Jack J., by counsel John M. Jurco, appeals two orders of the
Circuit Court of Ohio County related to his petition for a
writ of habeas corpus: (1) the October 7, 2016, order
granting the motion to dismiss filed by Respondent Karen
Pszczolkowski, Warden, Northern Correctional Facility, in
response to petitioner's request for habeas relief, and
(2) the December 8, 2016, order denying his
"Notification of Remaining Claim and Request for
Evidentiary Hearing." Respondent, by counsel Gordon L.
Mowen, II, filed a response in support of the circuit
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.
January 2008, petitioner was indicted on six counts of sexual
assault in the first degree, seven counts of sexual abuse by
a custodian or parent, and conspiracy. These counts charged
petitioner with a wide variety of acts of sexual misconduct
against R.M., his girlfriend's daughter. The evidence at
trial showed that petitioner began sexually abusing R.M. when
she was three or four years old. Though petitioner's
first trial resulted in a mistrial, he was subsequently
convicted of all counts charged in the indictment as a result
of a second trial. He was sentenced to an aggregate term of
incarceration of 161 to 355 years.
appealed his convictions to this Court. This Court affirmed
his convictions. See State v. Jack[ J.], 230 W.Va.
692, 742 S.E.2d 108 (2013).
subsequently filed a pro se petition for habeas relief in the
Circuit Court of Ohio County and, after the appointment of
counsel, filed two amended petitions. Respondent filed a
motion to dismiss the petition. By order entered on October
7, 2016, the circuit court granted respondent's motion to
dismiss. Petitioner subsequently filed a "Notification
of Remaining Claim and Request for Evidentiary Hearing,
" relating to his claims of ineffective assistance of
counsel, cruel and unusual punishment, and juror bias. The
circuit court denied the same by order entered on December 8,
2016. It is from the October 7, 2016, and December 8, 2016,
orders that petitioner now appeals.
review of the circuit court's order denying
petitioner's request for habeas relief is governed by the
"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).
appeal, petitioner raises the same arguments that he
presented in the habeas proceeding before the circuit court.
As he did below, petitioner argues that the trial court erred
in denying numerous claims: (1) prejudicial pretrial
publicity; (2) denial of the right to a speedy trial; (3)
incompetency to be sentenced; (4) suppression of helpful
evidence; (5) knowing use of perjured testimony; (6)
erroneous information in pre-sentence investigation report;
(7) ineffective assistance of counsel; (8) imposition of
consecutive sentences for the same transaction, violation of
the prohibition against double jeopardy, severer sentences
than expected, and excessive sentences; (9) bail was
excessive and then wrongfully denied; (10) denial of a
preliminary hearing; (11) challenges to composition of Grand
Jury, its procedures, and nondisclosure of Grand Jury
minutes; (12) defective indictment; (13) pre-indictment
delay; (14) refusal to turn over witness notes after the
witness testified; (15) unconstitutionality of West
Virginia's rape shield law and the State v.
Quinn falsity exception as applied to
petitioner and denial of petitioner's motion for
discovery regarding these issues; (16) prejudicial statements
made by prosecutor and improper communications between
prosecutor, witnesses, and jurors; (17) insufficiency of the
evidence; (18) juror's failure to disclose the fact that
she knew petitioner; (19) denial of petitioner's motion
to interview the jury; and (20) denial of petitioner's
request for an evidentiary omnibus hearing. Each of
petitioner's claims were addressed at length in the
circuit court's orders.
no error or abuse of discretion by the circuit court. Our
review of the record supports the circuit court's
decision to grant respondent's motion to dismiss and deny
petitioner's requests for post-conviction habeas corpus
relief, including the relief sought in his "Notification
of Remaining Claim and Request for Evidentiary Hearing"
based on these alleged errors, which were also argued below.
Indeed, the circuit court's orders include well-reasoned
findings and conclusions as to the assignments of error
raised on appeal. Given our conclusion that the circuit
court's orders 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 the assignments of error raised herein and direct
the Clerk to attach a copy of the circuit court's October
7, 2016, and December 8, 2016, orders to this memorandum
foregoing reasons, we affirm.
CONCURRED IN BY: Chief Justice Margaret L. Workman Justice,
Robin Jean Davis Justice, Menis E. Ketchum Justice, Allen H.