Kenneth M. v. Karen Pszczolkowski, Warden

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Kenneth M., Petitioner Below, Petitioner FILED September 5, 2017 vs) No. 16-0259 (Harrison County 12-C-394-1) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Karen Pszczolkowski, Warden, Northern Correctional Facility, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Kenneth M., by counsel Rocco E. Mazzei, appeals the Circuit Court of Harrison County’s February 2, 2016, order denying his amended petition for writ of habeas corpus.1 Respondent, Karen Pszczolkowski, Warden of Northern Correctional Facility, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying his request for habeas relief on the basis of ineffective assistance of trial 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 2009, following a jury trial, petitioner was convicted of multiple counts of first-degree sexual assault; sexual abuse by a parent, guardian, custodian or other person in a position of trust; and incest. For those crimes, petitioner was sentenced to a cumulative prison term of thirty to seventy years. Petitioner’s direct appeal of his conviction and sentence was refused by this Court in 2010.

In 2013, petitioner, pro se, filed a petition for writ of habeas corpus. Counsel was appointed thereafter, and petitioner, by counsel, filed an amended petition for writ of habeas corpus. In his amended petition, petitioner argued that his trial counsel was constitutionally

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

ineffective; that his arrest was illegal due to irregularities; and that his indictment was illegally delayed.

In February of 2015, the circuit court held an omnibus evidentiary hearing on petitioner’s amended petition. At that hearing, petitioner testified that his trial counsel was ineffective for failing to strike two jurors during jury voir dire; failing to investigate the potential testimony of petitioner’s sons; and failing to call those sons as trial witnesses. By order entered on February 2, 2016, the circuit court denied petitioner’s amended petition, and this appeal followed.

This Court reviews a circuit court order 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).

Petitioner’s sole contention before this Court is that he was entitled to habeas relief because his trial counsel was constitutionally ineffective. Petitioner argues, as he did below, that his trial counsel was ineffective for failing to strike two jurors; failing to investigate the potential testimony of his sons; and failing to call those sons as trial witnesses.2

Having reviewed the record before us, 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

2 Petitioner also argues that his trial counsel failed to investigate the potential testimony of his sister-in-law and failed to call her as a trial witness. We have long held that a habeas petitioner bears the burden of establishing that he is entitled to the relief sought. See Markley v. Coleman, 215 W.Va. 729, 734, 601 S.E.2d 49, 54 (2004) (noting that allegations must have adequate factual support for appointment of counsel, hearing, and/or issuance of writ); Syl. Pts. 1 and 2, State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486, 487 (1966) (burden in habeas proceedings rests on habeas petitioner); Stanley v. Dale, 171 W.Va. 192, 194, 298 S.E.2d 225, 227-28 (1982) (noting that habeas petitioner generally has burden of proving allegations by preponderance of evidence). Based on the record before us, we find that petitioner did not raise any claims regarding his sister-in-law in the habeas petition included in the appendix record. As such, we find no merit to petitioner’s argument that the circuit court erred in denying his habeas petition on those grounds, which were not properly presented below.

herein and direct the Clerk to attach a copy of the circuit court’s February 2, 2016, “Order Denying Petition for Writ of Habeas Ad Subjiciendum and Motion for Reconsideration of Sentence” to this memorandum decision.3

For the foregoing reasons, we affirm the circuit court’s February 2, 2016, order denying petitioner’s petition for a writ of habeas corpus.

Affirmed. ISSUED: September 5, 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

3 Petitioner raises no grounds on appeal regarding the denial of his “motion for reconsideration of sentence.”