Pocahontas County 17-C-18
Joseph Eugene Howard, pro se, appeals the November 14, 2017,
order of the Circuit Court of Pocahontas County dismissing
without prejudice petitioner's petition for a writ of
habeas corpus. Respondent Donnie Ames, Superintendent, Mt.
Olive Correctional Complex,  by counsel Scott E. Johnson,
filed a summary response.
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 orders is appropriate under
Rule 21 of the Rules of Appellate Procedure.
was convicted by a jury of burglary and grand larceny.
Following the filing of a recidivist information, a separate
jury convicted petitioner of being a habitual criminal
pursuant to West Virginia Code §
61-11-18(c). The circuit court sentenced petitioner to
one to fifteen years of incarceration for his burglary
conviction and to one to ten years of incarceration for his
conviction for grand larceny. For petitioner's recidivist
conviction, the circuit court sentenced him to a life term of
incarceration. Petitioner sought review of his burglary and
grand larceny convictions in Case No. 041681, but this Court
refused his appeal on January 20, 2005. Petitioner sought
review of his recidivist conviction in Case No. 041682, but
this Court refused that appeal on January 20, 2005.
omnibus habeas corpus proceeding occurred in 2008. At the
January 3, 2008, evidentiary hearing, petitioner
"knowingly and intelligently waived his right to
counsel[.]" Thereafter, petitioner was advised regarding
"his obligation to raise all grounds for
post[-]conviction relief in one proceeding" and that
subsequent habeas petitions would be viewed with disfavor. By
order entered February 6, 2008, the circuit court denied
habeas relief. Petitioner sought review of the circuit
court's denial of relief in Case No. 080938, but this
Court refused that appeal on June 17, 2008.
28, 2017, petitioner filed a habeas petition, alleging that
he was actually innocent based on newly discovered evidence.
Petitioner stated that:
[He] [o]verheard prison staff state that [West Virginia]
State Police Officer Tim McDaniels admitted that he and
others coached Argile C. Arbogast, the alleged victim in the
petitioner's case, to lie and say that the petitioner
broke into the alleged victim's house and stole items
that he did not steal.
The petitioner did not break into the Argile C. Arbogast
residence and he did not commit the offense of [g]rand
filing his petition, petitioner served requests for
admissions on Trooper McDaniels and respondent pursuant to
Rule 36 of the West Virginia Rules of Civil Procedure.
Petitioner asked that Trooper McDaniels and respondent admit
that the allegations set forth in his petition were true.
However, neither Trooper McDaniels nor respondent answered
the requests for admissions.
addressing petitioner's attempts to conduct discovery
under the Rules of Civil Procedure, the circuit court
dismissed his habeas petition. The circuit court recognized
that, pursuant to syllabus point four of Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), a habeas
petitioner may raise newly discovered evidence in a
successive petition. The circuit court found that petitioner
failed to provide adequate factual support for his
allegations. The circuit court designated its dismissal as
without prejudice pursuant to Rule 4(c) of the West Virginia
Rules Governing Habeas Corpus Proceedings ("Habeas
Rules"), stating that petitioner "may refile the
[p]etition with adequate factual support."
now appeals the circuit court's November 14, 2017, order
dismissing his habeas petition without prejudice. Habeas Rule
4(c) provides, in pertinent part, that: "If the petition
contains a mere recitation of grounds without adequate
factual support, the court may enter an order dismissing the
petition, without prejudice, with directions that the
petition be refiled containing adequate factual support. The
court shall cause the petitioner to be notified of any
summary dismissal." We review the circuit court's
dismissal pursuant to the standard of review applicable to
"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, of Anstey v. Ballard, 237 W.Va. 411, 787
S.E.2d 864 (2016).
appeal, petitioner argues that respondent's and Trooper
McDaniels' failure to respond to his discovery requests
should be deemed "conclusive evidence" of his
innocence. Respondent counters that there was no need to
answer petitioner's requests for admissions because a
habeas petitioner may not conduct discovery without leave of
court. We agree with respondent. Habeas Rule 7(a) provides
that "[i]n post-conviction habeas corpus proceedings, a
prisoner may invoke the processes of discovery available
under the . . . . Rules of Civil Procedure if, and to the
extent that, the court in the exercise of its discretion, and
for good ...