1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Roy Wisotzkey

, P etitioner Below

, Petitioner

vs ) No. 20

- 0 494 ( Berkeley County 18

- C

- 2 38 )

Donnie Ames

, Superintendent,

Mt. Olive Correctional C omplex

, Respondent Below, Respondent



### MEMORANDUM DECISION

Self

- represented p etitioner Roy Wisotzkey appeals t he March 26 , 2020, order of the

Circuit Court of Berkeley County d ismiss ing his petition for a writ of habeas corpus

. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional C omplex

, by counsel Andrea Nease P roper , file d a response in suppo rt 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 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.

Following a jury t rial in August of 2013, petitioner was convicted in the Circuit Court of Berkeley County o f felony murder, first

- degree robbery, conspiracy, and burglary. The circuit court sentenced p etitioner to the following terms of incarceration: life with the possibility of parole eligibility for the fel ony murder conviction ; fifty years for the first

- degree robbery conviction ; one

to five years for the conspiracy conviction ; and one to fifteen years for the burglary conviction.

The circuit court ran t he felony murder and robbery sentences consecutively to each other and concurrently to the sentences for conspiracy and burglary. 

### FILED

March 16, 2021

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Petitioner appealed his conviction s in State v. Wisotzkey (“ Wisotzkey I ”)

, No. 13

- 1240, 2014 WL 6607462 (W. Va. Nov ember 21, 2014) (memorandum decision) , and raised the following assignments of error: (1) insufficient evidence to sustain petitioner’s convictions; (2) improper denial of petitioner’ s proposed petit larceny jury ins truction as a lesser

- included offense of robbery ; (3) abuse of discretion in failing to suppress petitioner ’ s statements to the police ; and (4) error in allowing the State to proceed to trial on two separate robbery counts: (a) a felony

murder count based on the robbery of the wife; and (b) a separate count based on the robbery of the

husband

. T his Court rejected the assignments of error and a ffirmed petitioner’s convictions. See

i d. at *4

- 10.

On May 9, 2016, petitioner filed a petition for writ of habeas corpus in the C ircuit C ourt of Berkeley County . The circuit court appointed habeas counsel . On October 17, 2016, habeas

counsel filed an amended petition and a Losh check list

. 1 In the amended petition, petitioner raised sixteen grounds for relief. 2 By order entered on November 30, 2016, the circuit court denied habeas relief, finding that “[u]pon review of the [a]mended [p]etition for [a writ of] [h]abeas [c]orpus, the [r]ecord . . ., and relevant legal authority, . . . no hearing is necessary[.]” Petitioner did not appeal the circuit court’s November 30, 2016, order.

On July 25, 2017, petitioner filed a second habeas petition in the circuit court , alleging

ineffective assistance of habeas counsel. In alleging that habeas counsel failed to develop his grounds for relief, petitioner stated on the second habeas corpus petition form that he “ did not [a]ppeal [the denial of the first habeas petition] because habeas counsel filed an amended habeas

corpus pet ition with a mere recitation of the grounds without factual support or case law . Due to

the ineffective assistance of habeas counsel [,] there were no grounds for [ relief ] that were fully developed for appeal purposes.”

By order entered on August 15, 201 7 , the circuit court determined that it could dispose of

the second petition based on the “present record.” The circuit court found that “[d]espite [p]etitioner’s argument, a review of [p]etitioner’s case history reveals that [p]etitioner’s habeas

1 The checklist of grounds typically used in habeas corpus proceedings, usually referred to

as the Losh checklist, originates from our decision in Losh v. McKenzie , 166 W. Va. 762, 277 S.E.2d 606 (1981), where we set forth the most common grounds for habeas relief. See 166 W. Va.

at 768

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

- 12.

2 The sixteen grounds for relief raised in the October 17, 2016, amended habeas petition were: (1) m ental incompetency at the time of the offenses; (2) denial of counsel; (3) unintelligent waiver of counsel; (4) coerced confessions; (5) denial of bail; (6) prejudicial pretrial publicity; (7) improper venue; (8) mental incompetency at the time of trial; ( 9) incompetency to stand trial due to drug use; (10) constitutional errors involving the denial of petitioner’s motion to suppress; (11) improper denial of a petit larceny jury instruction as a lesser

- included offense of robbery ; (12) prejudicial statement s made by the presiding judge; (13) unconstitutionality of the felony murder statute; (14) insufficiency of the evidence; (15) excessive sentence; and (16) ineffective assistance

of trial counsel.3 counsel adequately prepared for the first habeas proceeding.” Accordingly, the circuit court denied the second petition, concluding that “[h]abeas counsel cannot be found ineffective simply because a habeas petition is found unsuccessful, and [p]etitioner has not shown that his habeas counsel’s performance fell below an objective standard of reasonableness or that, but for habeas counsel’s alleged errors, the first habeas petition would have been successful.” In Wisotzkey v. Terry (“ Wisot z key II ”) , No. 17

- 0773

, 201 8 WL 1719541 (W. Va. April 9, 2018) (memorandum decision), this Court affirmed the circuit court’s denial of the second habeas petition, adopting its

“ well

- reasoned findings and conclusions [

. ] ” Id. at *3.

On July 24, 2018, petitioner filed the instant habeas petition

— his third

— in the circuit

court, stating that he was “reassert[ing] all of the preceding grounds for habeas corpus relief”

because habeas counsel failed “ to advise him ” that he could appeal the circuit court’s November 30, 2016, orde r denying the first petition

. P etitioner stated on the third habeas corpus petition form

t hat he “did not appeal [the denial of the first habeas petition] due to the fact that my court appointed habeas counsel failed to notify me of my rights and failed to perfect an appeal from the circuit court’s denial of relief.” This response contradicted petitioner’s answer in the second petition where he stated that he did not appeal the denial of the first petition because he did not believe that any appeal would be meritorious. 3 B y order entered on March 26, 2020, the circuit

court d ismissed the instant petition, concludi ng that “[n]o evidentiary hearing is required for the [c]ourt to make its findings and conclusions because all of the matters alleged can readily be determined by reference to the record in the underlying criminal case . . . and . . . [p]etitioner’s prior habeas corpus cases[.]”

Petitioner now appeals the circuit court’s March 26, 2020, order d ismiss ing the instant habeas petition. This Court review s a circuit court order dismissing a habeas petition under the following standard s :

“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 subj ect to a de novo review.” Syl. Pt. 1, Mathena v. Haines , 219 W. Va. 417, 633 S.E.2d 771 (2006).

. . . .

“‘ A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary

3 Petitioner completed forms in order to file his second a nd third habeas petitions that included a question, in which he was asked to explain why he did not file an appeal from the denial of the first habeas petition. This question was numbered 11(d) on the form for the second petition and 11(c) on the form for the instant petition.4 evidence filed therewith show to such court ’ s satisfaction that the petitioner is entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner , 156 W. Va. 467, 194

S.E.2d 6 57 (1973).” Syl. Pt. 2, White v. Haines , 215 W. Va. 698, 601 S.E.2d 18 (2004).

Syl. Pt s

. 1 & 3

, Anstey v. Ballard

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

.

The standards for evaluating an ineffective assistance of counsel claim are as follows:

“In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two

- pronged test established in Strickland v. Washington

, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel ’ s performance

was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceedings would have been different.” Syllabus Point 5, State v. Miller , 194 W.Va. 3, 459 S.E.2d 114 (199 5).

. . . .

In deciding ineffective of [sic] assistance claims, a court need not address both prongs of the conjunctive standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller , 194 W.Va. 3, 459

S.E. 2d 114 (1995), but may dispose of such a claim based solely on a petitioner ’ s failure to meet either prong of the test.

Syl. Pts. 1 & 5, State ex rel. Daniel v. Legursky , 195 W. Va. 314, 465 S.E.2d 416 (1995).

On appeal, petitioner argues that the cir cuit court erred in dismiss ing the instant petition because habeas counsel failed to advise him that he could appeal the denial of the first petition

. Respondent counters that the circuit court properly dismissed the instant petition. We agree with respond ent.

In Losh v. McKenzie , 166 W. Va. 762, 277 S.E.2d 606 (1981), we cautioned habeas petitioner s against providing “ false answers to any of the questions posed in the

. . . petition form .”

Id. at 771, 277 S.E.2d at 612. Here, petitioner was asked to explain why he did not file an appeal from the denial of the first habeas petition and gave contradictory answers when filing his second and third habeas petitions. In filing the instant petition, petitioner stat ed that habeas counsel failed to advise him of his right to appeal the November 30, 2016, order denying his first habeas petition

. This response is contradicted by his answer in the second petition where he stated that he did not appeal th e denial of the first petition because he did not believe that any appeal would be

meritorious. In the second petition, petitioner argued that counsel provided ineffective assistance in the first habeas proceeding. In Wisotzkey II , we adopted the circuit court’s well

- reasoned findings t hat “[p]etitioner has not shown that his habeas counsel’s performance fell below an objective standard of reasonableness or that, but for habeas counsel’s alleged errors, the first habeas petition would have been successful .” 2018 WL 1719541 , at *4. Accordingly , petitioner5 changed his focus from habeas counsel’s performance in the first proceeding to the lack of an appeal following that proceeding. However, because petitioner failed to include the allegation that

habeas counsel did not advise him of his right to appeal in the second petition, we find that petitioner’s inclusion of that allegation in the instant petition is not credible. Therefore , we conclude that the circuit court did not abuse its discretion in dismissing the instant habeas petition pursuant to S yl labus P oint 3 of Anstey

. 237 W. Va. at 41 1 , 787 S.E.2d at 86 4; see Losh

, 166 W. Va.

at 7 71 , 277 S.E.2d at 612 (finding that a circuit court may “ summarily deny unsupported claims ”)

.

For the foregoing reasons, we affirm the circuit court’s March 26, 2020, order dismissing petitioner’s instant petition for a writ of habeas corpus.

Affirmed

.

ISSUED : March 16, 2021

CONCURRED IN BY :

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton