Markley v. Coleman

601 S.E.2d 49, 215 W. Va. 729, 2004 W. Va. LEXIS 128
CourtWest Virginia Supreme Court
DecidedJune 18, 2004
DocketNo. 31509
StatusPublished
Cited by45 cases

This text of 601 S.E.2d 49 (Markley v. Coleman) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markley v. Coleman, 601 S.E.2d 49, 215 W. Va. 729, 2004 W. Va. LEXIS 128 (W. Va. 2004).

Opinions

PER CURIAM.

The appellant Brian K. Markley appeals from a Berkeley County Circuit Court’s order denying the appellant’s second petition for a writ of habeas corpus.

We affirm the circuit court’s order.

I.

In January of 1992, the appellant was tried and convicted of two counts of first degree sexual assault, one count of malicious assault, and one count of attempted murder in the second degree.1 The appellant then filed a direct appeal to this Court. In October of 1993, this Court refused the appellant’s petition without discussion.

The appellant, with the assistance of counsel, then filed his first habeas corpus petition in circuit court. In December of 1998, the circuit court held an omnibus hearing, and, in May of 1999, the circuit court issued a detailed order denying all of the appellant’s grounds for seeking a writ of habeas corpus. The appellant appealed from the circuit court’s May 1999 order, and in March of 2000, this Court refused the appellant’s petition.

In April of 2002, the appellant — without the assistance of counsel — filed a second ha-beas corpus petition in circuit court. In his [732]*732second habeas corpus petition, the appellant reargued all of the allegations that the appellant had raised by counsel in the appellant’s original habeas corpus petition. The appellant also alleged for the first time that the appellant’s original habeas corpus counsel had acted ineffectively. In this appeal, we only address the allegation of ineffective assistance of habeas corpus counsel.2

As factual support for the appellant’s ineffective assistance of habeas corpus counsel claim, the appellant alleged that counsel failed to “investigate any of the evidence,” that counsel “did not speak to any of the witnesses,” and that counsel “did not focus on any other issues, other than the issue of ineffective [assistance of] counsel [at the trial level].”3 The appellant also alleged that his habeas corpus counsel was “not properly prepared or experienced” and “did not file documents that [the appellant] asked him to file” at the appellant’s original habeas corpus hearing.

On June 11, 2002, without a hearing, the circuit court entered an order .denying the appellant’s petition for habeas corpus relief. In its order, the circuit court readdressed all the habeas corpus allegations raised in the appellant’s first habeas corpus petition and found that those allegations were previously and finally adjudicated. Further, the circuit court found that the appellant “does not raise any of the three exceptions, namely ineffective assistance of counsel at the omnibus hearing; newly discovered evidence; or change in law which is favorable to petitioner [the appellant]. Therefore, pursuant to Losh [v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981)], the [circuit] court will summarily deny the petition.”4

The appellant, pro se, appeals from the circuit court’s June 2002 order; the appellant argues that the circuit court erred in denying the appellant’s petition for a second writ of habeas corpus.

In July of 2003, this Court accepted the appellant’s second habeas corpus petition.5

II.

In State ex rel. Valentine v. Watkins, 208 W.Va. 26, 537 S.E.2d 647 (2000), this Court discussed the standard for review of a circuit court’s decision to grant or to deny a habeas corpus petition. “When considering whether such a petition requesting post-conviction habeas corpus relief has stated grounds warranting the issuance of the writ, courts typically are afforded broad discretion.” 208 W.Va. at 31, 537 S.E.2d at 652. However, courts do not have unlimited discretion when granting or denying petitions for writs of habeas corpus. “This discretion is not unlimited, however, and the court must be guided by the necessities of each particular case.” Gibson v. Dale, 173 W.Va. 681, 688-89, 319 S.E.2d 806, 813 (1984).

West Virginia’s post-conviction habeas corpus statute, W.Va.Code, 53-4A-1 through -11 [1967] and the Rules Governing Posh-Conviction Habeas Corpus Proceedings in West Virginia [1999] ensure that a petitioner’s due process rights are protected. The post-conviction habeas corpus proceedings provide a petitioner with the opportunity to “raise any collateral issues which have not previously been fully and fairly litigated.” Losh v. McKenzie, 166 W.Va. 762, 764, 277 S.E.2d 606, 609 (1981). At the omnibus ha-[733]*733beas corpus hearing, a petitioner is required to raise all grounds known or that reasonably could be known by the petitioner. “Our post-conviction habeas corpus statute ... clearly contemplates that a person who has been convicted of a crime is ordinarily entitled, as a matter of right, to only one post-conviction habeas corpus proeeeding[.]” Syllabus Point 1, in part, Gibson v. Dale, 173 W.Va. 681, 319 S.E.2d 806 (1984).

At subsequent habeas corpus hearings, any grounds raised at a prior habeas corpus hearing are considered “fully adjudicated” and need not be addressed by the circuit court. “A prior omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known[.]” Syllabus Point 4, in part, Losh v. McKenzie.

Because a petitioner is required to raise all known grounds at their first habeas corpus hearing, there are only a few narrow grounds upon which circuit courts will grant additional habeas corpus hearings. “[A]n applicant may still petition the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing; newly discovered evidence; or, a change in the law, favorable to the applicant, which may be applied retroactively.” Syllabus Point 4, in part, Losh v. McKenzie.

Circuit courts have the discretion to deal with habeas corpus allegations in several different ways. A circuit court may “summarily deny unsupported claims that are randomly selected from the list of grounds” found in the Losh opinion. 166 W.Va. at 771, 277 S.E.2d at 612. Syllabus Point 1 of Per-due v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) states that “[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.”

A circuit court may find that a habeas corpus allegation has been previously waived or adjudicated. If a circuit court finds that a petitioner is “entitled to no relief, or that the contention or contentions and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court shall by order entered of record refuse to grant a writ, and such refusal shall constitute a final judgment.” W.Va.Code, 53-4A-3(a) [1981].

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Cite This Page — Counsel Stack

Bluebook (online)
601 S.E.2d 49, 215 W. Va. 729, 2004 W. Va. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markley-v-coleman-wva-2004.