### 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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