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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Hartzell Ray Foster, 

Petitioner Below, Petitioner

vs.) No. 21-0264 (Barbour County 20-C-8)

Donnie Ames, Superintendent, Mt. Olive

Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Self-represented petitioner Hartzell Ray Foster appeals the March 19, 2021, order of the 

Circuit Court of Barbour County denying his sixth petition for a writ of habeas corpus. Respondent

Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick Morrisey and

Andrea Nease Proper, 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.

On August 28, 1978, petitioner killed a woman in connection with “a cocaine deal that had 

gone sour.” State v. Foster (“Foster I”), 171 W. Va. 479, 480, 300 S.E.2d 291, 292 (1983). 

Petitioner asserted that he acted in self-defense, and, on appeal in Foster I, we found that the circuit 

court’s circumscription of the defense’s impeachment of the State’s star witness denied petitioner 

a fair trial. Id. at 480, 300 S.E.2d at 292. Accordingly, we reversed petitioner’s first-degree murder 

conviction and remanded the case for a new trial. Id. at 483, 300 S.E.2d at 295. Upon retrial, 

petitioner was again convicted of first-degree murder and was sentenced to a life term of 

incarceration without the possibility of parole. Following petitioner’s second conviction and 

sentencing, this Court refused his appeal by order entered on May 14, 1985.

FILED

February 1, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Subsequently, petitioner filed five separate petitions for a writ of habeas corpus in the 

Circuit Court of Barbour County prior to the filing of his instant petition. In Foster v. Ballard

(“Foster II”), No. 16-1000, 2017 WL 4570571 (W. Va. Oct. 13, 2017) (memorandum decision), 

this Court affirmed the circuit court’s denial of the fifth petition, finding that “[t]he record is replete 

with findings from all of petitioner’s habeas proceedings that are sufficient to explain why his 

grounds for relief are without merit.” Id. at *4. As noted in Foster II, in petitioner’s previous habeas 

proceedings, he alleged that, after this Court’s remand of the case in Foster I, trial counsel was 

ineffective in not accepting a purported offer by the State to allow petitioner to plead guilty to 

second-degree murder. Id. at *1-3. To support his claim, petitioner submitted an affidavit in which 

trial counsel affirmed that petitioner advised him that he would plead guilty to second-degree 

murder if such an offer was the best offer petitioner could obtain. While trial counsel’s affidavit 

was unsigned and non-notarized, the circuit court considered petitioner’s claim, finding that 

petitioner’s desire for “the best plea bargain that could be obtained” prevented the parties from 

reaching a plea agreement. The circuit court found either that there was never a “valid plea offer” 

(due to a lack of agreement as to whether second-degree murder was the best offer petitioner could 

obtain) or that, even if the State made such an offer, trial counsel had no authority to accept it 

“without first conferring with [petitioner]” prior to the State’s withdrawal of the offer. Id.

On March 19, 2021, petitioner filed the instant habeas petition in the circuit court. In the 

instant petition, petitioner alleged that, while he submitted trial counsel’s affidavit with his first 

petition in 1990, trial counsel finally provided a signed and notarized copy of the affidavit on 

November 28, 2017, approximately a month and a half following our decision in Foster II.

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Petitioner argued that the signed and notarized copy of the affidavit constituted newly-discovered 

evidence that trial counsel was ineffective in not accepting the State’s purported offer. In rejecting 

petitioner’s argument, the circuit court found that, notwithstanding the fact that an unsigned and 

non-notarized copy of trial counsel’s affidavit was previously submitted, petitioner’s ineffective 

assistance claim was “finally adjudicated” in his prior habeas proceedings. Accordingly, the circuit 

court denied petitioner’s instant habeas petition. 

 

Petitioner now appeals the circuit court’s March 19, 2021, order denying his instant habeas 

petition. This Court reviews a circuit court’s order denying 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).

1 In petitioner’s instant habeas petition, he asserted—in a single sentence—that, with 

appointment of habeas counsel, he could discover “other grounds for relief.” In Losh v. McKenzie, 

166 W. Va. 762, 277 S.E.2d 606 (1981), this Court found that the assertion of grounds for relief 

“without detailed factual support does not justify the issuance of a writ, the appointment of counsel, 

and the holding of a hearing.” Id. at 771, 277 S.E.2d at 612. Therefore, we find that the circuit 

court properly declined to address unspecified grounds due to a lack of detailed factual allegations.
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. . . .

“‘A court having jurisdiction over habeas corpus proceedings may deny a 

petition for a writ of habeas corpus without a hearing and without appointing 

counsel 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 and 3, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). 

Because we have before us the denial of petitioner’s sixth 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: ineffective assistance of counsel at the omnibus habeas corpus hearing; 

newly discovered evidence; or, a change in the law, favorable to the applicant, 

which may be applied retroactively.

On appeal, petitioner argues that the instant petition is permitted pursuant to the first Losh

exception. Petitioner acknowledges that our finding in Foster II provides that

[c]ontrary to petitioner’s contention, the circuit court found that petitioner’s habeas 

[counsel] “specifically requested an evidentiary hearing to more fully develop the 

facts,” but that the decision to hold a hearing was the court’s to make and the court 

determined that it was satisfied that petitioner was entitled to no relief. The circuit 

court’s finding in [petitioner’s third habeas proceeding] is supported by earlier 

findings made in [the second habeas proceeding]. In the [second habeas]

proceeding, the circuit court found that there was “no need for oral arguments or 

[an] evidentiary hearing” and noted that it had reviewed “the transcripts of all pretrial proceedings, the transcript of [petitioner’s second] trial, the transcript of the 

post-trial proceedings, and all subsequent matters filed including the 1990 [p]etition

for [h]abeas [c]orpus relief in [petitioner’s first habeas proceeding].” Accordingly, 

given the circuit court’s findings that no evidentiary hearing was necessary and that 

the record in [the second habeas proceeding] was fully developed, we find that 

petitioner’s [second] habeas proceeding . . . constituted an omnibus proceeding that 

triggers the application of the doctrine of res judicata to bar subsequent, successive 

petitions subject to the exceptions set forth in syllabus point 4 of Losh.

2017 WL 4570571, at *4.

Respondent argues that, while petitioner states that he is relying upon the first Losh

exception, he failed to raise ineffective assistance of habeas counsel in the instant petition. “This 
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Court will not pass on a nonjurisdictional question which has not been decided by the trial court 

in the first instance.” Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958). 

Based upon our review of the instant petition, we find that the Losh exception petitioner argued 

before the circuit court was newly-discovered evidence—not ineffective assistance of habeas 

counsel. Accordingly, pursuant to Syllabus Point 2 of Sands, we address only whether the second

Losh exception allowed petitioner to file the instant petition notwithstanding the doctrine of res 

judicata.2

The test for evaluating newly-discovered evidence is set forth in the Syllabus of State v. 

Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979), in which this Court held that 

“[a] new trial will not be granted on the ground of newly-discovered 

evidence unless the case comes within the following rules: (1) The evidence must 

appear to have been discovered since the trial, and, from the affidavit of the new 

witness, what such evidence will be, or its absence satisfactorily explained. (2) It 

must appear from facts stated in his affidavit that plaintiff was diligent in 

ascertaining and securing his evidence, and that the new evidence is such that due 

diligence would not have secured it before the verdict. (3) Such evidence must be 

new and material, and not merely cumulative; and cumulative evidence is 

additional evidence of the same kind to the same point. (4) The evidence must be 

such as ought to produce an opposite result at a second trial on the merits. (5) And 

the new trial will generally be refused when the sole object of the new evidence is 

to discredit or impeach a witness on the opposite side.” Syllabus Point 1, Halstead 

v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)[, overruled on other grounds, State v. 

Bragg, 140 W. Va. 585, 87 S.E.2d 689 (1955)].

Petitioner argued in the instant petition that the circuit court denied relief in his prior habeas 

proceedings because it found trial counsel’s affidavit unreliable. According to petitioner, now that 

trial counsel has finally provided a signed and notarized copy, the affidavit is reliable and would 

produce a different result than those in his previous habeas proceedings.

Petitioner’s argument is contrary to our finding in Foster II. In Foster II, we found that the 

circuit court’s previous denials of habeas relief were based upon its determination that the 

allegations in trial counsel’s affidavit, even if reliable, were insufficient to support a finding that 

trial counsel was ineffective in not accepting a purported plea offer. 2017 WL 4570571, at *1-3.

Thus, in the instant case, the now-signed and notarized affidavit did not constitute newlydiscovered evidence pursuant to Frazier because trial counsel’s affirmation—that petitioner 

advised him that he would plead guilty to second-degree murder if such an offer was the best offer 

petitioner could obtain—was consistent with the circuit court’s prior determination that 

petitioner’s desire for a more advantageous plea offer prevented the parties from reaching a plea 

agreement. Therefore, we find that the circuit court properly rejected the claim that petitioner is 

entitled to habeas relief based upon newly-discovered evidence. Accordingly, we conclude that 

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Petitioner did not raise the third Losh exception—a change in the law, favorable to the 

applicant, which may be applied retroactively—either before the circuit court or in this appeal. 
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the circuit court did not abuse its discretion in denying petitioner’s instant habeas petition.

For the foregoing reasons, we affirm the circuit court’s March 19, 2021, order denying 

petitioner’s sixth petition for a writ of habeas corpus.

Affirmed.

ISSUED: February 1, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice William R. Wooton