1 

### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

Julia Surbaugh
, Petitioner Below, Petitioner

vs. ) No. 1 9

- 0 739 ( Webster County 1 7

- P

- 22 )

J.D. Sallaz
, Superintendent
, Lakin Correctional Center
, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Julia Surbaugh

, by counsel Steven B. Nanners and Jared S. Frame , appeals the August 14

, 2019, order of the Circuit Court of Webster County d enying her peti tion for a writ of habeas corpus. Respondent J.D. Sallaz , Superintendent, Lakin Correctional Center , by counsel Gordon L. Mowen, II , filed a response in support of the circuit court’s order. Petitioner filed a reply.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately p resented, 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 r easons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 2010, petitioner was indicted in the Circuit Court of Webster County for the murder of
her husband

, Michael Surbaugh, w ho was having an extramarital affair. Following petitioner’s
conviction by a jury for first

- degree murder , the circuit court sentenced petitioner to a life term of incarceration without the possibility of parole. In State v. Surbaugh (“ Surbaugh I ”), 230 W. Va.
212

, 737 S.E.2d 240 (2012), this Court reversed petitioner’s conviction , ruling that “[u] pon retrial,

. . . petitioner is entitled to an instruction on good character, if such evidence is introduced. ” Id. at 229, 737 S.E.2d at 257. After a second tria l, a jury found petitioner guilty of first

- degree murder, and she was sentenced to a life term of incarceration without the possibility of parole. This Court 

### FILED September 23, 2020

EDYTHE NASH GAISER , CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2

affirmed petitioner’s conviction following the second trial in State v. Surbaugh (“ Surbaugh II ”),
237 W. Va. 242

, 786 S.E.2d 60 1

, cert. denied , __ U.S. __, 137 S.Ct. 448, 196 L.Ed

. 2d 331 (2016).

On October 31, 2017, petitioner filed a petition for a writ of habeas corpus in the circuit court. The circuit court appointed habeas counsel to represent pe titioner. Petitioner filed a supplemental habeas petition on January 2, 2019. At a March 19, 2019, omnibus hearing, the circuit court dismissed twenty

- one of petitioner’s thirty

- five asserted grounds for relief, finding that those issues were adjudicated i n petitioner’s criminal proceedings or on appeal in either Surbaugh I or Surbaugh II . The circuit court dismissed one additional ground because petitioner voluntarily withdrew it. Petitioner subsequently testified in support of the remaining grounds for

re lief

. 1 Respondent presented the testimony of the attorney who represented petitioner at her
second tr ia l and the attorney who represented petitioner on appeal in Surbaugh II

. 2 By order entered on August 14

, 2019, the circuit court noted that the majority of petitioner’s claims had been dismissed and that it would address the remaining thirteen grounds including those involving alleged ineffective assistance of trial counsel and of appellate counsel in Surbaug h II . In its August 14, 2019, order, the circuit court found that none of the remaining grounds entitled petitioner to habeas relief and denied the petition.

Petitioner now appeals. This Court review s a circuit court order denying a petition for a writ of habeas corpus under the following standard :

“In reviewing challenges to the findings and conclusions of the circuit court

1 At the end of petitioner’s testimony on direct examination , she testified that she would like for the circuit court to hold the record open because she intended to, with her own funds, have a computer simulation produced of her husband’s shooting based on the testimony of Professor Andrew Wheeler, her expert on blood splatter evidenc e . On appeal, petitioner argues that the circuit court never ruled on her request to leave the record open. We find that petitioner’s request was precluded by the circuit court’s dismissal of those claims that were adjudicated in State v. Surbaugh (“ Surbau gh II

”), 237 W. Va. 242

, 786 S.E.2d 60 1

, cert. denied , __ U.S. __, 137 S.Ct. 448, 196 L.Ed2d 331 (2016), because, in Surbaugh II , this Court rejected the argument that the
evidence was insufficient to convict petitioner of first

- degree murder based on Prof essor Wheeler’s testimony at petitioner’s second trial. Id. at 259, 786 S.E.2d at 618.

2 On June 16, 2020, petitioner filed a motion to supplement the appellate record with phone logs from the CenturyLink Inmate Communication System to contradict the testimony of her appellate attorney in State v. Surbaugh (“ Surbaugh II ”), 237 W. Va. 242

, 786 S.E.2d 60 1

, cert. denied , __ U.S. __, 137 S.Ct. 448, 196 L.Ed2d 331 (2016), who stated he had telephone communications with petitioner at her correctional facility. The circuit court found that

, during the attorney’s testimony, he admitted to at least one “oversight or error” during his representation of petitioner on appeal by failing to timely sen d to petitioner a copy of the opening brief in Surbaugh

II

. The circuit court further found that

, to the extent that there were deficiencies in the attorney’s

re presentation of petitioner, those deficiencies did not prejudice petitioner. As discussed below, we adopt this and the other findings of the circuit court . T herefore, we deny petitioner’s motion to supplement the appellate record as the proffered logs would not change our decision

.3

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).

Syl. Pt. 1, Anstey v. Ballard

, 237 W. Va. 411, 787 S.E.2d 864 (2016)

. “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

. ” Syl. Pt. 1, State ex rel. Postelwaite v.
Bechtold , 158 W. Va. 479, 212 S.E.2d 69 (1975)

. Furthermore, “ [o] n an appeal to this Court [,] the appella nt bears the burden of showing that there was error in the proceedings below resulting in the judgment of which [she] complains, all presumptions being in favor of the correctness of the proceedings and judgment in and of the trial court. ” Syl. Pt. 1

, Whit e v. Haines , 215 W. Va. 698, 601 S.E.2d 18 (2004) (quoting Syl. Pt. 2, Perdue v. Coiner , 156 W. Va. 467, 194 S.E.2d 657 (1973) ).

On appeal , petitioner raises a single generic assignment of error: that the circuit court erred in denying her petition for a writ of habeas corpus. Respondent counters that the circuit court properly denied the petition. We agree with respondent. Having reviewed the circuit court’s August 14

, 2019, “ Order,” we hereby adopt and incorporate the circuit court’s well

- reasoned findings and conclusions

, which we find address petitioner’s assignment of error . The Clerk is directed to attach a copy of the August 14, 2019, order to this memorandum decision. Ac cordingly,
we conclude that the circuit court did not abuse its discretion in denying the habeas petition.

For the foregoing reasons, we affirm the circuit court’s August 14

, 2019, order d eny ing the
instant petition for a writ of habeas corpus

.

Affirm ed

.

ISSUED: September 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison