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. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

affair 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. 

3
 
 

 

 

 

 

 

 

ISSUED: 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 

4