STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Scott B. Burgess, FILED 

Petitioner Below, Petitioner November 23, 2015 

vs) No. 14-0750 (Fayette County 12-C-280) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

David Ballard, Warden, 

Mount Olive Correctional Complex, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Scott B. Burgess, by counsel Christopher T. Pritt, appeals the Circuit Court of 

Fayette County’s July 02, 2014, order denying his petition for writ of habeas corpus. Respondent 

David Ballard, Warden, by counsel David A. Stackpole, filed a response. Petitioner filed a reply. 

On appeal, petitioner alleges that the circuit court erred in denying habeas relief where his trial 

counsel was constitutionally ineffective in that he failed to pursue a reasonable investigation 

prior to trial. 

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 2010, petitioner was indicted on one count of first-degree murder and one 

count of first-degree arson for setting his mobile home on fire while his ex-wife and another man 

were inside. The man subsequently died from smoke inhalation. The trial was initially scheduled 

for March 9, 2010. In March of 2010, petitioner’s first appointed counsel moved the circuit court 

for a continuance and the circuit court held a hearing regarding the continuance. The trial was 

then rescheduled to begin on May 26, 2010. However, petitioner’s trial did not begin on that 

date. Instead, between May of 2010 and April of 2011, the circuit court appointed four different 

attorneys to represent petitioner at trial. Petitioner filed motions to remove the first three of his 

counsel and to appoint substitute counsel based on petitioner’s claims of ineffective assistance.1 

J.B. Rees was appointed as fourth counsel and remained as such through the trial. 

In April of 2011, petitioner’s case came on for trial. At trial, the State presented evidence 

that petitioner was angry that his ex-wife was leaving the mobile home and that he threatened to 

burn her belongings. The State also presented evidence that petitioner made incriminating 

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Petitioner’s trial was continued with each new appointed counsel. 

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statements to a neighbor and a sheriff’s deputy about burning down the mobile home. Ultimately, 

the jury found petitioner guilty of first-degree murder during the commission of first-degree 

arson. In June of 2011, the circuit court sentenced petitioner to life, with a recommendation of 

mercy. 

In August of 2012, petitioner filed a pro se petition for writ of habeas corpus, and the 

circuit court appointed habeas counsel. In December of 2013, petitioner, through counsel, filed 

an amended petition for writ of habeas corpus and a Losh list in which he raised fourteen 

grounds: (1) denial of the right to a speedy trial; (2) ineffective assistance of counsel; (3) 

irregularities in arrest; (4) excessiveness or denial of bail; (5) refusal to subpoena witnesses; (6) 

lack of a full public hearing; (7) constitutional errors is evidentiary rulings; (8) sufficiency of 

evidence; (9) defendant’s absence from part of the proceedings; (10) improper communications 

between prosecutor or witness and jury; (11) cumulative effect of numerous errors; (12) newly 

discovered evidence; (13) transcript incomplete; and (14) incompetent and intoxicated witnesses 

testifying with knowledge of prosecution. 

In February of 2013, petitioner filed a motion to continue the omnibus evidentiary 

hearing on his amended petition scheduled for February 10, 2013. The circuit court denied 

petitioner’s motion and proceeded with the omnibus evidentiary hearing. At the hearing, 

petitioner testified that he met with trial counsel on only three occasions prior to trial and that he 

asked each of his appointed counsel to obtain an arson expert, but that none of them did so. 

Petitioner testified that an arson expert could have bolstered the truth of his contentions about the 

fire. Petitioner’s counsel, Mr. Rees, testified that neither he nor previous appointed counsel 

believed that an arson expert was necessary, especially after reviewing the State’s investigation 

documents. Additionally, Mr. Rees testified that he cross-examined the State’s arson expert at 

trial regarding the fire. In fact, Mr. Rees testified that he did not recall petitioner requesting an 

arson expert. Mr. Rees testified that he spent forty-nine-and-a-half hours in preparation for 

petitioner’s trial and an additional ten hours meeting with petitioner. At the close of the hearing, 

petitioner motioned the circuit court to conduct a second omnibus evidentiary hearing in order to 

take the sworn testimony of Nola Duncan regarding various witnesses at petitioner’s trial. 

In March of 2014, the circuit court conducted a second evidentiary hearing. Ms. Duncan 

testified that she observed two witnesses at the trial drinking beer outside the courthouse while 

the circuit court was in recess. Ms. Duncan testified that she did not report her observations to 

the State or the circuit court. Petitioner testified he had no information about this allegation 

during the trial and that he did not notice that the witnesses were intoxicated. At the close of this 

hearing, the circuit court asked the parties to submit proposed findings of facts and conclusions 

of law. Based on the evidence presented, the circuit court found that petitioner did not present 

any substantive evidence or testimony to support the allegations in his petition. Therefore, the 

circuit court denied habeas relief by order entered on July 2, 2014. It is from this order that 

petitioner now appeals. 

On appeal, petitioner alleges that the circuit court erred in denying habeas relief. 

Petitioner’s allegations are based on his contentions that his various appointed attorneys would 

not comply with his directions in regard to the trial of his case. The record is clear that these 

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same arguments were adjudicated below. This Court reviews a circuit court order 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). 

Upon our review and consideration of the circuit court’s final order, the parties’ 

arguments, and the record submitted on appeal, we find no error or abuse of discretion by the 

circuit court. Our review of the record supports the circuit court’s decision to deny petitioner’s 

petition for writ of habeas corpus based on petitioner’s failure to provide any examples, analysis, 

explanation, or proof of how any of his alleged errors prejudiced petitioner’s trial or impacted his 

constitutional rights. Having reviewed the circuit court’s order denying habeas relief, entered on 

July 2, 2014, we hereby adopt and incorporate that order’s well-reasoned findings of fact and 

conclusions of law as to this assignment of error. The Clerk is directed to attach a copy of the 

circuit court’s order to this memorandum decision. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 23, 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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