1 

### S TATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

J ohn S. , Petitioner Below, Petitioner

vs ) No. 19-0537 ( Fayette County 19-C-4)

D onnie Ames , Superintendent , Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner John S.

, 1 self

- represented litigant, appeals the May 29, 201 9 , order of the Circuit Court of Fayette Co unty denying his third petition for a writ of habeas corpus

. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Andrea Nease Proper, filed a response in support of the circuit court’s order.

T he Court has considered the p arties’ 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 presente d, 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.

I n June of 2010, petitioner resided with his future wife, 2 his ten

- year

- old son from a previous relationship, and his wife ’ s nine

- year

- old niece, N.L., over whom his wife had

1 Co nsistent 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 Petitioner and his wife married in November of 2010. 

### FILED June 25, 2020

EDYTHE NASH GAISER , CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2 guardianship. Petitioner was accused of sexually molesting N.L.

, and the molestation by petitione r began within weeks of him moving into his future wife ’ s home.

On January 9, 2013, petitioner was indicted in the Circuit Court of Fayette County on nine counts of first

- degree sexual assault pursuant to West Virginia Code § 61

- 8B

- 3

, based on acts occurring from June of 2010 through February of 2011; and nine counts of sexual abuse by a parent, guardian, custodian or person in a position of trust pursuant to West Virginia Code § 61

- 8D

- 5. Following a jury trial in May of 2013, petition er was found guilty on all counts. The circuit

court subsequently denied petitioner ’ s post

- trial motions and sentenced him to an aggregate term of ninety

- five to 340 years of incarceration.

Petitioner appealed his convictions, which this Court affirmed i n State v. John S. (“ John S.
I

”) , No. 13

- 0780, 2014 WL 2682873 (W. Va. June 13, 2014) (memorandum decision). In his criminal appeal, petitioner raised the following assignments of error: (1) petitioner ’ s convictions were supported by insufficient evidence; (2) the child victim ’ s testimony was not credible; (3) the West Virginia Rules of Evidence were violated by the circuit court admitting hearsay evidence, including the child victim ’ s letter to her guardian and her written interview a nswers; and (4) petitioner ’ s trial was unfair because the circuit court failed to disqualify a juror, who was his ex

wife ’ s cousin. Id. at *2

- 5.

On July 15, 2014, p etitioner filed a petition for a writ of habeas corpus in the circuit court

. R elevant here , petitioner alleged that his trial counsel provided ineffective assistance by failing to retain an expert medical witness for the defense and that his aggregate sentence was unconstitutionally disproportionate to his offenses. 3 By order entered on Novemb er 12, 2014, the circuit court found that petitioner’s claim of ineffective assistance of trial counsel was factually inaccurate because trial counsel retained an expert medical witness, Dr. Guertin, whose deposition testimony was presented to the jury via video and used by counsel “ to impeach and discredit the State ’ s expert .” The circuit court further found that petitioner’s aggregate sentence of ninety

- five

to 340 years of incarceration was “ in no form or fashion

, violative of any statutory or constituti onal law ,” given the fact that through a combination of concurrent and consecutive sentences, the c ourt

“ impose [d] a less severe sentence than the maximum permitted by law .” Petitioner appealed the November 12, 2014, order, which this Court affirmed in John S. v. Ballard (“ John S. II ”) , No. 14

- 1184, 2015 WL 5331822 (W. Va. September 11, 2015) (memorandum decision), adopting “ the circuit court ’ s well

- reasoned findings and conc lusions .” Id. at *3 (Footnote omitted)

.
On January 7, 2019, petitioner filed a third habeas petition, 4 alleging that trial counsel was ineffective by failing to call the defense expert witness (who resided in Michigan) at trial or

3 The other grounds for habeas relief raised in the July 15, 2014, habeas petition were: (1) double jeopardy; ( 2 ) insufficient evidence; ( 3 ) erroneous admission of hearsay evidence; ( 4 ) improper comments by prosecutor; ( 5 ) cumulative error; and ( 6 ) actual innocence

.

4 Petitioner filed a second habeas petition on November 24, 2015, which was denied by the circuit court in an order entered on December 1, 2015. Petitioner appealed the December 1, 2015, ( c ontinued . . .)3 introduce the expert’ s “opinion letter” into evidence . Petitioner further alleged that his aggregate sentence was unconstitutionally disproportionate to his offenses. By order entered on May 29, 2019

, the circuit court denied the petition as without merit.

Petitioner appeals the circuit court’s May 29

, 2019, order. This Court review s a circuit court order denying a petition for a writ of habeas corpus under the following standard :

“In reviewing challenges to the findings and conclusions of the circuit cour t 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 a re 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)

. Furthermore,

“ ‘ [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 for the petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court’s satisfaction that the petitioner is

en titled 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. Pt. 3, id. at 412, 787 S.E.2d at 86 5

.
On appeal, petitioner argues that this Court should reverse the circuit court’s order and remand this case for further proceedings. Respondent counters that the circuit court properly denied the petition. We agree with respondent.

Here, the circuit court found the claims raised in the instant petition were the same claims raised by petitioner in the habeas petition in John S. II , and, thus, could be denied based on the findings set forth in the November 12, 2014, order denying petitioner’s first habeas petition ado pted by this Court in John S. II

. See 2015 WL 5331822 , at *3. Accordingly, b ased on our review of the record, and for the reasons noted by the circuit court in its May 29, 2019, order denying petitioner’s instant petition, we find no abuse of discretion an d no error

.

Ha ving reviewed the circuit court’s May 29, 2019, “Order Denying Petition For Writ Of Habeas Corpus, ” we hereby adopt and incorporate the circuit court’s well

- reasoned findings and conclusions, which we find address petitioner’s assignments of error. The Clerk is directed to

order, which was affirmed by this Court in John S. v. Terry (“ John S. III ”), No. 15

- 1225

, 2018 WL 1040354 (W. Va. F ebruary 23, 2018 ) (memorandum decision).4 attach a copy of the May 29, 2019, order to this memorandum decision. 5 Accordin gly, we conclude that the circuit court ’s denial of the instant petition did not constitute an abuse of discretion

.
For the foregoing reasons, we affirm the circuit court’s May 29, 2019, order denying petitioner’s third petition for a writ of ha beas corpus.

Affirm ed

.

ISSUED : June 25, 2020

CONCURRED IN BY :

Chief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison

5 Petitioner’s middle initial and full last name have been redacted. See fn.1.