Bennett v. Ames, No. 19-1152

CourtSupreme Court of West Virginia
Writing for the CourtChief Justice Evan H. Jenkins Justice Elizabeth D. Walker Justice Tim Armstead Justice John A. Hutchison
Decision Date16 March 2021
PartiesRichard Scott Bennett, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent
Docket NumberNo. 19-1152

Richard Scott Bennett, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 19-1152

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 16, 2021


(Monroe County 19-C-27)

MEMORANDUM DECISION

Self-represented petitioner Richard Scott Bennett appeals the December 3, 2019, order of the Circuit Court of Monroe County dismissing his second petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Holly M. Flanigan, filed a response in support of the circuit court's order. Petitioner filed a reply.

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 2008, petitioner was indicted in the Circuit Court of Monroe County for the murder of the woman with whom he was living. The victim's minor children resided with petitioner and the victim. The victim's two oldest children testified at petitioner's trial that petitioner either pushed or kicked the victim down the steps of the trailer in which they lived. The oldest child further testified that the victim fell through the bannister, causing the victim's head to hit on a "pointy-edge hooked to the bed frame," which gouged into the victim's face around her eye area. Petitioner asserted at trial that the victim's injuries resulted from an accidental fall.1 Following his trial, a

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jury found petitioner guilty of first-degree murder and did not make a recommendation of mercy. Accordingly, the circuit court sentenced petitioner to a life term of incarceration without the possibility of parole. Petitioner appealed his first-degree murder conviction to this Court, which refused his appeal by order entered on September 22, 2010.

On May 12, 2011, petitioner filed a petition for a writ of habeas corpus. The circuit court appointed habeas counsel who filed an amended petition and a Losh checklist.2 Petitioner raised numerous grounds for relief, including erroneous jury instructions, prejudicial pretrial publicity, erroneous denial of a change of venue motion, and ineffective assistance of trial counsel. Following two evidentiary hearings, the circuit court entered an order on May 5, 2016, denying the amended habeas petition. Petitioner appealed the circuit court's May 5, 2016, order in Bennett v. Ballard ("Bennett I"), No. 16-0535, 2017 WL 3821805 (W. Va. September 1, 2017) (memorandum decision), and this Court affirmed the denial of habeas relief.3

On August 7, 2019, petitioner filed his second habeas petition in the circuit court, reasserting erroneous jury instructions, prejudicial pretrial publicity, erroneous denial of a change of venue motion, and ineffective assistance of trial counsel. With regard to the ineffective assistance claim, petitioner asserted that the United States Supreme Court's decision in McCoy v. Louisiana, 138 S.Ct. 1500 (2018), represented a change in the law favorable to him. By order entered on December 3, 2019, the circuit court dismissed the instant petition, finding that the claims raised therein were adjudicated in Bennett I.

Petitioner now appeals the circuit court's December 3, 2019, order dismissing his second habeas petition. This Court reviews a circuit court order dismissing a habeas petition under the following standards:

"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).

. . . .
"'A court having jurisdiction over habeas corpus proceedings may deny a

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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.' Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973)." Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).

Syl. Pts. 1 & 3, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). However, because we have before us the denial of petitioner's second habeas petition, we first consider the application of Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981): "A prior omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known; however, an applicant may still petition the court on the following grounds: . . . a change in the law, favorable to the applicant, which may be applied...

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