1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jessie D.

, Petitioner Below

, Petitioner

vs ) No. 1 7

- 0 582 ( Mingo County 1 6

- C

- 174 )

Donnie Ames, Superintendent, Mt. Olive Correctional Complex

, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Jessie D.

, 1 pro se
, appeals the May 22 , 2017 , order of the Circuit Court of Mingo County d eny ing his petition for a writ of habeas corpus

. Respondent Donnie Ames, Superintendent , Mt. Olive Correctional Complex, 2 by counsel Julianne Wisman , file d a response in suppo rt 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 substant ial 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.

On February 28, 1995, a Mingo County jury found petitioner guilty of four counts of

1 Consistent with our long

- standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L. , 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.

Edward Charles L. , 183 W. Va. 641, 398 S.E.2d 123 (1990).

2 Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional Complex h as changed and the superintendent is now Donnie Ames . The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate

Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”

are n ow designated “superintendents”. See W.Va. Code § 15A

- 5

- 3. 

### FILED
May 3, 2019

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

first

- degree sexual a ssault and four counts of sexual abuse by a parent, guardian, or custodian. The

circui t court subsequently sentenced P etitioner to an aggregate term of thirty

- five to eighty

- five years of incarceration.

Prior to the instant habeas corpus proceeding, p etitioner filed six p revious habeas petitions.

P etitioner had an omnibus hearing on February 8, 1999, in connection with his first habeas proceeding. Peti tioner’s habeas attorney submitted a Losh checklist indicat ing each and every ground that P etitioner felt might entitle him to relief. 3 The circuit court inquired on the record

whether hab eas counsel had discussed with p etitioner all grounds that might app ly to his case and had advised p etitioner that any grounds not raised would be deemed voluntarily and intentionally waived. Petitioner’s habeas attorney informed the circuit court that he had discussed with his client every potential ground for relief and had explained the conclusive effect of a final decision on

successive habeas petitions

. Petitioner signed the Losh checklist submitted by his attorney and initialed all the grounds he wished to assert. The circuit court accepted the checklist, admitted it

into the reco rd, and accordingly found that P etitioner had knowingly and intelligently waived all grounds for relief not asserted.

On March 19, 1999, the circuit court entered a final order denying all grounds for relief with the excepti on of the ground alleging that p etitioner had been sentenced under the wrong version of West Virginia Code § 61

- 8B

- 3

, regarding two of his first

- degree sexual assault convictions. The circuit court granted relief on that ground and resentenced p etitioner un der the

version of West Virginia Code § 61

- 8B

- 3 in effect at t he time of the commission of those offenses

.

Subsequently, in p etitioner’s sixth habeas proceeding

, the circuit court held an evidentiary hearing o n April 4 and 25, 2011, (“2011 hearing”) given p etitioner’ s claim that his prior habeas attorney provided in effective assistance. However, p etitioner’s attorney at the 2011 hearing (“2011 counsel”) explained that P etitioner’s ineffective assistance claim was ultimately based on trial counsel’s performance in the underlying criminal case because his “ [prior] habeas counsel failed to recognize ” certain errors of P etitioner’s trial attorney. Acc ordingly, the circuit court

determined that P et itioner was precluded from re

- raising that claim , finding :

So, based upon all those matters, every opportunity has been given in the past to fully litigate all those issues and they, in fact, have been litigated. The omnibus proceeding has already been held. Therefore, we are holding this proceeding as a subsequen t habeas proceeding and the Court finds that all the issues that are set forth in the transcript with regard to actions by trial counsel, actions by the trial court, actions by the prosecuting attorney, by the jury, and by the spectators all were fully lit igated or and raised and decided and appealed or they could have been

3 In Losh v. McKenzie , 166 W. Va. 762, 768

- 70, 277 S.E.2d 606, 611

- 12 (1981), we compiled a non exclusive list of potential grounds that a circuit court should address with a habeas petitioner as to whether each ground was being either waived or raised in the proceeding.3

with reasonable diligence because they were set forth in the transcript and all those issues were raised, litigated [,] and decided.

The 2011 hearing continued on the issue of newly dis covered evidence , which may be raised in a successive habeas petition

. 4 Petitioner intended to call Kyle S. to testify regarding

comments that p etitioner’s son had alleged ly made to Kyle S. that tended to support p etitioner’s

claim of innocence. The comments, if true, would represent a change from p etitioner’s son’s testimony at trial. Respondent objected on the ground of hearsay. Petitioner’s 2011 counsel argued

that Kyle S. ’s testimony should be allowed because the comments that p etitioner’s son had made

to him co nstituted statements against p etitioner’s son’s interest given that it contradicted

P etitioner’s son’s testimony at trial

. 5 The circuit court su stained r espondent ’s hearsay objection.

P etitioner presented the testimony of his stepdaughter

, who was the victim in the underlying criminal case, 6 and his former wife. Both witnesses stood by their trial testimony. When questioned by p etitioner’s 2011 counsel, his stepdaughter testified as follows:

Q. So[,] if someone else said that you and your mother would laugh an d joke about what happened to [P etitioner]

—

A.

— That’s nothing to laugh about

— the molestation of a child.

Q. So, that wouldn’t be true?

A. No.

Q. And[,] you’ve never joked about putting an innocent man in jail?

4 In syllabus point four of Losh v. McKenzie , 166 W. Va. 762, 277 S.E.2d 606 (1981), we held:

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: ineffective assistance of counsel at the omnibus habeas corpus hear ing; newly discovered evidence ; or, a change in the law, favorable to the applicant, which may be applied retroactively.

( Some e mphasis added.).

5 Petitioner’s son would have been a child when he testified at his father’s trial.

6 As reflected in the testimony of petitioner’s stepdaughter, p etitioner’s sexual abuse of his stepdaughter occurred from the time she was five years old until the time she was eight years old. Petitioner’s stepdaughter was eight years old when she originally testified at trial

.4

A Never[.]

. . . .

Q. So[,] you understand that this is your last chance that if any of that was untrue that this is our last chance to get thru that?

A

. I will never change my statement. It happened, and I’ll take a lie detector test. A five year old does not get Chlamyd ia at five if something did not happen to her.

The victim’s mother responded to p etitioner ’s 2011 counsel’s questions as follows:

Q

. If someone else were to say that you and [ the victim] would laugh and joke about putting an innocent man in jail, is that true?

A

. No, it isn’t.

Q

. Do you know why someone would say something like that?

A

. I have no idea.

Q

. You understand that this is the last opportunity if anything was said at trial that isn’t true to correct that? Do you feel that anything was sa id at trial that isn’t true?

A

. No.

Q

. So you stand by your testimony then and today?

A

. Yes.

In its May 5, 2011

, order denying p etitioner’s sixth habeas petition, the circuit court found that “[t]he witnesses both testified that their trial testimony was truthful, and testified that their testimony did not need changed or updated.” Petitioner appealed the denial of habeas relief, but

this Court affirmed the circuit court’s May 5, 2011

, order in [ Jessie D. ] v. Ballard

, No. 11

- 1062

, 2012 WL 6097616 (W. Va. Dec. 7, 2012 ) (memorandum decision). 7

On September 23, 2016, p etiti oner filed a habeas petition alleging that his 2011 counsel provided ineffective assistance in his sixth habeas proceeding . By order entered May 22, 2017, the

circuit court denied habeas relief, finding that:

. . . Petitioner asserts ineffective assistance of counsel as grounds for relief. However, in support of his argument, [p]etitioner merely reasserts all the grounds

7 We take judicial notice of the record in Jessie D.5

in his prior habeas corpus proceedings, adding an additional ground of ineffective

assistance of counsel in the . . . habeas proceedings[,] and the allegations of ineffective [assistance] of counsel appears to this court to be a pretext to re

- litigate issues previously fully litigated[.]

Petitioner now appeals the circuit court’s May 22, 2017, order denying habeas relief. We 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). In West Virginia, claims of ineffective assistance of counsel are governed by the two

- pronged test established in Strickland v. Washington , 466 U.S. 668 (1984), which requires the following: (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. See Syl. Pt. 5, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995) (adopting

Strickland ).

On appeal

, p etitioner argues that his 2011 counsel failed to investigate and raise other

claims in additi on to the newly discovered evidence claim in his sixth habeas proceeding. Based on our review of the record, we concur with the circuit court’s finding at the April of 2011 hearing

that “ all the issues that are set forth in the transcript with regard to ac tions by trial counsel, actions by the trial court, actions by the prosecuting attorney, by the jury, and by the spectators all were fully litigated ” in prior proceedings. As we held in syllabus point two of Losh v. McKenzie , 166 W. Va. 762, 277 S.E.2d 606 (1981), “[a] judgment denying relief in post

- conviction habeas corpus is res judicata on questions of fact or law which have been fully and finally litigated and decided, and as to issues which with reasonable diligence should have been known but were not raised [

. ] ” (Some e mphasis added.). I n his first habeas proceeding, p etitioner signed the Losh checklist submitted by his original habeas attorney to indicate each and every ground that p etitioner felt might entitle him to relief aft er being advised that any grounds not raised would be deemed voluntarily and intentionally waived. Therefore, we agree with the circuit court’s finding that any ground not raised at that time was waived.

With regard to p etitioner’s newly discovere d evidence claim, we find that p etitioner’s 2011 counsel presented both argument and testimony in support of that claim in the sixth habeas proceeding. Based on our review of the record, we find that the denial of the newly discovered

evidence claim was no t because p etitioner’s 2011 counsel performed poorly , but because the claim

lacked merit as both the victim and the victim’s mother stood by their trial testimony . We further note petitioner’s argument that the circuit court failed to make detailed finding s with regard to his 2011 counsel’s perfo rmance. However, we agree with r espondent’s position that the circuit court’s6

finding in its May 22, 2017, order , ade quately stated the reason that p etitioner’s sixth habeas petition lacked merit: that petitioner wa s using the claim that his 2011 counsel provided ineffective assistance as “a pretext to re

- litigate issues previously fully litigated[.]” Therefore, we conclude that the circuit court did not abuse its discretion in denying habeas relief.

For th e foregoing reasons, we affirm the circuit court’s May 22, 2017, order, denying

p etitioner’s petition for a writ of habeas corpus

.

Affirmed

.

ISSUED : May 3 , 2019

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison