                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jason Payne,                                                                        FILED
Petitioner Below, Petitioner
                                                                                 June 19, 2017
                                                                                 RORY L. PERRY II, CLERK
vs) No. 16-0340 (Morgan County 12-P-50)                                        SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                                  MEMORANDUM DECISION

        Petitioner Jason Payne, by counsel Kevin J. Watson, appeals the Circuit Court of Morgan
County’s March 15, 2016, order denying his petition for writ of habeas corpus. Respondent,
David Ballard, Warden, Mt. Olive Correctional Complex, by counsel Nic Dalton, filed a
response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in denying his request for habeas relief wherein he alleged that he received ineffective
assistance of trial counsel. Petitioner further alleges that the circuit court failed to hold an
omnibus evidentiary hearing below and erred in denying his petition for habeas corpus on the
basis that his grounds for relief were without support and finally adjudicated below.

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

        In April of 2006, an informant told police that Keese Bare was dead and that her remains
were located in a fire pit at a camp site by the Potomac River referred to as “Lot 17.” The
informant believed that there were four suspects responsible for the death of Bare: petitioner;
Vernon Kerns Jr.; Mr. Kerns’ sister Amanda Kerns Ecatah; and Jerome “B.J.” Smith. A police
investigation revealed that Bare was involved in a credit card theft/fraud ring and was murdered
because the other individuals involved believed that she was about to inform law enforcement of
the group’s activities. An expert from the Smithsonian Institution examined the bone fragments
found in the fire pit and positively identified the victim as Keese Bare.

       In April of 2007, petitioner was indicted on two counts of breaking and entering, one
count of grand larceny, one count of destruction of property, and one count of transferring stolen




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property.1 A superseding indictment was later filed and it replaced the previous counts with the
following: two counts of breaking and entering, one count of grand larceny, and one count of
misdemeanor destruction of property. On April 22, 2007, petitioner’s jury trial commenced and
he was ultimately convicted on all counts.

        In September of 2007, as a result of the same incident, petitioner was indicted on one
count of first-degree murder and one count of conspiracy. Petitioner’s jury trial commenced and
he was ultimately convicted of one count of second-degree murder, a lesser included offense of
first-degree murder.

        In April of 2008, following petitioner’s convictions for breaking and entering, grand
larceny, and misdemeanor destruction of property, the State filed an information seeking to
enhance his sentence and charge him as a recidivist.2 In June of 2008, subsequent to his
convictions above, the circuit court sentenced petitioner in both cases to the following: a term of
incarceration of not less than one nor more than ten years for his conviction of one count of
breaking and entering; not less than two nor more than ten years for his conviction of one count
of breaking and entering, based upon his admission that he was previously convicted of a felony;
not less than one nor more than ten years for his conviction of one count of grand larceny; and
one year for his conviction of one count of misdemeanor destruction of property. Petitioner’s
sentences were ordered to run consecutively to each other. Additionally, petitioner was sentenced
to a term of incarceration of forty years for his second-degree murder conviction and to an
additional term of five years for his recidivist status. The circuit court ordered that his sentence
for the second-degree murder conviction and his additional sentence for his recidivist conviction
run consecutively to the sentences imposed above.

        In 2012, petitioner filed two direct appeals from both circuit court proceedings claiming
the following errors: (1) the circuit court failed to direct a verdict in his favor; (2) the circuit
court failed to instruct the jury on the definition of the word “duty;” (3) the circuit court
instructed the jury that it could continue to deliberate or recess until the next judicial day; (4) the
State failed to disclose phone records which “most probably contained” exculpatory evidence;
(5) the circuit court admitted certain evidence at trial under the business records exception to the
hearsay rule; (6) the circuit court failed to suppress petitioner’s statements made to police; and
(7) the circuit court sentenced petitioner in a manner that “should shock the conscience of the
Court and society.” This Court affirmed petitioner’s convictions in two memorandum decisions.
See State v. Payne, No. 11-1042, 2012 WL 3104259 (W.Va. June 22, 2012) (memorandum
decision); and State v. Payne, No. 11-1045, 2012 WL 3104253 (W.Va. June 22, 2012)
(memorandum decision).




       1
         Petitioner was also indicted on one count of simple possession of marijuana, which was
thereafter severed from the rest of the indictment. Petitioner was subsequently tried and was
acquitted of the simple possession of marijuana.
       2
       Petitioner admitted to his felony convictions in Morgan County, West Virginia and
Howard County, Maryland.
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        In November of 2012, petitioner filed a petition for writ of habeas corpus relief with the
circuit court alleging (1) that he received ineffective assistance counsel at trial; (2) that the circuit
court failed to instruct the jury on the definition of the word “duty;” (3) that the circuit court
failed to direct a verdict in his favor; (4) that the State failed to disclose exculpatory evidence;
(5) that the circuit court failed to suppress petitioner’s statements made to police; (6) cumulative
error; and (7) additional grounds. The circuit court entered an order on March 15, 2016, denying
petitioner’s petition for writ of habeas corpus without holding an omnibus evidentiary hearing. It
is from this order that petitioner appeals.

This Court reviews a circuit court order 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).

        First, we address petitioner’s arguments that the circuit court erred in denying his request
for an omnibus evidentiary hearing based on its finding that his grounds for relief were without
support and finally adjudicated below. Specifically, he contends that his petition for writ of
habeas corpus presented probable cause that he is entitled to his “day in court,” and that the
circuit court violated West Virginia Code § 53-4A-7(a). West Virginia Code § 53-4A-7(a)
provides, in part, that

        [i]f the petition, affidavits, exhibits, records and other documentary evidence
        attached thereto, or the return or other pleadings, or the record in the proceedings
        which resulted in the conviction and sentence, or the record or records in a
        proceeding or proceedings on a prior petition or petitions filed under the
        provisions of this article, or the record or records in any other proceeding or
        proceedings instituted by the petitioner to secure relief from his conviction or
        sentence, show to the satisfaction of the court that the petitioner is entitled to no
        relief, or that the contention or contentions and grounds (in fact or law) advanced
        have been previously and finally adjudicated or waived, the court shall enter an
        order denying the relief sought.

Additionally, West Virginia Code §§ 53-4A-1 through 53-4A-11 contemplate the circuit court’s
exercise of discretion regarding granting or denying habeas relief.

        We have held that a circuit 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.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657

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(1973). In the comprehensive March 15, 2016, order denying petitioner’s request for habeas
relief, the circuit court found that the petition demonstrated that petitioner was not entitled to
relief and dismissed his petition. The circuit court found that petitioner’s grounds for relief were
without support and finally adjudicated below. Based on this record, and in light of our holding
in Perdue, we find no error.

        On appeal to this Court, petitioner alleges that he was entitled to habeas relief because his
trial counsel was ineffective. He further alleges that the circuit court failed to instruct the jury on
the definition of the word “duty;” direct a verdict in his favor; and suppress his statements made
to police. Additionally, petitioner alleges that the State failed to disclose exculpatory evidence;
cumulative error; and additional grounds which he concedes are unsupported by the record. 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 assignments 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
assignments of error raised herein and direct the Clerk to attach a copy of the circuit court’s
March 15, 2016, “Order Denying Petition for Writ of Habeas” to this memorandum decision.

        For the foregoing reasons, we affirm the circuit court’s March 15, 2016, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                       Affirmed.

ISSUED: June 19, 2017

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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