STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jeffrey K., Petitioner Below, 

### FILED
Petitioner June 10, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 12-0749 (Taylor County 10-C-74) OF WEST VIRGINIA

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

MEMORANDUM DECISION

Pro se Petitioner Jeffrey K. appeals the May 30, 2012 order of the Circuit Court of Taylor County denying his petition for writ of habeas corpus. 1 Respondent Ballard, by counsel Laura Young, has filed a response, to which petitioner has filed a reply.

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.

During the September 1991 term, petitioner was indicted on three counts of first degree sexual assault and three counts of sexual abuse by a parent, guardian, or custodian by a Taylor County Grand Jury. These charges stemmed from incidents in which petitioner committed sex acts upon K.T., the seven-year-old daughter of his live-in girlfriend, S.C. The crimes came to light after K.T. was diagnosed with a severe case of genital herpes. After K.T. identified petitioner as her attacker, petitioner admitted to multiple people, including S.C. and a DHHR worker, that he was responsible for transmitting the disease and had molested the child on three occasions. Following a jury trial, petitioner was convicted on all counts. The circuit court thereafter sentenced petitioner to a cumulative term of incarceration of 40 to 100 years for his convictions. Petitioner appealed these convictions and the Court refused the same in 1993.

In March of 1995, petitioner, pro se , filed his first petition for writ of habeas corpus in the circuit court. That petition was summarily denied the same month, and petitioner appealed the denial to this Court. By order entered in December of 1995, the Court refused petitioner’s appeal. In February of 1996, petitioner, pro se , filed his second petition for writ of habeas corpus in the circuit court. Petitioner raised two grounds for relief in this second petition, and the circuit court found that his claim regarding his sentences being violative of the ex post facto clause had merit.

1 Pursuant to this Court’s policy of protecting the identities of minors and the victims of sexual crimes, petitioner will be referred to by his last initial throughout the memorandum decision, while the victim and her mother will be referred to by their initials only.

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­The matter was set for a hearing for purposes of resentencing and the rest of the matter was stricken from the circuit court’s docket. Following the hearing, petitioner was granted a reduction of sentence such that his total cumulative term of incarceration was lessened to forty to seventy years. Petitioner thereafter filed, pro se , in the circuit court an “Appeal For A Writ Of Habeas Corpus Ad Subjiciendum” in July of 1997. According to the circuit court below, this was essentially a third petition for writ of habeas corpus. That petition was also denied.

On August 20, 2010, petitioner filed a pro se petition for writ of habeas corpus in the circuit court. Thereafter, the circuit court appointed counsel for petitioner and an amended petition for writ of habeas corpus was filed in 2011. On February 3, 2012, the circuit court conducted a full evidentiary hearing in regard to the petition, after which it denied petitioner habeas relief. It is from this denial that petitioner appeals.

On appeal, petitioner alleges four assignments of error. On review, it appears that petitioner is merely re-alleging several of the grounds for relief alleged in the petition for writ of habeas corpus filed with the circuit court, including the following: ineffective assistance of counsel; error by the circuit court in refusing to provide specific jury instructions; coerced confession; and prosecutorial misconduct. As such, the Court finds that petitioner’s assignment of error is more appropriately stated as an error by the circuit court in denying the petition for writ of habeas corpus. Petitioner argues that the circuit court failed to make appropriate findings of fact regarding certain allegations from his petition and that a de novo review is, therefore, appropriate. Further, petitioner alleges that the circuit court’s rulings in regard to these issues are clearly

erroneous.

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, Mathena v. Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006). 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. As set forth by the circuit court below, petitioner’s grounds for habeas relief have previously been presented to both the circuit court and this Court. Having reviewed the circuit court’s “Final Order Denying Jeffrey [K.]’s Petition For Writ Of Habeas Corpus Ad Subjiciendum” entered on May 30, 2012, 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. Additionally, the record shows that on June 5, 2012, the circuit court entered its “Order Granting Counsel For Jeffrey [K.]’s Motion To Amend Final Order; Amending The Final Order Denying Jeffrey [K.]’s Petition For Writ Of Habeas Corpus Ad Subjiciendum,” wherein the circuit court made amendments to the prior order. As such, we also adopt these findings as to the assignments of error raised herein, and the Clerk is directed to attach a copy of this order to the

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­memorandum decision as well.

For the foregoing reasons, we find no error in the decision of the circuit court and its May 30, 2012 order denying the petition for writ of habeas corpus is affirmed.

Affirmed.

ISSUED: June 10, 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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