Roy Wisotzkey, appearing pro se, appeals the August 15, 2017,
order of the Circuit Court of Berkeley County denying his
petition for writ of habeas corpus. Respondent Ralph Terry,
Acting Warden, Mt. Olive Correctional Center, by counsel
Shannon Frederick Kiser, filed a summary response in support
of the circuit court's order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in
denying habeas relief.
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.
a jury trial in August of 2013, petitioner was convicted of
felony murder, first-degree robbery, conspiracy, and
burglary. Petitioner was sentenced to life imprisonment, with
parole eligibility for felony murder; fifty years of
incarceration for first-degree robbery; not less than one nor
more than five years for conspiracy; and not less than one
nor more than fifteen years for burglary. The felony murder
and robbery sentences were ordered to run consecutively to
each other and concurrently to the sentences for conspiracy
and burglary. Petitioner appealed his conviction and this
Court affirmed the trial court's rulings. See State
v. Wisotzkey, No. 13-1240, 2014 WL 6607462 (W.Va. Nov.
21, 2014)(memorandum decision).
of 2016, petitioner filed a pro se petition for writ of
habeas corpus. The circuit court appointed habeas counsel and
permitted counsel to file an amended petition. Counsel filed
the amended petition and a Losh list alleging
thirteen assignments of error. Thereafter, the circuit court
summarily dismissed the amended petition. Petitioner did not
appeal that decision.
of 2017, petitioner filed a second petition for writ of
habeas corpus alleging ineffective assistance of habeas
counsel. The circuit court found that the record was
adequately detailed to proceed without a hearing on the
petition. Ultimately, the circuit court found that petitioner
was not entitled to relief and denied the petition without
further proceedings by its August 15, 2017 order. Petitioner
appeals from that order.
apply the following standard of review in habeas appeals:
"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, 633 S.E.2d 771 (2006).
Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787
S.E.2d 864 (2016).
appeal, petitioner argues that the circuit court erred by
denying his second petition for writ of habeas corpus based
on the alleged ineffective assistance of petitioner's
first habeas counsel. Petitioner asserts that the circuit
court erred in (1) concluding that habeas counsel was
adequately prepared for the first habeas proceeding; (2)
concluding that petitioner offered no evidence establishing
how habeas counsel's performance was deficient; and (3)
increasing the burden of proof by requiring petitioner to
show what evidence would have been discovered, but for
petitioner's ineffective counsel. Respondent argues that
petitioner fails to prove that his habeas counsel rendered
ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), and that the appeal should be denied. We agree with
review ineffective assistance of counsel claims as follows:
In the West Virginia courts, claims of ineffective assistance
of counsel are to be governed by the two-pronged test
established in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's
performance was deficient under an objective standard of
reasonableness; and (2) there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceedings would have been different.
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d
114 (1995). Furthermore,
[i]n reviewing counsel's performance, courts must apply
an objective standard and determine whether, in light of all
the circumstances, the identified acts or omissions were
outside the broad range of professionally competent
assistance while at the same time refraining from engaging in
hindsight or second-guessing of trial counsel's strategic
decisions. Thus, a reviewing court asks whether a ...