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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Keith A.,

Petitioner Below, Petitioner

vs.) No. 21-0151 (Gilmer County 2019-P-30)

Karen Pszczolkowski, Superintendent, Northern

Regional Correctional Center,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Keith A.,1 by counsel Andrew Boling Chattin, appeals the order of the Circuit 

Court of Gilmer County, entered on October 28, 2020, denying his petition for a post-conviction 

writ of habeas corpus. Respondent State of West Virginia appears by counsel Patrick Morrisey and 

Katherine M. Smith. 

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.

Mr. A. is incarcerated for a collective term of ten to twenty years for his conviction of three 

counts of sexual abuse by a parent and three counts of sexual abuse in the first degree. Mr. A.’s 

conviction was affirmed on direct appeal in State v. Keith A., No. 17-0262, 2018 WL 2175545 (W. 

Va. May 11, 2018) (memorandum decision). Mr. A. filed a petition for writ of habeas corpus in 

the Circuit Court of Gilmer County in May of 2019. The circuit court conducted an omnibus 

hearing and denied Mr. A.’s petition by a final order entered on October 28, 2020. 

On appeal, Mr. A. asserts seven assignments of error. He argues that the circuit court failed 

to recognize that his state and federal due process rights were violated when: 1) the trial court 

denied his motion to dismiss the indictment because his criminal charges arose from the same 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. 

Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

FILED

April 20, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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circumstances as those set forth in an abuse and neglect petition naming him as a respondent, and 

the State therefore was collaterally estopped from criminal prosecution; 2) the trial court allowed 

the introduction of prejudicial evidence of disciplinary records showing that Mr. A. viewed 

pornography at his place of employment; 3) the trial court denied his motion for judgment of 

acquittal based on the insufficiency of the evidence; 4) the trial court allowed the introduction of 

evidence of a vulgar text message Mr. A. sent to his daughter, the victim; 5) the trial court allowed 

the State to elicit perjured testimony from a witness; 6) the trial court failed to address improper 

communication between a witness and the jury; and 7) Mr. A. received ineffective assistance of 

counsel. 

We review the denial of a petition for a writ of habeas corpus 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. 

Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).

 

We find that Mr. A.’s first, second, third, and fourth assignments of error were squarely 

addressed on direct appeal. In Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), this 

Court explained that our post-conviction habeas corpus statute found in Chapter 53, Article 4A of 

our code

contemplates that every person convicted of a crime shall have a fair trial in the 

circuit court, an opportunity to apply for an appeal to this Court, and one omnibus 

post-conviction habeas corpus hearing at which he may raise any collateral issues 

which have not previously been fully and fairly litigated.

Losh, 166 W. Va. at 764, 277 S.E.2d at 609 (emphasis added). Furthermore, Mr. A. has failed to 

offer any reason that his fifth and sixth assignments of error (about which he offers little 

discussion) were not or could not have been presented on direct appeal. “[T]here is a rebuttable 

presumption that petitioner intelligently and knowingly waived any contention or ground in fact 

or law relied on in support of his petition for habeas corpus which he could have advanced on 

direct appeal but which he failed to so advance.” Syl. Pt. 1, in part, Ford v. Coiner, 156 W. Va. 

362, 196 S.E.2d 91 (1972). For these reasons, we find that Mr. A.’s first six assignments of error 

are not properly before the Court because each was either fully and fairly litigated or waived. 

With respect to Mr. A.’s seventh and final assignment of error (that his trial counsel was 

ineffective), he conclusively “alleges” a number of actions that his trial counsel “should have” 

taken. Mr. A.’s argument in this regard is offered without elucidation or citation to the appendix 

record on appeal. Critically, despite the habeas court’s having conducted an omnibus hearing, Mr. 

A. does not refer to any evidence derived therefrom. Consequently, Mr. A.’s brief fails to meet our 

standards for presentation of an appeal. See W. Va. R. App. P. 10(c)(7) (“The argument must 

contain appropriate and specific citations to the record on appeal, including citations that pinpoint 
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when and how the issues in the assignments of error were presented to the lower tribunal.”).

Moreover, the habeas court denied the petition for relief on this ground upon finding that Mr. A. 

made only “vague, blanketed[,] and generalized assertions[,]” but Mr. A. nevertheless failed to 

expound on his claim of ineffective assistance on appeal. We are, therefore, presented with no 

reason to find that Mr. A.’s counsel’s performance was objectively deficient or that the trial 

proceedings might have yielded a difference outcome but for unprofessional errors of counsel. See

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: April 20, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice Alan D. Moats sitting by temporary assignment