1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Michael Greene,

Petitioner Below, Petitioner

vs.) No. 22-0156 (Mercer County 21-C-231-WS)

Shelby Searls, Superintendent, 

Huttonsville Correctional Center,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Michael Greene appeals the order of the Circuit Court of Mercer County, entered 

on January 20, 2022, denying his second petition for a writ of habeas corpus.1 Upon our review, 

we determine that oral argument is unnecessary and that a memorandum decision affirming the 

circuit court’s order is appropriate. See W. Va. R. App. P. 21.

Petitioner was arrested on January 9, 2010, when he was sixteen years old,2 in connection 

with the murder of Clayton Mitchum. Following an initial dismissal, petitioner was recharged with 

murder as a juvenile (Mercer County Criminal Case No. 11-JD-11). At the same time, petitioner 

was charged with three counts of delivery of a controlled substance (Mercer County Criminal Case 

No. 11-JD-118). In April of 2012, petitioner entered into a plea agreement with the State, which 

was approved by the circuit court. In that agreement, petitioner consented to an adjudication of 

delinquency on the three charges of delivery of a controlled substance and placement in a facility 

to complete a youthful offender program. Petitioner further consented to the filing of an 

information, agreed to a transfer to adult jurisdiction, and entered a guilty plea to first-degree 

robbery as an accessory, stemming from Mr. Mitchum’s murder. 

The plea agreement provided that petitioner’s first-degree robbery sentence would be 

1

Petitioner is self-represented. Respondent Shelby Searls, Superintendent, Huttonsville 

Correctional Center, appears by counsel Attorney General Patrick Morrisey and Assistant 

Attorney General Lara K. Bisset.

2

Petitioner was born in September of 1993.

FILED

March 7, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

capped at twenty years of incarceration and that his sentence would be suspended in favor of 

probation in a deferred adjudication. If petitioner successfully completed the terms of his 

probation, his guilty plea to robbery would be withdrawn and the case dismissed. Pursuant to the 

plea agreement, the circuit court deferred adjudicating petitioner guilty of first-degree robbery and 

placed him on five years of probation. Four days later, the State filed a petition to revoke 

petitioner’s probation alleging that he broke curfew, associated with felons, and possessed a 

concealed weapon. Thereafter, the circuit court revoked petitioner’s probation and, pursuant to the 

plea agreement, adjudged him guilty and imposed the specified twenty-year sentence for 

first-degree robbery. In State v. Greene (“Greene I”), No. 15-0402 2016 WL 3463468 (W. Va.

June 21, 2016) (memorandum decision), this Court affirmed the circuit court’s decision to award 

petitioner a total of 317 days of credit for time served. Id. at *4.

Nevertheless, during petitioner’s first habeas corpus proceeding, initiated in 2015, he 

included a claim alleging that his trial counsel failed to file an appeal in his criminal case.

Petitioner also raised additional claims of ineffective assistance of trial counsel. Petitioner further 

alleged that the State failed to fulfill the terms of the plea agreement by transferring him to adult 

jurisdiction despite the provision in the agreement in which he consented to such a transfer. In 

Greene v. Ames (“Greene II”), No. 18-0072 2019 WL 2246623 (W. Va. May 24, 2019) 

(memorandum decision), this Court affirmed the circuit court’s denial of petitioner’s first habeas 

petition, rejecting the following assignments of error: (1) petitioner’s trial counsel failed to file an 

appeal in his criminal case; (2) the evidence failed to establish that petitioner violated the terms of 

his probation; (3) the circuit court failed to review the probation revocation hearing record; (4) the 

circuit court erred in placing petitioner on adult probation when he was still under juvenile 

jurisdiction; and (5) the circuit court erred in concluding that petitioner’s completion of a core 

curriculum did not satisfy the term of his plea agreement requiring “successful completion of a 

two-year [a]ssociate[’]s degree program or an equivalent trade-school certification.” Id. at *4.

On November 22, 2021, petitioner filed his second habeas petition, alleging that habeas 

counsel in his first habeas proceeding failed to: (1) discover all of the habeas grounds that would 

possibly justify relief; (2) argue that the State failed to fulfill the terms of the plea agreement 

because, according to petitioner, he was promised that he would remain in juvenile custody until 

he turned twenty years old; (3) adequately raise petitioner’s claim that trial counsel failed to file an 

appeal in his criminal case; and (4) raise additional claims that trial counsel provided ineffective 

assistance. The circuit court, by order entered on January 20, 2022, denied the second habeas 

petition, finding that petitioner attempted to use ineffective assistance of habeas counsel as a guise 

to relitigate issues previously waived and/or adjudicated in Green II.

Petitioner now appeals the denial of his second habeas petition. This Court reviews a 

circuit court order denying a habeas petition under the following standard:

“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. 
3

417, 633 S.E.2d 771 (2006). 

Syl. Pt. 1, 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 initially 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 habeas counsel provided ineffective assistance during his 

first habeas proceeding. Respondent counters that the circuit court properly denied petitioner’s 

second habeas petition. We agree with respondent and concur in the circuit court’s finding that 

petitioner attempted to use ineffective assistance of habeas counsel as a guise to relitigate issues 

previously waived and/or adjudicated.

The circuit court held a habeas corpus hearing during the first habeas proceeding. Greene 

II, 2019 WL 2246623, at *3. Petitioner filed a Losh checklist3 in the earlier proceeding, and, in its 

order denying the first habeas petition, the circuit court found that he “knowingly, intelligently, 

and voluntarily waived all [Losh] issues not addressed herein.” Additionally, based upon our 

review of the transcript of the March 24, 2017, habeas corpus hearing, petitioner had a fair and full 

opportunity to raise of all of the issues he wanted to raise, including those issues that petitioner 

believed relevant but were not raised by habeas counsel.4 Finally, on appeal, we affirmed the 

circuit court’s finding that petitioner violated the terms of the plea agreement because, while 

petitioner successfully completed his juvenile sentence as to the three delivery charges, “he was 

properly placed on adult probation [for first-degree robbery], and then properly sentenced to 

incarceration following the revocation of that probation.” Greene II, 2019 WL 2246623, at *5 

(footnote omitted). 

Petitioner successfully completed his juvenile sentence in May of 2013 when he was 

nineteen years old. Id. at *5 n.3. Petitioner asserts that he was promised that he would remain in 

juvenile custody until he turned twenty years old and argues that a May 25, 2012, letter from trial 

3

The checklist of grounds typically used in habeas corpus proceedings, usually referred to 

as the Losh checklist, originates from our decision in Losh, where we set forth the most common 

grounds for habeas relief. 166 W. Va. at 768-70, 277 S.E.2d at 611-12. 

4

For example, at the March 24, 2017, habeas corpus hearing, in addition to questioning by 

petitioner’s habeas counsel, the circuit court permitted petitioner to pose his own questions during 

the examination of his trial counsel.
4

counsel constitutes newly discovered evidence of that promise. We set forth the test for evaluating 

newly discovered evidence in the Syllabus of State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534

(1979):

“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)].

We have further stated that, under the Frazier test, “[a]ll five factors must be proven before a new 

trial will be awarded.” Anstey, 237 W. Va. at 422, 787 S.E.2d at 875. 

We find that petitioner cannot establish at least two of the five factors of the Frazier test. In 

the May 25, 2012, letter, trial counsel informed petitioner that, if he accepted the plea agreement, 

he “would walk out” of a juvenile facility at twenty years old. However, trial counsel made the 

same or a substantially similar statement to petitioner in an April 27, 2012, letter,5 and habeas 

counsel questioned petitioner about his understanding of trial counsel’s statement at the March 24, 

2017, habeas corpus hearing. Furthermore, we have previously found petitioner understood at the 

plea hearing that he would be placed on adult probation for first-degree robbery either when he 

completed a youthful offender program (which occurred when he was nineteen years old) or when 

he turned twenty one years old, “which[ever] occurs first.” Green II, 2019 WL 2246623, at *5. 

Thus, we find that trial counsel’s May 25, 2012, letter is cumulative evidence as it contains the 

same or a substantially similar statement as the April 27, 2012, letter and that, due to our finding in 

Green II, the existence of the May 25, 2012, letter would not produce an opposite result in 

petitioner’s second habeas proceeding and so did not constitute newly discovered evidence. 

Therefore, we find that the circuit court properly found that all of the claims set forth in the second 

habeas petition were previously waived and/or adjudicated. Accordingly, we conclude that the 

circuit court did not abuse its discretion in denying petitioner’s second petition for a writ of habeas 

corpus. 

For the foregoing reasons, we affirm the circuit court’s January 20, 2022, order.

5

The only difference between the two letters is that, in the April 27, 2012, letter, trial 

counsel uses “could” instead of “would.”
5

Affirmed.

ISSUED: March 7, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn