STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Marlin J. McClain, 

Petitioner Below, Petitioner FILED 

September 21, 2015 

RORY L. PERRY II, CLERK vs) No. 14-1323 (Jackson County 13-C-69) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

David Ballard, Warden,
 

Mount Olive Correctional Complex,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Marlin McClain, by counsel Kevin W. Hughart and Christen M. Justice, 

appeals the Circuit Court of Jackson County’s December 5, 2014, order granting respondent’s 

motion to dismiss petitioner’s petition for writ of habeas corpus. Respondent David Ballard, 

Warden, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit 

court erred in granting respondent’s motion for summary judgment because he was entitled to 

further habeas proceedings, including an omnibus evidentiary hearing. 

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 1998, petitioner was convicted of first-degree murder and sentenced to life, 

without recommendation of mercy. Petitioner appealed this conviction, and the Court refused the 

same by order entered on February 16, 1999. Thereafter, in May of 1999, petitioner filed his first 

petition for writ of habeas corpus in the circuit court, wherein he alleged the following grounds 

for relief: insufficiency of the evidence; bias; and ineffective assistance of counsel, citing little 

effort to present a defense at trial. Petitioner later filed an amended petition alleging over fifty 

separate grounds for relief, including numerous grounds of ineffective assistance of counsel. 

Petitioner was represented by counsel during this habeas proceeding, and the circuit court held 

an evidentiary hearing on the petition. The circuit court ultimately denied petitioner habeas 

relief. Petitioner appealed the denial of habeas relief to this Court, which refused the same. 

In June of 2006, petitioner filed a second habeas petition in the circuit court, wherein he 

alleged as a sole ground for relief that he was challenging the serology evidence from his trial. 

However, in its answer, respondent noted that no serology evidence was introduced against 

petitioner at trial, so the matter was dismissed. 

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Thereafter, in July of 2014, petitioner, with the assistance of counsel, filed a third habeas 

petition in the circuit court, alleging ineffective assistance of counsel, prejudicial pre-trial 

publicity, coerced confession, non-disclosure of grand jury minutes, prejudicial statements by the 

prosecutor, and failure to prove malice and intent. The State answered the petition and moved for 

summary judgment, arguing that most of the grounds raised had been explicitly ruled on in the 

prior habeas proceeding and the other grounds were deemed waived. After confirming that the 

petition did not allege ineffective assistance of habeas counsel, the circuit court granted 

respondent’s motion and dismissed the petition. It is from this order that petitioner appeals. 

This Court reviews appeals of circuit court orders 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). 

On appeal to this Court, petitioner alleges that he was entitled to further habeas 

proceedings below, including an omnibus evidentiary hearing, because it is unclear whether he 

knowingly and intelligently waived any matters not raised in his first circuit court habeas 

petition. The Court, however, does not agree. We have previously held that 

“[a] prior omnibus habeas corpus hearing is res judicata as to all matters 

raised and as to all matters known or which with reasonable diligence could have 

been known; however, an applicant may still petition the court on the following 

grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing; 

newly discovered evidence; or, a change in the law, favorable to the applicant, 

which may be applied retroactively.” Syllabus Point 4, Losh v. McKenzie, 166 

W.Va. 762, 277 S.E.2d 606 (1981). 

Syl. Pt. 2, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). In the present matter, 

petitioner does not allege that he is raising any grounds for relief that are based on allegations of 

ineffective assistance of habeas counsel, newly discovered evidence, or a retroactive change in 

the law favorable to him. As such, it is clear that the matters raised in his most recent habeas 

petition are barred by res judicata. 

Further, petitioner misapplies our prior holdings to argue that he should have been 

entitled to an omnibus evidentiary hearing. We have previously held that 

“[a] court having jurisdiction over habeas corpus proceedings may deny a 

petition for a writ of habeas corpus without a hearing and without appointing 

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counsel for the petitioner 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). 

Id. at 731, 601 S.E.2d at 51, Syl. Pt. 3. Citing this holding, petitioner argues that he was entitled 

to an omnibus hearing because he did not submit any exhibits, affidavits, or other evidence in 

support of his petition. Simply put, this is an inaccurate interpretation of this holding. This 

holding indicates that a circuit court may summarily deny a petition for writ of habeas corpus 

based upon the petition and its supporting documentation. In this case, petitioner chose to submit 

only the bald allegations in his petition and failed to provide any support therefore. As such, the 

circuit court was free to summarily deny the petition upon review and determination that 

petitioner was entitled to no relief. As such, we find no error in the circuit court granting 

respondent’s motion for summary judgment. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: September 21, 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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