel[.]”
Thereafter, petitioner was advised regarding “his obligation to raise all grounds for
post[-]conviction relief in one proceeding” and that subsequent habeas petitions would be viewed
with disfavor. By order entered February 6, 2008, the circuit court denied habeas relief. Petitioner
sought review of the circuit court’s denial of relief in Case No. 080938, but this Court refused that
appeal on June 17, 2008.

       On June 28, 2017, petitioner filed a habeas petition, alleging that he was actually innocent
based on newly discovered evidence. Petitioner stated that:

       [He] [o]verheard prison staff state that [West Virginia] State Police Officer Tim
       McDaniels admitted that he and others coached Argile C. Arbogast, the alleged
       victim in the petitioner’s case, to lie and say that the petitioner broke into the
       alleged victim’s house and stole items that he did not steal.

       The petitioner did not break into the Argile C. Arbogast residence and he did not
       commit the offense of [g]rand [l]arceny.

       After filing his petition, petitioner served requests for admissions on Trooper McDaniels
and respondent pursuant to Rule 36 of the West Virginia Rules of Civil Procedure. Petitioner asked
that Trooper McDaniels and respondent admit that the allegations set forth in his petition were
true. However, neither Trooper McDaniels nor respondent answered the requests for admissions.

       Without addressing petitioner’s attempts to conduct discovery under the Rules of Civil
Procedure, the circuit court dismissed his habeas petition. The circuit court recognized that,
pursuant to syllabus point four of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), a
habeas petitioner may raise newly discovered evidence in a successive petition.3 The circuit court

       3
           In syllabus point 4 of Losh, we held:

                         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: ineffective
                 assistance of counsel at the omnibus habeas corpus hearing; newly
                 discovered evidence; or, a change in the law, favorable to the
(continued . . .)
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found that petitioner failed to provide adequate factual support for his allegations. The circuit court
designated its dismissal as without prejudice pursuant to Rule 4(c) of the West Virginia Rules
Governing Habeas Corpus Proceedings (“Habeas Rules”), stating that petitioner “may refile the
[p]etition with adequate factual support.”

        Petitioner now appeals the circuit court’s November 14, 2017, order dismissing his habeas
petition without prejudice. Habeas Rule 4(c) provides, in pertinent part, that: “If the petition
contains a mere recitation of grounds without adequate factual support, the court may enter an
order dismissing the petition, without prejudice, with directions that the petition be refiled
containing adequate factual support. The court shall cause the petitioner to be notified of any
summary dismissal.” We review the circuit court’s dismissal pursuant to the standard of review
applicable to 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.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417,
       633 S.E.2d 771 (2006).

Syl. Pt. 1, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

        On appeal, petitioner argues that respondent’s and Trooper McDaniels’ failure to respond
to his discovery requests should be deemed “conclusive evidence” of his innocence. Respondent
counters that there was no need to answer petitioner’s requests for admissions because a habeas
petitioner may not conduct discovery without leave of court. We agree with respondent. Habeas
Rule 7(a) provides that “[i]n post-conviction habeas corpus proceedings, a prisoner may invoke
the processes of discovery available under the . . . . Rules of Civil Procedure if, and to the extent
that, the court in the exercise of its discretion, and for good cause shown, grants leave to do so.”
Furthermore, in syllabus point two of State ex rel. Wyant v. Brotherton, 214 W.Va. 434, 589
S.E.2d 812 (2003), we held:

               “In proceedings under the West Virginia Post-Conviction Habeas Corpus
       Act, [West Virginia] Code §§ 53-4A-1 to -11, discovery is available only where a
       court in the exercise of its discretion determines that such process would assist in
       resolving a factual dispute that, if resolved in the petitioner’s favor, would entitle
       him or her to relief.” Syllabus point 3, State ex rel. Parsons v. Zakaib, 207 W.Va.
       385, 532 S.E.2d 654 (2000).
       We further concur with respondent’s position that petitioner’s claim that he is actually

               applicant, which may be applied retroactively.

Id. at 762-63, 277 S.E.2d at 608. (Emphasis added.)

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innocent based on an “[o]verheard” conversation among prison staff is inadequate to justify the
holding of a hearing and the appointment of counsel. See Losh, 166 W.Va. at 771, 277 S.E.2d at
612 (finding claim with inadequate factual support “does not justify the issuance of a writ, the
appointment of counsel, and the holding of a hearing”). Therefore, based on our review of the
record, we conclude that the circuit court did not abuse its discretion in dismissing petitioner’s
petition pursuant to Habeas Rule 4(c).

       For the foregoing reasons, we affirm the circuit court’s November 14, 2017, order
dismissing without prejudice petitioner’s petition for a writ of habeas corpus.

                                                                                       Affirmed.



ISSUED: February 22, 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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