                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

David T. Walls, Petitioner Below,

Petitioner                                                                          FILED

                                                                                    April 28, 2014
                                                                               RORY L. PERRY II, CLERK
vs) No. 13-0296 (Berkeley County 11-C-754)                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Patrick Mirandy, Warden, St. Mary’s Correctional
Center, Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner David T. Walls, by counsel Steven A. Greenbaum, appeals the February 20,
2013, order of the Circuit Court of Berkeley County denying his petition for writ of habeas
corpus. Respondent Patrick Mirandy, by counsel Cheryl K. Saville, has filed a response, to which
petitioner has filed a reply. Petitioner argues that he should have been afforded a hearing to
address the allegations listed in his petition for writ of habeas corpus.

        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 order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In May of 2008, petitioner was indicted on one count of delivery of cocaine and one count
of delivery of marijuana by the Grand Jury of Berkeley County. In June of 2008, petitioner
pleaded guilty to one count of delivery of marijuana and, as part of a plea agreement, the State
dropped the delivery of cocaine charge and agreed not to seek a recidivist information. Petitioner
was sentenced to one to five years of incarceration, to be served consecutively to an unrelated
criminal sentence he was already serving. Petitioner filed a motion for reconsideration of his
sentence, which the circuit court denied; he never filed a direct appeal of his conviction or
sentencing.

        In September of 2011, petitioner filed a petition for writ of habeas corpus in the circuit
court, to which the State made its timely response. In May of 2012, however, the circuit court
dismissed the petition as moot because petitioner had been released on parole. Sometime
thereafter, petitioner violated his parole and was returned to a correctional facility. In October of
2012, petitioner moved to reinstate his petition, which the court accepted. By order entered
February 20, 2013, and without holding an omnibus evidentiary hearing, the circuit court denied
the petition for writ of habeas corpus. The circuit court held that petitioner failed to show any
constitutional error or any need for an evidentiary hearing and, therefore, the petition should be
denied and sentence should be upheld. Specifically, the circuit court found the plea to be
voluntary and counsel to be adequate. It further found that petitioner had waived any claim that
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evidence in his voluntary plea was insufficient. Regarding petitioner’s argument that he was
improperly informed of how credit for time served would work, the circuit court found that the
transcript showed that the court, petitioner, and petitioner’s counsel discussed the matter on the
record and explained that he would not begin the sentence on the marijuana charge until he had
discharged the sentence he was already serving. It is from this order that petitioner appeals.

       This Court has previously held that

               [i]n 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, in part, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

        Petitioner alleges that the circuit court erred in summarily denying his petition below.
According to petitioner, the circuit court did not have an adequate record to make a determination
on his claims of involuntary plea, ineffective assistance of counsel, and insufficient evidence to
convict, without holding a hearing. Citing West Virginia Code § 53-4A-7(a), petitioner argues
that he is entitled to a hearing on the allegations in his petition. Additionally, petitioner provides a
summary of evidence he contends supports his claims, and also includes his assertions that he did
not understand the plea agreement or the sentencing, and that he was not of sound mind. Finally,
petitioner argues that whether counsel was ineffective could only be ascertained through a factual
determination.

        After careful consideration of the parties’ arguments, this Court concludes that the circuit
court did not abuse its discretion in denying the petition for writ of habeas corpus, especially in
light of the following:

       “A court having jurisdiction over habeas corpus proceedings may deny a petition
       for a writ of habeas corpus without a hearing . . . 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).

Syl. Pt. 3, in part, Marley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). The circuit court
correctly concluded that petitioner is unable to satisfy the burden necessary to prove
incompetency to plead guilty as required by State ex rel. Kessick v. Bordenkircher, 170 W.Va.
331, 294 S.E.2d 134 (1982), and to prove ineffective assistance of counsel as required by
Strickland v. Washington, 466 U.S. 668 (1984). Further, as the circuit court also noted, petitioner
waived his right to raise the allegations regarding sufficiency of the evidence and credit for time
served. Having reviewed the circuit court’s “Order Denying Petition For Writ Of Habeas Corpus
Ad Subjiciendum” entered on February 20, 2013, we hereby adopt and incorporate the circuit
court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal.

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The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
February 20, 2013, order denying the petition for writ of habeas corpus is affirmed.

                                                                                         Affirmed.

ISSUED: April 28, 2014

CONCURRED IN BY:

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




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