### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

James H. Farris, 

### FILED Petitioner Below, Petitioner 

### May 22, 2017

RORY L. PERRY II, CLERK vs) No. 16-0438 (Jefferson County 14-C-126) SUPREME COURT OF APPEALS

OF WEST VIRGINIA Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner James H. Farris, by counsel Christopher P. Stroech, appeals the Circuit Court of Jefferson County’s April 26, 2016, order denying his petition for writ of habeas corpus. Respondent Marvin Plumley, 1 Warden, by counsel Brandon C.H. Sims, filed a response. On appeal, petitioner argues that the circuit court erred in denying his habeas petition on the grounds of ineffective assistance of prior habeas counsel.

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 September of 1996, petitioner was indicted on four counts of second-degree sexual assault. Following a jury trial, petitioner was convicted of all counts in December of 1996. The circuit court thereafter sentenced petitioner to a term of incarceration of ten to twenty-five years for each count, with three of the sentences to be served consecutively and one sentence to be served concurrently to the others. Thereafter, petitioner appealed his conviction to this Court, and we refused the same by order entered in September of 1997.

In April of 1999, petitioner filed a petition for writ of habeas corpus in the circuit court that included an allegation that his trial counsel was ineffective. Shortly after filing that petition, petitioner filed a petition for writ of habeas corpus directly with this Court, which was refused in April of 1999. The circuit court held an evidentiary hearing in January of 2000, after which it

1 Petitioner originally listed David Ballard, Warden of Mt. Olive Correctional Center, as respondent in this matter. However, petitioner is no longer housed at Mt. Olive Correctional Center and is, instead, housed at Huttonsville Correctional Center. Pursuant to Rule 41(c) of the Rules of Appellate Procedure, the name of the correct public officer has been substituted as respondent in this action.

1denied the petition. Around this same time, petitioner filed a prisoner civil rights action against his trial counsel in the United States District Court for the Northern District of West Virginia. That case was dismissed by order entered in September of 2001. Thereafter, petitioner filed a number of additional petitions for writ of habeas corpus with the circuit court, this Court, and the United States District Court for the Northern District of West Virginia. These petitions were all denied and any appeals to this Court were unsuccessful.

In January of 2014, petitioner filed what the circuit court indicated amounts to his ninth petition for writ of habeas corpus in the circuit court. The petition alleged that petitioner’s prior habeas counsel was ineffective for failing to allege that a different habeas attorney who represented petitioner was ineffective. Thereafter, the circuit court held an evidentiary hearing in May of 2015 during which petitioner testified that he did not direct his habeas counsel to allege that his prior habeas counsel was ineffective. Petitioner’s counsel confirmed that petitioner did not wish to raise the issue during the prior habeas proceeding and went on to testify that petitioner sent him multiple, detailed correspondences in which petitioner outlined exactly the grounds he wished to raise in his habeas petition. Ultimately, petitioner’s counsel testified that he did not include a claim for ineffective assistance of prior habeas counsel because it did not appear viable. Ultimately, by order entered in April of 2016, the circuit court denied the petition for writ of habeas corpus. It is from this order that petitioner appeals.

This Court reviews appeals of circuit court orders 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).

On appeal to this Court, petitioner argues that he was entitled to habeas relief due to habeas counsel’s ineffective representation. The Court, however, does not agree. Upon our review and consideration of the circuit court’s 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 post-conviction habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit court’s April 26, 2016, “Order Denying Writ of Habeas Corpus” to this memorandum decision.

For the foregoing reasons, we affirm.

2Affirmed.

ISSUED: May 22, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

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