                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Brian E. Ashcraft,
Petitioner Below, Petitioner                                                      FILED
                                                                                May 23, 2016
vs) No. 15-0644 (Harrison County 11-C-289-1)                                   RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden,
Mount Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Brian M. Ashcraft, by counsel Christopher M. Wilson, appeals the Circuit
Court of Harrison County’s June 4, 2015, order denying his petition for writ of habeas corpus.
Respondent David Ballard, Warden, by counsel Shannon Frederick Kiser, filed a response.1
Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in denying his
habeas petition because his prior habeas counsel was ineffective.

        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 September of 2003, petitioner was convicted, by jury, of the offenses of first-degree
murder, voluntary manslaughter, and carrying a concealed weapon without a license. Following
those convictions, petitioner appealed to this Court. We refused petitioner’s appeal in February
of 2002.

        After filing a petition for writ of habeas corpus in the circuit court, petitioner was
appointed counsel to file an amended petition. The circuit court then held an omnibus evidentiary
hearing on the petition over three days in April of 2006 and August of 2006. Thereafter, the
circuit court denied the petition by order entered on September 4, 2008. Petitioner subsequently
appealed the denial to this Court, and we refused the same in June of 2009.

       Following the denial of his first habeas petition, petitioner filed a second habeas petition
in the circuit court and alleged, primarily, ineffective assistance of prior habeas counsel.

       1
        Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have
replaced the original respondent, Anne Thomas, with David Ballard, who is the current warden
of the Mount Olive Correctional Complex where petitioner is incarcerated.
                                                1


Petitioner was appointed an attorney and an amended petition was filed below. Specifically,
petitioner alleged that prior habeas counsel was ineffective for failure to address grounds not
waived in petitioner’s Losh2 list; subpoena witnesses necessary to prove grounds asserted in the
petition; and utilize expert testimony to support the claim of ineffective assistance of trial
counsel. The circuit court held an omnibus evidentiary hearing on the second petition in October
of 2012. Thereafter, the circuit court entered an order denying the petition on June 4, 2015. 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).

        On appeal to this Court, petitioner alleges that he was entitled to habeas relief because his
prior habeas counsel was ineffective. The Court, however, does not agree.

        Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the record submitted on appeal, we find no error or abuse of discretion by the circuit court.
Our review of the record supports the circuit court’s decision to deny petitioner post-conviction
habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the
circuit court’s order includes well-reasoned findings and conclusions as to the assignment of
error raised on appeal. Given our conclusion that the circuit court’s order and the record before
us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit
court’s findings and conclusions as they relate to petitioner’s assignment of error raised herein
and direct the Clerk to attach a copy of the circuit court’s June 4, 2015, “Order Denying Second
Petition For A Writ Of Habeas Corpus” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: May 23, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis

       2
           Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
                                                 2


Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Allen H. Loughry II





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