Rodger M. v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Rodger M., Petitioner Below, Petitioner FILED June 26, 2015 vs) No. 14-0820 (Jackson County l1-C-101) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Rodger M.,1 appearing pro se, appeals the order of the Circuit Court of Jackson County, entered August 8, 2014, that denied his petition for writ of habeas corpus. Respondent David Ballard, Warden, Mt. Olive Correctional Complex, by counsel, Derek A. Knopp, filed a response, and petitioner filed a reply.2 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. In 2002, petitioner was indicted by the Grand Jury of Jackson County on nine counts of child abuse creating a risk of injury pursuant to West Virginia Code § 61-8D-3(c) and six counts of sexual abuse by a parent, guardian, or custodian pursuant to West Virginia Code § 61-8D-5(a). On November 12, 2002, a jury convicted petitioner on eight counts alleging child abuse and on four counts alleging sexual abuse. Petitioner subsequently filed a motion for a judgment of acquittal. At a December 20, 2002 hearing, the circuit court granted the motion, in part, and vacated petitioner’s convictions on six of the counts regarding child abuse. As a result, the circuit court sentenced petitioner to an indeterminate term of twenty-two to fifty years in prison for two convictions of child abuse creating a risk of injury and four convictions of sexual abuse by a parent, guardian, or custodian. 1 Consistent with our practice in cases involving sensitive facts, we use only petitioner’s first name and last initial. See State ex rel. W.Va. Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987). 2 Petitioner also filed in this Court numerous motions for the appointment of appellate counsel, which we address herein. See infra. 1 Petitioner subsequently appealed his remaining convictions raising two issues: (1) petitioner was not competent to stand trial; and (2) the circuit court should have also dismissed the four sexual abuse convictions because the female minor victim’s testimony was uncorroborated and inherently incredible. In making his first assignment of error, petitioner stated that that personality testing performed by the Division of Corrections showed that individuals like petitioner often make unrealistic demands and are usually suspicious of others. Petitioner further stated that the examiners observed that he exhibited paranoid features. On October 6, 2005, this Court refused petitioner’s criminal appeal. On July 25, 2011, petitioner filed a petition for writ of habeas corpus in the Circuit Court of Fayette County3 which properly transferred the petition to the Circuit Court of Jackson County. Petitioner raised twenty-two grounds for relief under three general categories: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; and (3) judicial misconduct. Because of the allegations of misconduct against Judge Evans, the case was reassigned to Judge Nibert.4 The circuit court appointed petitioner habeas counsel and directed that an answer to the petition be filed by respondent warden. Thereafter, the circuit court entered a twenty-one page order on August 8, 2014, that explained that petitioner was proceeding pro se because he failed to cooperate with any of the attorneys appointed to represent him, determined that the allegations in the petition did not require a hearing, and denied the grounds petitioner asserted for habeas relief. Petitioner now appeals the circuit court’s August 8, 2014, order denying his petition. We apply the following standard of review in habeas cases: 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. Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006). Also, “[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 evidence filed therewith show to such court’s satisfaction that the petitioner is entitled to no relief.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657, 658 (1973). On appeal, petitioner generally asserts that trial counsel, the prosecutor, and the trial judge conspired to incarcerate him. Respondent warden counters that the circuit court correctly rejected 3 At the time petitioner filed his petition, he was incarcerated at Mt. Olive Correctional Complex, which is in Fayette County. 4 Petitioner later filed a motion for Judge Nibert’s disqualification. However, by an order entered May 30, 2012, then Chief-Justice Ketchum denied the motion and directed Judge Nibert to continue presiding in the case. 2 petitioner’s grounds for relief and denied the petition. We agree with respondent warden. We find that the circuit court’s order denying habeas relief (1) clearly notes that it was petitioner’s failure to cooperate with the various habeas counsel appointed to represent petitioner that caused him to proceed pro se in this case; (2) sufficiently explains that the allegations in the petition did not require a hearing; and (3) adequately refutes the grounds petitioner asserted for habeas relief. Thus, we address only petitioner’s contention that the circuit court did not deal with all of his issues and his motions filed in this Court for the appointment of appellate counsel. First, petitioner asserts that his petition raised more than twenty-two grounds for relief. As indicated supra, after reviewing the petition, we find that the circuit court’s order sufficiently addresses the grounds argued therein. Furthermore, we find that the circuit court did not need to address the cumulative error doctrine because the court correctly determined that none of the alleged errors had merit. Accordingly, we conclude that the circuit court did not abuse its discretion in denying the petition. Second, given that petitioner’s appeal lacks merit, we deny the multiple motions filed in this Court for the appointment of appellate counsel. Having reviewed the circuit court’s “Opinion Order Denying Writ of Habeas Corpus Without a Hearing,” entered on August 8, 2014, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions.5 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 of Jackson County and affirm its August 8, 2014, order, denying petitioner’s petition for writ of habeas corpus. Affirmed. ISSUED: June 26, 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 5 Certain names and dates have been redacted to protect the identities of the minor victims. See fn. 1. 3
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