James Aaron Cooper II v. Ronald Casto, Administrator (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS James Aaron Cooper II, Petitioner Below, Petitioner vs) No. 11-0929 (Cabell County 08-C-411) FILED May 24, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Ronald Casto, Administrator, Respondent Below, Respondent MEMORANDUM DECISION Petitioner James Aaron Cooper II, by counsel Ronald G. Salmons, appeals the September 28, 2010 order of the Circuit Court of Cabell County denying his petition for writ of habeas corpus. Respondent Casto, by counsel Thomas W. Rodd, has filed a response, to which petitioner has filed a reply1. 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 is appropriate under Rule 21 of the Rules of Appellate Procedure. In 2001, petitioner was indicted on one count of attempted first degree robbery and one count of first degree robbery. Following a jury trial in September of 2002, petitioner was found guilty of both counts and sentenced to a term of incarceration of twenty years for attempted first degree robbery and a term of incarceration of forty years for first degree robbery, said sentences to run consecutively. Petitioner appealed this conviction, and the Court affirmed the same in State v. Cooper, 217 W.Va. 613, 619 S.E.2d 126 (2005). On January 2, 2007, petitioner filed a motion in arrest of judgment arguing that the indictment in his criminal case was defective because it contained definitions of attempted robbery and first degree robbery that were not in effect at the time of the crimes commission. Following a hearing, the circuit court upheld petitioner s conviction for first degree robbery but vacated his conviction for attempted first degree robbery. Petitioner was then resentenced to serve forty years of incarceration for his conviction of first degree robbery. Petitioner appealed this ruling, and the Court refused his appeal by order entered on October 24, 2007. On May 9, 2008, petitioner filed the instant petition for writ of habeas corpus; thereafter various attorneys were appointed to represent him in the circuit court. An amended petition was filed in March of 2009, after which the circuit court denied the petition without holding an evidentiary hearing. 1 The petition in this matter originally listed Teresa Waid as respondent. However, petitioner has subsequently been incarcerated in a different facility, and the appropriate administrator has been substituted as respondent in this matter. 1 On appeal, petitioner alleges two assignments of error. First, he alleges that the circuit court erred in denying his petition below without first holding an evidentiary hearing to develop his contentions, including his allegation of ineffective assistance of counsel. Citing the Fourth Circuit Court of Appeals decision in Sheftice v. Boles, 377 F.2d 423 (4th Cir. 1967), petitioner argues that because he alleged federal constitutional violations in his state court habeas proceeding, the circuit court was required to grant him a full evidentiary hearing. Further, petitioner argues that he has never had an opportunity to examine his prior counsel, and alleges that it was error to deny him that opportunity. Additionally, petitioner asserts that his petition raises collateral issues which have not previously been fully and fairly litigated. In his second assignment of error, petitioner alleges that the circuit court erred in its findings of fact and conclusions of law in the order from which he appeals. Specifically, petitioner argues that the circuit court erred in finding that certain issues were waived and that other issues were mere recitals and lacked development. Petitioner also argues that the circuit court erred in finding certain contentions moot because he never had an evidentiary hearing during which to factually develop them. According to petitioner, certain issues that the circuit court found to be fully and fairly litigated were outside the scope of his prior appeal and therefore should have been considered on the merits. This Court has previously held that [i]n 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. Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). After careful consideration of the parties arguments, this Court concludes that the circuit court did not abuse its discretion in denying the petition for writ of habeas corpus. The Court finds no merit in petitioner s contention that Sheftice mandates that he receive an evidentiary hearing. In fact, in quoting that decision, petitioner omitted relevant language that is contrary to his assertion. That opinion states that the West Virginia statute clearly states that a matter will not be considered to have been previously adjudicated unless there has been a full and fair hearing in the state courts, or a waiver by the prisoner . . . . Sheftice v. Boles, 377 F.2d 423, 427 (4th Cir. 1967) (emphasis added). In regard to petitioner s second assignment of error, the court finds no error in the circuit court s findings of fact and conclusions of law. Having reviewed the circuit court s Order Denying Petition For Writ Of Habeas Corpus entered on September 28, 2010, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision. For the foregoing reasons, we find no error in the decision of the circuit court and its September 28, 2010 order denying the petition for writ of habeas corpus is affirmed. 2 Affirmed. ISSUED: May 24, 2013 CONCURRED IN BY: Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II 3
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