STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Donte J. Garrett, FILED 

Petitioner Below, Petitioner February 6, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0551 (Kanawha County 14-P-234) OF WEST VIRGINIA 

Marvin C. Plumley, Warden, 

Huttonsville Correctional Center, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Donte J. Garrett, pro se, appeals the order of the Circuit Court of Kanawha 

County, entered May 19, 2014, denying his petition for writ of habeas corpus. Respondent 

warden appears by counsel Laura Young. 

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 order of the circuit court is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

In 2007, petitioner pled guilty to the first-degree murder of Wayne McCants, his mother’s 

cohabiting boyfriend. After the plea hearing, petitioner moved to withdraw his plea, because “he 

wasn’t happy with the plea being a first degree rather than a second degree.” The circuit court 

denied petitioner’s motion to withdraw the plea and thereafter sentenced him to incarceration for 

life, with mercy. In 2009, petitioner filed his first pro se petition for writ of habeas corpus in the 

circuit court, complaining (according to the order of the circuit court) that 

he received ineffective assistance of counsel insofar as his trial attorney allegedly 

failed to inform [p]etitioner of his right to dispute the State’s evidence that 

[p]etitioner was competent to stand trial and insofar as his trial attorney allegedly 

failed to inform [p]etitioner of the potential of establishing a diminished capacity 

defense due to [p]etitioner’s alleged failure to take his medication and use of 

alcohol at the time of the offense. 

The circuit court, which also had acted as the trial court, had the benefit of at least three 

psychological examinations addressing petitioner’s competency prior to sentencing. It summarily 

denied the petition without appointing counsel or conducting an omnibus hearing. Petitioner filed 

a petition for appeal with this Court, which refused the same by order entered on May 21, 2010. 

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In 2012, petitioner filed a second pro se petition for writ of habeas corpus, after which the 

circuit court appointed counsel, who filed an amended petition. Again, petitioner argued that his 

trial counsel did not effectively address the issue of his mental state and, again, the circuit court 

denied the petition without conducting an omnibus hearing. Petitioner appealed that denial to this 

Court, challenging the circuit court’s ability to make a determination on his claims of ineffective 

assistance of counsel without the benefit of a hearing. By memorandum decision entered on June 

10, 2013, this Court adopted the findings and conclusions of the circuit court and affirmed the 

circuit court’s denial of the petition for habeas corpus. Garrett v. Plumley, No. 12-1133 (W.Va. 

Supreme Court, June 10, 2013)(memorandum decision). 

Petitioner continues to attack his conviction, and he filed his third petition for writ of 

habeas corpus on May 7, 2014. The circuit court entered its order denying the requested relief 

less than two weeks later, on May 19, 2014, noting that it previously addressed petitioner’s 

claims “with an extensive order going into great detail in regards to the psychological 

evaluations and reports and the ineffective assistance of counsel claims” and ultimately 

concluding that petitioner’s claims were “frivolous.” Petitioner appeals the denial of this third 

and most recent petition to this Court. On appeal, he asserts four assignments of error. First, he 

argues that his trial counsel was ineffective for failing to contact a psychiatrist (presumably Dr. 

Miller) who previously treated him to establish that he was not competent at the time of the 

crime or at the time he entered his plea. Second, he argues that his habeas counsel (appointed by 

the court when he filed his second petition for writ of habeas corpus) was ineffective for failing 

to contact his trial counsel to prove that he was not advised about a potential diminished capacity 

defense. Third, petitioner argues that his trial counsel was ineffective for failing to explain the 

elements of the crime—particularly, that of premeditation—to him prior to his entry of the plea. 

Finally, petitioner argues that he is in possession of new evidence warranting reversal of his 

conviction. 

We consider petitioner’s assignments of error in accordance with our prior holding 

directing 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). Because this is 

petitioner’s third habeas action, we also note that West Virginia Code § 53–4A–1 et seq. 

clearly contemplates that a person who has been convicted of a crime is ordinarily 

entitled, as a matter of right, to only one post-conviction habeas corpus 

proceeding during which he must raise all grounds for relief which are known to 

him or which he could, with reasonable diligence, discover. 

Syl. Pt. 1, Gibson v. Dale, 173 W.Va. 681, 319 S.E.2d 806 (1984). And, finally, we recognize 

that 

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[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. 

Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). 

With regard to the first and second assignments of error, we find no error because the 

appendix record on appeal demonstrates that petitioner’s mental state—both at the time of the 

murder and at the time he entered his plea—was thoroughly considered by the trial court, and the 

trial court’s conclusion has been well-vetted in two prior habeas actions. In the order denying 

petitioner’s second petition for writ of habeas corpus, the circuit court wrote, in findings 

ultimately adopted by this Court: 

. . . Petitioner claims ineffective assistance of counsel in regards to [his] attorneys. 

. . . First, [p]etitioner alleges that he was never informed of Dr. Miller’s 

evaluation diagnosing [petitioner] with intermittent explosive disorder. . . . 

First, the evaluations and reports of both Dr. [David] Clayman, finished on 

August 29, 2005, and Dr. [Mark] Casdorph, finished on September 2, 2005, 

conclude that [p]etitioner was not suffering from any mental disease or defect 

which would have prohibited his ability to modify his behavior in accordance to 

the requirements of the law. Additionally, Dr. Miller’s report was available [eight] 

months prior to when the plea offer was accepted. 

Furthermore, in an evaluation to conclude if [p]etitioner was competent to accept 

the plea offer, Dr. Smith concluded that [p]etitioner understood the purpose of the 

plea and its consequences, and that [p]etitioner understood what would happen if 

he accepted or denied the offer. 

Petitioner has challenged his conviction by putting his mental state in issue in three 

successive petitions for habeas corpus and, while he may have presented his argument with 

slightly different nuances each time, it is apparent that there is no evidence upon which this 

Court would determine that petitioner’s constitutional rights were compromised. The evidence 

demonstrates that petitioner had “no mental disease or defect” that would have compromised his 

ability to modify his behavior at the time he shot Mr. McCants. The evidence further 

demonstrates that great care was taken by the trial court to ensure that petitioner was competent 

prior to the entry of his plea. We find no error in the circuit court’s declining to, yet again, 

address petitioner’s counsels’ actions with respect to his competency at the time of the offense or 

at the time of the entry of the plea. 

We turn to petitioner’s third assignment of error, in which he argues that his trial counsel 

failed to inform him that premeditation was an element of the offense that the State would have 

to prove to secure a conviction of murder in the first degree. In its order denying the second 

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petition for writ of habeas corpus, the circuit court clearly found that “the record indicates that, 

throughout the proceeding, [the trial court] went to great lengths to make sure that [p]etitioner 

understood what he was doing and the rights he was giving up when he accepted his plea offer.” 

Inasmuch as we adopted that finding in our prior order, and inasmuch as the appendix record on 

appeal demonstrates that petitioner’s trial counsel affirmed at the plea hearing that he had 

discussed the elements of first-degree murder with petitioner, we find no merit in this argument. 

The circuit court did not abuse its discretion in declining to grant relief on this issue. 

In his fourth assignment of error, in which petitioner argues that newly discovered 

evidence warrants reversal of his conviction, petitioner contends for the first time that police 

officers fabricated a statement from his sister (identified as “Germilla Garrett,” a name that 

petitioner implies he does not recognize), dated June 20, 2005, in which Ms. Garrett stated that 

she saw petitioner shoot Wayne McCants six times after directing him to put petitioner’s baby 

down. Petitioner argues that a letter written by his sister Franschesca Garrett in 2014 requires a 

new trial. That letter contains allegations of rumors that McCants molested petitioner’s son, and 

generally states that petitioner is of good character. It does not, however, recant, refute, or 

otherwise even refer to the 2005 statement given by Germilla Garrett. Thus, we find that this is 

not “newly discovered evidence” that would have changed the outcome of petitioner’s plea 

agreement and conviction, and the circuit court did not abuse its discretion in declining to grant 

habeas relief on this ground. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: February 6, 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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