                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


David Taylor,                                                                        FILED
Petitioner Below, Petitioner                                                       March 29, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.) No. 11-1529 (Berkeley County 11-C-681)                                      OF WEST VIRGINIA



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

                                MEMORANDUM DECISION

       Petitioner David Taylor, pro se, appeals the Circuit Court of Berkeley County’s order,
entered September 19, 2011, summarily dismissing his third petition for a writ of habeas corpus.
The respondent warden, by Christopher C. Quasebarth, his attorney, filed a 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Following jury selection, but before opening statements, petitioner entered into a
non-binding plea agreement to a one count indictment charging him with aggravated robbery with
the use of a firearm. The circuit court conducted the required plea colloquy, convicted petitioner,
and sentenced him to forty-four years in prison. Petitioner appealed to this Court which refused his
petition by an order entered June 29, 1994.

        On October 7, 1998, petitioner filed his first petition for a writ of habeas corpus, in which
he alleged: ineffective assistance of trial counsel; deficient plea colloquy; and failure to strike a
juror. Petitioner was represented by counsel.1 The respondent warden filed a motion to dismiss the
petition. The circuit court granted the motion to dismiss in an order entered May 6, 1999.2


Petitioner filed a motion to alter or amend the judgment on June 1, 1999, which was denied.
Petitioner’s appeal of the circuit court’s dismissal of his petition was refused.

1
    While petitioner had counsel, no evidentiary hearing occurred on his first petition.
2
    This order, and the findings therein, will be discussed infra.
                                                    1
       On August 25, 2008, petitioner filed his second petition for a writ of habeas corpus which
was dismissed without prejudice for a lack of factual support. No appeal was taken.

       On August 22, 2011, petitioner, pro se, filed his third—and most recent—petition for a writ
of habeas corpus in which he alleged: ineffective assistance of trial counsel; deficient plea
colloquy; and illegal search and seizure.3 The first two grounds were the same as the first two
grounds raised in his first petition; the third ground was new.

        In an order entered September 19, 2011, the circuit court found petitioner’s first two
grounds to be precluded from a successive petition because those claims also “appear[ed] in the
first Petition.”4 The circuit court found that the illegal search and seizure claim could have been
raised in either petitioner’s direct appeal or in his first petition and, therefore, the claim was
waived.5 Accordingly, the circuit court summarily dismissed petitioner’s third petition.

         We review the circuit court’s order dismissing the petition 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). “A court having jurisdiction
over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing
and without appointing counsel for the petitioner 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 (1973).

        On appeal, petitioner states that the circuit court’s order is erroneous in stating that an
evidentiary hearing occurred on his first habeas petition. Petitioner argues that trial counsel was
ineffective and that he should be allowed to enter a new plea or develop a record concerning his
original plea. Petitioner also argues that a search and seizure violation occurred. While

3
    Petitioner also argued for habeas relief because of the cumulative effect of these errors.
4
  The circuit court also found petitioner’s argument based upon Rule 11 of the West Virginia
Rules of Criminal Procedure, which—inter alia—addresses plea agreement procedure, was not of
a constitutional nature and, therefore, not recognizable in habeas corpus. See Syl. Pt. 4, State ex
rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831 (1983).
5
  Also, with respect to both the illegal search and seizure claim, and the ineffective assistance
claim, the circuit court found that “the Petitioner has made blanket assertions rather than detailed
factual support.”
                                                   2
acknowledging the circuit court’s error on whether an evidentiary hearing occurred, the
respondent warden argues that the circuit court did not err in summarily dismissing petitioner’s
third petition. The respondent warden argues that petitioner’s guilty plea means that he has waived
any claim concerning illegal searches and seizures, citing State v. Legg, 207 W.Va. 686, 690 n. 7,
536 S.E.2d 110, 114 n. 7 (2000).

         The lack of an evidentiary hearing could have potentially prevented the first habeas
proceeding from having a preclusive effect on the instant proceeding;6 however, it is relevant that
petitioner had counsel who advocated on his behalf. The circuit court’s May 6, 1999, order, which
dismissed the first petition, reflects that the court considered “the record, . . . the briefs and other
papers filed herein[,] and the record of the underlying criminal case[.]”7 The circuit court found
that “[t]he record of the plea and sentencing hearings conclusively demonstrate the voluntariness
of the petitioner’s guilty plea” and that “[n]either is the petitioner’s factual contention . . . that
counsel was ineffective by forcing the plea on him at the last minute borne out by the record.”
Therefore, after careful consideration of the parties’ arguments, this Court concludes that the
circuit court did not abuse its discretion in summarily dismissing petitioner’s third petition.

       For the foregoing reasons, we find no error in the decision of the Circuit Court of Berkeley
County and affirm its September 19, 2011, order denying petitioner’s third petition for a writ of
habeas corpus.

                                                                                             Affirmed.


ISSUED: March 29, 2013

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




6
    See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
7
  The order also indicates that the circuit court considered arguments of counsel from a hearing
occurring on March 8, 1999. However, the docket sheet from the first proceeding is ambiguous on
whether such a hearing occurred; therefore, it cannot be confirmed.
                                                   3
