### 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

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

1statements 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

2same 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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