### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Steven Mahood, March 16, 2015 Petitioner Below, Petitioner RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA vs) No. 14-0026 (Fayette County 12-C-330)

David Ballard, Warden, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Steven Mahood, by counsel D. Adrian Hoosier II, appeals the Circuit Court of Jackson County’s November 20, 2013, order that denied his petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Christopher Dodrill, filed a response. Petitioner filed a “Supplemental Petitioner’s Brief and Reply to Respondent’s Response.” 1 On appeal, petitioner argues that the circuit court erred in denying his motion for default judgment and his petition for writ of habeas corpus because he received ineffective assistance of counsel.

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 April of 2009, a Jackson County Grand Jury indicted petitioner on the charge of the first degree murder of his wife. Following a four-day trial, the jury convicted petitioner of first degree murder. Thereafter, the circuit court sentenced petitioner to life in prison without mercy.

In August of 2009, petitioner filed a direct appeal with this Court arguing that he was

denied a fair trial because the circuit court admitted inadmissible evidence about an adulterous

1 Petitioner filed a “Combined Motion for Leave to Clarify Claims and Petitioner’s Second Supplemental Brief and Reply to Respondent’s Response.” Respondent filed a “Response in Opposition to Petitioner’s Combined Motion for Leave to Clarify Claims and Petitioner’s Second Supplemental Brief and Reply.” This Court refused petitioner’s “Combined Motion for Leave” by order entered December 15, 2014. Subsequently, petitioner also filed a “Supplemental Petitioner’s Brief and Reply to Respondent’s Response.” By order entered January 15, 2015, this Court on its own motion struck petitioner’s supplemental brief and reply because it contained new assignments of error that were not originally raised by petitioner. See Rule 10 of the West Virginia Rules of Appellate Procedure.

1affair that petitioner had with one of the State’s witnesses. By order entered October 14, 2010, this Court affirmed the Circuit Court of Jackson County’s sentencing order. See State v. Mahood

, 227 W.Va. 258, 708 S.E.2d 322 (2010).

In December of 2010, petitioner, pro se, filed a petition for writ of habeas corpus. Several months later, the circuit court appointed petitioner counsel. After having counsel appointed, petitioner filed an amended petition for writ of habeas corpus arguing that he was denied his constitutional right to a fair and impartial jury; denied his right to present a complete defense; that he received ineffective assistance of counsel; and that he received a more severe sentence than expected. On July 5, 2011, petitioner filed a supplemental amended petition for writ of habeas corpus. In this petition, petitioner argued that his trial counsel failed to present evidence and argument of mitigating circumstances during the non-bifurcated trial and prosecutorial

misconduct.

Although still represented by counsel, petitioner, pro se, in February of 2013, filed a document titled “supplemental claims to be added to amended petition for writ of habeas corpus.” By order entered February 21, 2013, the circuit court directed the State to file a response to petitioner’s supplemental amended petition within thirty days. Subsequently, the circuit court held a status hearing, and upon petitioner’s motion, granted petitioner an additional thirty days to file a final petition and a “Losh list” and ordered the State to file a response within thirty days. 2

On June 18, 2013, petitioner filed a “Motion for Default Judgment” arguing that he should be granted a new trial because the State failed to file a response to his petition for writ of habeas corpus. 3 Several hours later, the State filed its answer. Following a status hearing in July of 2013, the circuit court entered an order setting an omnibus evidentiary hearing on petitioner’s claim of ineffective assistance of counsel. After holding an omnibus evidentiary hearing, the circuit court denied petitioner post-conviction habeas relief by amended order entered November 20, 2013. Petitioner now appeals to this Court.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

2 The checklist of grounds typically used in habeas corpus proceedings, commonly known

as “the Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

3 This Court acknowledges that record reflects that while petitioner made a motion for default judgment as to his claims against respondent, that the relief petitioner actually sought from the circuit court was for default on the issue of whether petitioner’s conviction and

incarceration was void under the Constitution of the United States or the Constitution of this State, not a default judgment after damages have been ascertained. Petitioner’s motion sought the circuit court’s ruling as to petitioner illegal imprisonment. Petitioner did not seek judgment from respondent for a sum certain. The term “default judgment” is used throughout this decision to refer to a default, simply because the language of the circuit court’s order and petitioner’s underlying motion uses the term “default judgment” as opposed to default. This Court recognizes the difference between a default and default judgment.

2“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).

First, petitioner argues that the circuit court erred in denying him habeas relief because respondent failed to file a timely response to his petition for writ of habeas corpus filed on April 29, 2011. Petitioner contends that he was entitled to a default judgment because respondent failed to file its response by June 24, 2011.

Petitioner cites no legal authority to support his argument that he was entitled to a default judgment. “[T]he rules of procedure in criminal and civil cases do not apply in post-conviction habeas corpus proceedings.” Gibson v. Dale , 173 W.Va. 681, 688 n.7, 319 S.E. 806, 813 n.7 (1984). This Court notes that respondent did not file a response to petitioner’s “amended petition” by June 24, 2011, as directed by the circuit court. However, the record clearly shows that petitioner filed a supplemental amended petition for writ of habeas corpus on July 5, 2011, and a “supplemental claims to be added to amended petition for writ of habeas corpus” on February 14, 2013. Petitioner’s own actions prevented respondent from filing a response to the original petition that was filed in April of 2011. The circuit court appropriately entered two additional scheduling orders directing respondent to file a response. 4 Further, West Virginia Code § 55-17-4(2), provides that “[j]udgment by default may not be entered against a government agency in an action . . . .” Accordingly, we find that the circuit court did not err denying petitioner’s request for a default judgment.

Petitioner also re-asserts the same argument that the circuit court rejected. Petitioner argues that he received ineffective assistance of counsel because his trial counsel failed to investigate a diminished capacity defense. Upon our review and consideration of the circuit court’s order, the parties’ arguments, and 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 post-conviction habeas corpus relief based on the error he assigns in this appeal, which was also argued below. Having reviewed the circuit court’s “Amended Judgment Order,” entered November 20, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions of law as to the assignment 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.

Affirmed.

4 Respondent filed a response to petitioner’s supplemental amended petition and supplemental claims to be added to the amended petition on June 18, 2013.

3ISSUED: March 16, 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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