1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

David Lawrence Dixon

, Petitioner Below, Petitioner

vs ) No. 1 8

- 00 97 ( McDowell County 0 5

- C

- 93 )

Donnie Ames

, Superintendent

, Mt. Olive Correctional Complex

, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner David Lawrence Dixon

, pro se
, appeals the January 18 , 201 8 , order of the Circuit

Court of McDowell Co unty denying his second petition for a writ of habeas corpus and its April
16, 2018

, order reaffirming the denial of the habeas petition after a remand following the discovery

of the reco r ding of the grand jury proceeding in petitioner’s criminal case

. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, 1 by counsel Shannon Frederick Kiser

, filed a summary response in support of the circuit court’s order s

.

The Court has considered the parties’ briefs and the record on appeal. The fa cts 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 l aw and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order s is appropriate under Rule 21 of the Rules of Appellate Procedure

.

In April of 1997, petitioner was convicted in the Circuit Court of McDowell Count y following a jury trial of first

- degree murder, first

- degree sexual assault, and abduction. The circuit court sentenced petitioner to a life term of incarceration without the possibility of parole for his

1 Since the filing of the appeal in this case, the superintendent at M t

. Olive Correctional Complex has changed

, and the superintendent is now Donnie Ames . The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate

Procedure

. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”

are n ow designated “superintendents.” See W. Va. Code § 15A

- 5

- 3. 

### FILED
December 20, 2019

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

murder conviction and a consecutive term of three to ten years of incarceration for his abduction

c onviction

. 2

A fter being allowed to withdraw a prior appeal, petitioner appeal ed his convictions on June 2, 1998. By order entered on March 9, 1999, this Court refused th at appeal. On February 4, 2002, petitioner filed a petition for a writ of habeas corpus, which the circuit court denied on May 16, 2002. On June 25, 2002, petitioner filed an appeal from the denial of that habeas petition. By order

entered on January 17, 2003, this Court refused that appeal.

Petitioner filed a second habeas petition on April 8, 2005, which the circuit court denied by order entered on May 11, 2005. Following petitioner’s appeal of the denial of that habeas petition, this Court reversed the circuit court’s May 11, 2005, order on November 29, 2005, and

remanded the case to the circuit court for the appoint ment of counsel and an evidentiary hearing. From December of 2005 to March of 2016, three different attorneys were appointed as habeas

counsel but w ere then allowed to withdraw at petitioner’s request. Petitioner also asked that he be permitted to represent himself, which request the circuit court granted by order entered on March
29, 2016. The circuit court held the evidentiary hearing on December 28 , 2016. On January 18,

2018

, the circuit court entered a comprehensive order reject ing the forty

- one grounds for relief set forth in petitio ner’s habeas petition and/or hi s Losh checklist. 3 Petitioner filed an appeal of the

circuit court ’s January 18, 2018, order on February 8, 2018.

However, on or about February 15, 2018, the recording of the February 28, 1996, grand jury proceeding that petitioner previously requested was discovered. Accordingly, the circuit court directed the preparation of the transcript by order entered on Februar y 15, 2018, and this Court remanded the case for further proceedings b y order entered on February 26, 2018. After remand, by order entered on February 28, 2018, the circuit court allowed the parties an opportunity for further briefing. While respondent did not file a brief in response to the preparation of the grand jury transcript, petitioner filed a brief on March 26, 2018. By order entered on April 16, 2018, the circuit court found that there was no reason to modify the January 18, 2018, order and reaffi rmed its denial of petitioner’s habeas petition. Petitioner now appeals both of the circuit court’s orders.

In Syllabus Point 1 of Anstey v. Ballard , 237 W. Va. 411, 787 S.E.2d 864 (2016 ), we held:

“In reviewing challenges to the findi ngs 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 err oneous standard; and questions

2 The State tried petitioner under a theory of felony murder; therefore, the circuit court did not sentence petitioner for his sexual assault conviction pursuant to Syllabus P oint 8 of State v. Williams , 172 W.Va. 295, 305 S.E.2d 251 (1983)

.

3 In Losh v. McKenzie , 166 W. Va. 762, 768

- 70, 277 S.E.2d 606, 611

- 12 (1981), we compiled a non exclusive list of potential grounds that a circuit court should address with a habeas petitioner as to whether each ground was being either waived or raised in the proceeding.3

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).

See also Syl. Pt. 1, State ex rel. Postelwaite v. Bechtold

, 158 W.Va. 479

, 212 S.E.2d 69 (1975) (holding that “[f] indings of fact made by a trial court in a post

- conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong ”).

On appeal, petitioner argues that the circui t court erred in denying his habeas petitio n. Respondent counter s that petitioner’s arguments are frivolous and/or as co mprising an incoherent “amalgamation of case law and procedural rules.” We decipher petitioner’s primary arguments as being: (1) the Dec ember 28, 2016, hearing did not constitute the evidentiary hearing to which petitioner was entitled under this Court’s November 29, 2005, order; (2) the circuit court failed to give petitioner an adequate opportunity to develop the record; and (3) the circ uit court failed to set forth findings of fact and conclusions of law sufficient to permit meaningful appellate review.

Based on our review of the circuit court’s January 18, 2018, and April 16, 2018, orders, we find that the findings and conclusions conta ined therein were sufficient to deny petitioner’s habeas petition. We further concur with respondent that, for the reasons set forth in the April 16, 2018, order, the circuit court was not required to hold an additional evidentiary hearing following the discovery of the recording of the grand jury proceeding in petitioner’s criminal case

.

H a ving reviewed the circuit court’s January 18, 2018, “ Comprehensive Order Denying Writ of Habeas Corpus Following Omnibus Evidentiary Hearing ” and its April 16, 2018, “Supplemental Order Following Comprehensive Order Denying Writ of Habeas Corpus Following Omnibus Evidentiary Hearing,” we hereby adopt and incorporate the circuit court’s well

- reasoned findings and conclusions, which we find address petitioner’s ass ignments of error. The Clerk is directed to attach a copy of each of those order s to this memorandum decision. Accordingly, we

conclude that the circuit court did not abuse its discretion in denying habeas relief.

For the foregoing reasons, we affirm the circuit court’s January 18, 2018, order denying petitioner’s second petition for a writ of habeas corpus and its April 16, 2018, order reaffirming the denial of the habeas petition after a remand following the discovery of the recording of the

Februar y 28, 1996, grand jury proceeding

. Affirm ed

.

ISSUED : December 20, 2019

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison