                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

Scott A. Marshall,

Petitioner Below, Petitioner                                                         FILED

                                                                                   January 14, 2013
                                                                                RORY L. PERRY II, CLERK
vs) No. 11-1464 (Jefferson County 09-C-309)                                   SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Patrick Mirandy, Warden,
Respondent Below, Respondent

                                  MEMORANDUM DECISION

         Petitioner Marshall’s appeal, filed by counsel Christopher Prezioso, arises from the
Circuit Court of Jefferson County, wherein petitioner’s second petition for writ of habeas corpus
was denied by order entered on September 16, 2011. Respondent Warden Mirandy,1 by counsel
Brandon Sims, filed a response in support of the circuit court’s decision. Petitioner filed a reply
to this response.

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

        In early 2004, petitioner was convicted of attempted murder, malicious assault,
possession of a firearm by a person prohibited to possess a firearm, and domestic battery.
Following these convictions, the circuit court sentenced petitioner to consecutive sentences as
follows: three to fifteen years in prison for attempted murder, two to ten years in prison for
malicious assault, one year in jail for his misdemeanor possession of a firearm, and one year in
jail for domestic battery. Petitioner’s direct appeal of these convictions was refused by this
Court. Petitioner thereafter filed his first petition for a writ of habeas corpus in the circuit court.
This petition was denied, as was his petition for appeal of that denial to this Court. Petitioner’s
second petition for writ of habeas corpus was denied in September of 2011, which is the order
from which he now 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

1
   Pursuant to Rule 41(c) of the Revised Rules of Appellate Procedure, we have replaced the
respondent party’s name with Warden Patrick Mirandy. The initial respondent on appeal, Jim
Ielapi, is not the warden at St. Mary’s Correctional Center where petitioner is currently housed.

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       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).

       We also bear in mind the following:

       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 applicant,
       which may be applied retroactively.

Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). Moreover, with regard to
reviewing claims concerning ineffective assistance of counsel, we reiterate the following
standard:

       In the West Virginia courts, claims of ineffective assistance of counsel are to be
       governed by the two-pronged test established in Strickland v. Washington, 466
       U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was
       deficient under an objective standard of reasonableness; and (2) there is a
       reasonable probability that, but for counsel's unprofessional errors, the result of
       the proceedings would have been different.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

        On appeal, Petitioner Marshall argues that the second habeas court erred in denying his
petition for writ of habeas corpus without an evidentiary hearing because (1) his sentences
violate the Eighth Amendment of the United States Constitution and (2) he was denied effective
assistance of counsel on his first habeas petition. Petitioner admits that his sentences are within
statutory limits, but argues that he should have received alternative sentencing, such as
concurrent sentences, because he is remorseful for his crimes and vows to become a productive
member of society upon release. Petitioner also argues that his trial counsel failed to call certain
witnesses at trial and that his first habeas counsel failed to properly explore this in petitioner’s
first habeas petition. Consequently, petitioner argues that he showed probable cause to warrant
an omnibus evidentiary hearing on his second habeas petition. In response, Warden Mirandy
argues that the trial court did not err at sentencing petitioner in his underlying criminal matter
because his sentences are not disproportionate, do not constitute cruel and unusual punishment,
and were not based on any impermissible factors. Moreover, Respondent Warden Mirandy
further argues that petitioner has not met his burden in showing ineffective assistance of counsel
on his first habeas petition, nor can he make a blanket claim for ineffective assistance of counsel
without specifying how the outcome of his trial would have been different. See State ex rel.
Hatcher v. McBride, 221 W.Va. 760, 766, 656 S.E.2d 789, 795 (2007). Petitioner’s reply



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reiterates that probable cause warranted an evidentiary omnibus hearing and that his sentences
constitute cruel and unusual punishment.

         Our review of the record uncovers no error by the circuit court in denying habeas corpus
relief to petitioner based on his arguments raised on appeal. In the appendix record
accompanying his appeal, petitioner includes a copy of his first habeas petition in which he
argued that the trial court erred in not allowing him to testify on his own behalf or present
witnesses. Petitioner also includes a copy of his second habeas petition in which he argues that
his first habeas counsel should have questioned the trial court judge about the alleged failure to
allow petitioner to testify or present witnesses. However, petitioner’s excerpts from his jury trial
do not show with specificity as to how trial counsel was deficient or that, but for any alleged
deficiency, there was a reasonable probability that the result of his proceedings would have been
different. Nor has petitioner shown how, but for any alleged deficiency by his first habeas
counsel, the results of his proceedings would have been different. A transcript from the omnibus
hearing held on the first petition is not included in the appendix record for review of petitioner’s
argument concerning ineffectiveness of his first habeas counsel. Having reviewed the circuit
court’s “Amended Final Order Denying Petitioner’s (Second) Writ of Habeas Corpus Ad
Subjiciendum” entered on September 16, 2011, we hereby adopt and incorporate the circuit
court’s well-reasoned findings and conclusions as to the assignments of error raised in this
appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum
decision.

          For the foregoing reasons, we affirm the circuit court’s decision denying habeas corpus
relief.


                                                                                         Affirmed.

ISSUED: January 14, 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




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