STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State ex rel. Brandon Green, Petitioner Below, Petitioner FILED February 11, 2013 RORY L. PERRY II, CLERK vs) No. 12-0078 (Berkeley County 10-C-467) SUPREME COURT OF APPEALS OF WEST VIRGINIA

Patrick Mirandy, Warden, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Brandon Green, by counsel Christopher J. Prezioso, appeals the Circuit Court of Berkeley County’s order entered on December 16, 2011, denying his petition for writ of habeas corpus. Respondent Warden Mirandy1, by counsel Christopher Quasebarth, filed a response in support of the circuit court’s decision. Petitioner has filed a reply.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was convicted by a jury of kidnapping, grand larceny, conspiracy to commit kidnapping, conspiracy to commit grand larceny, and battery based on his involvement in a robbery and kidnapping of a female victim. Petitioner was involved in the crimes with two co­ defendants, one of whom pled guilty to first degree robbery, grand larceny, and conspiracy to commit grand larceny, while the other pled guilty to first degree robbery, conspiracy to commit kidnapping and unlawful wounding. Both testified against petitioner at trial, along with other witnesses. Petitioner filed an initial petition for writ of habeas corpus at which time he specifically waived any claim of ineffective assistance of counsel after extensive questioning on this issue by the circuit court. The petition was denied, and the appeal of this denial was refused by this Court. Petitioner then filed a second petition for writ of habeas corpus, attaching a letter from one of his co-defendants allegedly exonerating petitioner and admitting to perjury. Petitioner argued that the newly discovered evidence entitled him to a new habeas proceeding, and that his prior counsel was ineffective. The circuit court denied his petition for writ of habeas corpus and petitioner appeals this denial.

1 Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, the name of the current public officer has been substituted as a respondent in this action.

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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, petitioner first argues that the circuit court erred in failing to hold an evidentiary hearing because probable cause existed to believe that petitioner was entitled to habeas relief, and because the credibility of petitioner’s co-defendant should have been determined after a hearing. Petitioner also argues that the letter shows that he was convicted based upon perjured testimony. Finally, petitioner argues ineffective assistance of counsel based upon the prior waiver of his ineffective assistance of counsel claim.

In response, the State argues that a hearing was unnecessary and the circuit court did not err in ruling without holding a hearing. The State also argues that the circuit court properly found that the letter in question was not credible, and that the trial testimony corroborated the co­ defendant’s previous testimony. Finally, the State argues that petitioner knowingly waived his ineffective assistance of counsel claim, and makes no specific allegations of ineffective assistance that can be addressed by this Court.

This Court has previously addressed the denial of a writ of habeas corpus without a hearing, as follows:

“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 (1973).

Syl. Pt. 2, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997). In the present matter, the circuit court did not err in failing to hold an evidentiary hearing. A review of the record presented and of the circuit court’s order shows that the circuit court properly determined, without the necessity of a hearing, that petitioner was not entitled to relief.

As to the other assignments of error, our review of the record reflects no clear error or abuse of discretion by the circuit court. Having reviewed the circuit court’s “Order Denying Second Petition for Writ of Habeas Corpus” entered on December 16, 2011, 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.

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For the foregoing reasons, we affirm the circuit court’s order.

Affirmed.

ISSUED: February 11, 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

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