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
Rodger M. v. David Ballard, Warden
Combined Opinion