                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


Scott B. Burgess,                                                                     FILED
Petitioner Below, Petitioner
                                                                                 November 23, 2015
                                                                                 RORY L. PERRY II, CLERK
vs) No. 14-0750 (Fayette County 12-C-280)                                      SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

David Ballard, Warden,
Mount Olive Correctional Complex,
Respondent Below, Respondent


                                MEMORANDUM DECISION
        Petitioner Scott B. Burgess, by counsel Christopher T. Pritt, appeals the Circuit Court of
Fayette County’s July 02, 2014, order denying his petition for writ of habeas corpus. Respondent
David Ballard, Warden, by counsel David A. Stackpole, filed a response. Petitioner filed a reply.
On appeal, petitioner alleges that the circuit court erred in denying habeas relief where his trial
counsel was constitutionally ineffective in that he failed to pursue a reasonable investigation
prior to trial.

        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 January of 2010, petitioner was indicted on one count of first-degree murder and one
count of first-degree arson for setting his mobile home on fire while his ex-wife and another man
were inside. The man subsequently died from smoke inhalation. The trial was initially scheduled
for March 9, 2010. In March of 2010, petitioner’s first appointed counsel moved the circuit court
for a continuance and the circuit court held a hearing regarding the continuance. The trial was
then rescheduled to begin on May 26, 2010. However, petitioner’s trial did not begin on that
date. Instead, between May of 2010 and April of 2011, the circuit court appointed four different
attorneys to represent petitioner at trial. Petitioner filed motions to remove the first three of his
counsel and to appoint substitute counsel based on petitioner’s claims of ineffective assistance.1
J.B. Rees was appointed as fourth counsel and remained as such through the trial.

        In April of 2011, petitioner’s case came on for trial. At trial, the State presented evidence
that petitioner was angry that his ex-wife was leaving the mobile home and that he threatened to
burn her belongings. The State also presented evidence that petitioner made incriminating

       1
           Petitioner’s trial was continued with each new appointed counsel.
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statements to a neighbor and a sheriff’s deputy about burning down the mobile home. Ultimately,
the jury found petitioner guilty of first-degree murder during the commission of first-degree
arson. In June of 2011, the circuit court sentenced petitioner to life, with a recommendation of
mercy.

        In August of 2012, petitioner filed a pro se petition for writ of habeas corpus, and the
circuit court appointed habeas counsel. In December of 2013, petitioner, through counsel, filed
an amended petition for writ of habeas corpus and a Losh list in which he raised fourteen
grounds: (1) denial of the right to a speedy trial; (2) ineffective assistance of counsel; (3)
irregularities in arrest; (4) excessiveness or denial of bail; (5) refusal to subpoena witnesses; (6)
lack of a full public hearing; (7) constitutional errors is evidentiary rulings; (8) sufficiency of
evidence; (9) defendant’s absence from part of the proceedings; (10) improper communications
between prosecutor or witness and jury; (11) cumulative effect of numerous errors; (12) newly
discovered evidence; (13) transcript incomplete; and (14) incompetent and intoxicated witnesses
testifying with knowledge of prosecution.

         In February of 2013, petitioner filed a motion to continue the omnibus evidentiary
hearing on his amended petition scheduled for February 10, 2013. The circuit court denied
petitioner’s motion and proceeded with the omnibus evidentiary hearing. At the hearing,
petitioner testified that he met with trial counsel on only three occasions prior to trial and that he
asked each of his appointed counsel to obtain an arson expert, but that none of them did so.
Petitioner testified that an arson expert could have bolstered the truth of his contentions about the
fire. Petitioner’s counsel, Mr. Rees, testified that neither he nor previous appointed counsel
believed that an arson expert was necessary, especially after reviewing the State’s investigation
documents. Additionally, Mr. Rees testified that he cross-examined the State’s arson expert at
trial regarding the fire. In fact, Mr. Rees testified that he did not recall petitioner requesting an
arson expert. Mr. Rees testified that he spent forty-nine-and-a-half hours in preparation for
petitioner’s trial and an additional ten hours meeting with petitioner. At the close of the hearing,
petitioner motioned the circuit court to conduct a second omnibus evidentiary hearing in order to
take the sworn testimony of Nola Duncan regarding various witnesses at petitioner’s trial.

         In March of 2014, the circuit court conducted a second evidentiary hearing. Ms. Duncan
testified that she observed two witnesses at the trial drinking beer outside the courthouse while
the circuit court was in recess. Ms. Duncan testified that she did not report her observations to
the State or the circuit court. Petitioner testified he had no information about this allegation
during the trial and that he did not notice that the witnesses were intoxicated. At the close of this
hearing, the circuit court asked the parties to submit proposed findings of facts and conclusions
of law. Based on the evidence presented, the circuit court found that petitioner did not present
any substantive evidence or testimony to support the allegations in his petition. Therefore, the
circuit court denied habeas relief by order entered on July 2, 2014. It is from this order that
petitioner now appeals.

        On appeal, petitioner alleges that the circuit court erred in denying habeas relief.
Petitioner’s allegations are based on his contentions that his various appointed attorneys would
not comply with his directions in regard to the trial of his case. The record is clear that these



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same arguments were adjudicated below. 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).

        Upon our review and consideration of the circuit court’s final 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’s
petition for writ of habeas corpus based on petitioner’s failure to provide any examples, analysis,
explanation, or proof of how any of his alleged errors prejudiced petitioner’s trial or impacted his
constitutional rights. Having reviewed the circuit court’s order denying habeas relief, entered on
July 2, 2014, we hereby adopt and incorporate that order’s well-reasoned findings of fact and
conclusions of law as to this assignment of error. The Clerk is directed to attach a copy of the
circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

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




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