Raymond Elswick, by counsel D. Kyle Moore, appeals the
Circuit Court of Roane County's December 27, 2016, order
denying his petition for writ of habeas corpus. Respondent
Michael Martin, Acting Warden, by counsel Sarah B. Massey,
filed a response and supplemental appendix. On appeal,
petitioner argues that the circuit court erred in denying his
motions for production of transcripts, discovery, and leave
of court to conduct discovery.
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.
of 2008, petitioner was convicted of voluntary manslaughter
and conspiracy. He was subsequently sentenced to a term of
life in the state penitentiary due to two prior felony
convictions. Petitioner filed a direct appeal, and this Court
affirmed petitioner's convictions and sentence. See
State v. Elswick, 225 W.Va. 285, 693 S.E.2d 38 (2010).
In 2011, petitioner filed his first petition for writ of
habeas corpus. Petitioner was denied habeas corpus relief,
and we affirmed the denial in 2014. See Elswick v.
Plumley, No. 13-1110, 2014 WL 5328650 (W.Va. Oct. 20,
pro se, filed a second petition for writ of habeas corpus on
March 26, 2015. Subsequent to this filing, petitioner filed a
"Motion for Production of Transcripts" requesting
transcripts from certain proceedings in his underlying cases.
Because petitioner failed to obtain leave of court to conduct
discovery, petitioner's motion was denied on May 18,
counsel was appointed to represent petitioner. On June 12,
2015, petitioner filed a "Motion for Leave of Court to
Conduct Discovery" and a "Motion for
Discovery." In petitioner's motion for leave, he
asserted only that "[d]iscovery in this case is
essential to enable the [p]etitioner, and counsel, a fair and
equitable chance to prepare any amendments to
[p]etitioner's pro se [p]etition for [h]abeas
[c]orpus" and "[d]iscovery in this case is
essential for the [p]etitioner to accumulate admissible
evidence for any evidentiary hearing in this matter[.]"
Petitioner's "Motion for Discovery" was also
conclusory in nature. The motion requested certain
transcripts and stated that "these transcripts will, at
the very least, lead to admissible evidence at any
evidentiary hearing on [p]etitioner's [p]etition for
[h]abeas [c]orpus." On July 15, 2015, the circuit court
advised the parties that these motions would be taken under
record does not contain a subsequent order addressing these
motions, but the parties appeared for an omnibus evidentiary
hearing on August 26, 2016. By "Judgment Order'
entered on December 27, 2016, the circuit court denied
petitioner's second petition for writ of habeas corpus.
It is from this order that petitioner appeals.
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).
argues that the circuit court erred in denying his motions
for production of transcripts, discovery, and leave of court
to conduct discovery. Petitioner argues that, had the circuit
court granted his motions, "he would have been able to
more adequately develop his testimony and evidence to present
at the omnibus evidentiary hearing" and "may have
been able to demonstrate to the [c]ourt that he was entitled
to the relief he sought" in his second petition for writ
of habeas corpus. Petitioner concludes that, by failing to
grant these motions, he was denied "the necessary
facilities and procedures for an adequate inquiry into his
[p]etition and the allegations therein."
relevant part, Rule 7 of the Rules Governing Post-Conviction
Habeas Corpus Proceedings in West Virginia provides that
"a prisoner may invoke the processes of discovery
available under the West Virginia Rules of Civil Procedure
if, and to the extent that, the court in the exercise of its
discretion, and for good cause shown, grants leave to do
so." "[U]nlike an ordinary civil litigant, a habeas
petitioner 'is not entitled to discovery as a matter of
ordinary course.'" State ex rel. Parsons v.
Zakaib, 207 W.Va. 385, 390, 532 S.E.2d 654, 659 (2000)
(citation omitted). Rather, "discovery is available only
where a court in the exercise of its discretion determines
that such process would assist in resolving a factual dispute
that, if resolved in the petitioner's favor, would
entitle him or her to relief." Id. at 386, 532
S.E.2d at 655, Syl. Pt. 3.
no error in the circuit court's denial of
petitioner's motion for production of transcripts.
Petitioner had not obtained leave of court to conduct
discovery; therefore, he was not entitled to the requested
similarly find no error in the circuit court's failure to
grant petitioner's motion for leave to conduct discovery
and motion for discovery. Petitioner is not entitled to
discovery as a matter of course, and he failed to establish
good cause for leave to conduct discovery. Petitioner's
motion for leave summarily concludes that discovery is
necessary, but he fails to outline any particular factual
dispute, how the requested evidence would assist in resolving
such dispute, or how resolution in petitioner's favor
would entitle him to relief. Petitioner's brief to this
Court similarly lacks any meaningful analysis.
Petitioner's assertion that, had the circuit ...