1 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Yasser Abdelhaq, 

Petitioner Below, Petitioner

vs.) No. 20-0521 (Ohio County 19-C-196 MJO) 

Donnie Ames, Superintendent, 

Mt. Olive Correctional Complex, 

Respondent Below, Respondent

MEMORANDUM DECISION

Self-represented petitioner Yasser Abdelhaq appeals the March 30, 2020, order of the 

Circuit Court of Ohio County denying his second petition for a writ of habeas corpus. Respondent 

Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Lara K. Bissett, 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 January of 2000, petitioner was indicted in the Circuit Court of Ohio County on one 

count of first-degree murder for the stabbing death of Dana Tozar (“the victim”). At a jury trial in 

August of 2000, petitioner was convicted of first-degree murder and sentenced to a life term of 

incarceration without the possibility of parole. Petitioner appealed his conviction in State v. 

Abdelhaq (“Abdelhaq I”), 214 W. Va. 269, 588 S.E.2d 647 (2003), and this Court vacated the 

conviction due to a defective indictment and remanded the matter. Id. at 274, 588 S.E.2d at 652.

Shortly after this Court’s decision in Abdelhaq I, petitioner contends that he filed in the circuit 

court, as a self-represented litigant, a “blue print” outlining his strategy for his second trial. In this 

“blue print,” petitioner states that he “instructed counsel not to tell the jury he was guilty of murder 

FILED

June 23, 2021 

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2 

[in a second trial].” 

Petitioner was indicted for a second time on one count of first-degree murder for the 

murder of the victim and was represented by attorneys Robert G. McCoid and John J. Pizzuti. At 

petitioner’s second trial, he admitted to killing the victim and sought a conviction on the 

lesser-included offense of second-degree murder. Petitioner was again convicted of first-degree 

murder. In the bifurcated sentencing stage, the jury did not recommend mercy. Accordingly, the 

circuit court sentenced petitioner to a life term of incarceration without the possibility of parole. 

Subsequently, petitioner’s second appeal to this Court was refused by order entered on May 25, 

2005. 

In 2006, petitioner filed his first petition for a writ of habeas corpus in the circuit court, 

raising the following fourteen grounds for relief: (1) Whether petitioner was denied effective 

assistance of trial counsel; (2) Whether the evidence was insufficient to support a conviction for 

first-degree murder; (3) Whether the introduction of autopsy photographs was more prejudicial 

than probative; (4) Whether petitioner was denied a right to a fair sentencing when the circuit court 

allowed the victim’s family to testify during the second phase of the bifurcated trial as to their 

preference that he be denied mercy; (5) Whether the jury should have been instructed with regard

to mitigating factors on which it could determine petitioner’s eligibility for parole; (6) Whether the 

circuit court’s refusal to suppress all evidence seized during a warrantless search of the motel room 

where the crime took place was erroneous; (7) Whether the admission of hearsay testimony was 

erroneous; (8) Whether the admission of photographs of the victim before her death, i.e. “life 

photographs,” was erroneous; (9) Whether the circuit court’s refusal to admit evidence of the 

victim’s drug use was erroneous; (10) Whether the circuit court’s refusal to admit evidence of a 

witness’s past criminal history was erroneous; (11) Whether the inclusion of a jury instruction with 

regard to “transferred intent” was erroneous; (12) Whether the circuit court’s failure to include a 

jury instruction defining the term “spontaneous,” as it related to the issue of deliberation, was 

erroneous; (13) Whether the circuit court’s jury instruction, instructing the jury that the use of a 

deadly weapon allows an inference of malice and intent to kill, was incomplete; and (14) Whether 

the circuit court’s refusal to limit petitioner’s cross-examination of a State’s witness with regard to 

specific intent was erroneous. The circuit court denied the petition by order entered on March 22, 

2006, without holding a hearing. 

Petitioner appealed the circuit court’s March 22, 2006, order denying his first habeas 

petition on May 3, 2006. By order entered on December 6, 2006, this Court “grant[ed] 

[petitioner’s] petition for appeal.” The Court did not reverse the March 22, 2006, order, but 

remanded the case to the circuit court “for the holding of an omnibus habeas corpus hearing on the 

issue of ineffective assistance of [trial] counsel.” Upon remand, the parties litigated whether 

petitioner was barred from raising every issue set forth in the habeas petition except for ineffective 

assistance of trial counsel. Following a September 11, 2015, hearing,1 by order entered on October 

1

Litigation in petitioner’s first habeas proceeding was protracted. As the circuit court 

explained in a December 29, 2016, order denying petitioner’s first habeas petition, “[t]hough much 

has happened in the intervening years since this matter was remanded to [the] [c]ircuit [c]ourt by 

(continued . . .) 
3 

19, 2015, the circuit court ruled that petitioner was barred “from raising any claim other than his 

claim for ineffective assistance of [trial] counsel,” finding that petitioner misinterpreted this 

Court’s decision in Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), setting forth 

principles governing the application of the doctrine of res judicata in habeas cases. 

With regard to ineffective assistance of trial counsel, petitioner and both trial counsels 

testified at an August 2, 2016, omnibus hearing. Petitioner asserts that the issue of his strategy 

“blue print” for the second trial “was never settled” because “counsel state[d] they did not have a 

copy of the trial strategy.” Nevertheless, Mr. McCoid testified unequivocally that petitioner 

understood “the full ramifications” of counsels’ trial strategy of admitting that he killed the victim 

and asking for a conviction of second-degree murder and gave his consent. At several points 

during his testimony, Mr. McCoid addressed discussions the attorneys had with petitioner 

concerning the trial strategy, petitioner’s understanding of the risks and benefits of such a strategy, 

and petitioner’s consent to pursuing it. Having the benefit of seeing the State’s theory of the case 

during the first trial, Mr. McCoid testified that they reevaluated the trial strategy since this “was 

not a case about whether [petitioner] had taken [the victim’s] life,” but was rather “about what his 

mental status was at the time that he did so.” Mr. McCoid relied on portions of his opening 

statement where he admitted that petitioner killed the victim, but urged the jury to convict 

petitioner of second-degree murder due to the absence of premeditation. Based upon the opening, 

Mr. McCoid indicated during the omnibus hearing that

[i]t is inconceivable that I would have given an opening statement in a first-degree

murder case asking the jury to convict my client of second-degree murder without

hav[ing] closely consulted with my client, discussed the minutia associated with

that decision and obtained the full consent of my client in . . . advancing that

defense.

Thereafter, by order entered on December 29, 2016, the circuit court rejected petitioner’s 

ineffective assistance claim and denied the habeas petition.

Petitioner appealed the circuit court’s December 29, 2016, denial of the habeas petition to 

this Court. However, petitioner did not challenge the court’s October 19, 2015, order allowing him 

to raise only ineffective assistance of trial counsel at the omnibus hearing. In Abdelhaq v. Terry

(“Abdelhaq II”), No. 17-0078, 2018 WL 6131283 (W. Va. November 21, 2018) (memorandum 

decision), this Court affirmed the circuit court’s denial of the habeas petition. Relevant here, the 

Court found that “[a]side from [petitioner’s] unsupported claims that he never agreed to the 

strategy to admit culpability and seek a second-degree murder conviction, the evidence obtained at 

the omnibus hearing overwhelmingly establishes that petitioner’s trial counsel advanced this 

strategy with petitioner’s consent and support.” Id. at *3. Petitioner subsequently filed a petition 

the Supreme Court of Appeals, the events are not relevant for [present] purposes.” 
4 

for rehearing which the Court refused by order entered on March 7, 2019. On March 15, 2019, this 

Court issued its mandate, and the decision in Abdelhaq II became final.2 

Petitioner filed his second habeas petition in the circuit court on August 12, 2019. In the 

habeas petition, petitioner argued that the circuit court erred in its October 19, 2015, order in 

Abdelhaq II by allowing him to raise only ineffective assistance of trial counsel at the omnibus 

hearing. Petitioner further argued that habeas counsel in Abdelhaq II was ineffective in failing to 

adequately argue to the circuit court that none of the fourteen issues set forth in the first habeas 

petition were adjudicated prior to the August 2, 2016, omnibus hearing. Accordingly, petitioner 

reasserted every issue from the first habeas petition in his second habeas petition.3 With regard to 

ineffective assistance of trial counsel, petitioner argued 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 March 30, 2020, the circuit court denied the second habeas petition, 

finding that petitioner’s claims were adjudicated in the first habeas proceeding in Abdelhaq II. The 

circuit court rejected petitioner’s claim that habeas counsel failed to adequately argue that none of 

the fourteen issues set forth in the first habeas petition were adjudicated prior to the August 2, 

2016, omnibus hearing, due to a lack of support for the claim. Finally, the circuit court found that 

the United States Supreme Court’s decision in McCoy did not represent a change in the law such 

that petitioner would be allowed to relitigate the issue of whether he consented to trial counsels’ 

strategy of admitting that he killed the victim and asking for a conviction of second-degree murder. 

Petitioner now appeals the circuit court’s March 30, 2020, order denying his second habeas 

petition. This Court reviews a circuit court 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). 

2

Rule 26(a) of the West Virginia Rules of Appellate Procedure provides, in pertinent part, 

that “an opinion of the Court or memorandum decision of the Court considering the merits of a 

case is not final until the mandate has been issued.” 

3

In petitioner’s second habeas petition, he raised one additional issue: that he was not read 

his Miranda rights before questioning in a custodial setting. Notwithstanding that conclusory 

allegation, petitioner failed to include factual allegations to support his contention. Therefore, we 

find that petitioner’s claim based upon Miranda v. Arizona, 384 U.S. 436 (1966), was subject to 

summary denial. See Losh v. McKenzie, 166 W. Va. 762, 771, 277 S.E.2d 606, 612 (1981) (finding 

that an assertion of a claim “without detailed factual support does not justify the issuance of a writ, 

the appointment of counsel, and the holding of a hearing”). 
5 

. . . . 

“‘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 

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: ineffective assistance of counsel at the omnibus habeas corpus hearing . . . 

or, a change in the law, favorable to the applicant, which may be applied 

retroactively. 

On appeal, petitioner argues that the circuit court erred in its October 19, 2015, order in 

Abdelhaq II in allowing him to raise only ineffective assistance of trial counsel at the omnibus 

hearing. Petitioner further argues that none of the fourteen issues set forth in the first habeas 

petition were adjudicated prior to the August 2, 2016, omnibus hearing because our December 6, 

2006, order granting his first habeas appeal was not a decision on the merits pursuant to the 

Syllabus of Smith v. Hedrick, 181 W. Va. 394, 382 S.E.2d 588 (1989). Respondent makes the 

concession that, pursuant to Smith, none of the issues set forth in the first habeas petition, except 

for ineffective assistance of trial counsel, were adjudicated in Abdelhaq II. We decline to accept 

respondent’s concession.4 

In the Syllabus of Smith, we held that:

[t]his Court’s rejection of a petition for appeal is not a decision on the merits

precluding all future consideration of the issues raised therein, unless, as stated in 

[former] Rule 7 of the West Virginia Rules of Appellate Procedure, such petition is 

rejected because the lower court’s judgment or order is plainly right, in which case 

no other petition for appeal shall be permitted.5

4

In Syllabus Point 8 of State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991), we held that 

this Court will accept a party’s concession only after our own independent review of the issue. 

5

The present Rules of Appellate Procedure took effect on December 1, 2010. 
6 

181 W. Va. at 394, 382 S.E.2d at 588. We find that the Syllabus of Smith, which governs rejections 

of petitions for appeal, does not apply to this case because our December 6, 2006, order “grant[ed] 

[petitioner’s] petition for appeal.” See Abdelhaq II, 2018 WL 6131283, at *1 (stating that, in our 

December 6, 2006, order, “this Court granted petitioner relief”) (emphasis added). While granting 

petitioner’s first habeas appeal, we did not reverse the circuit court’s prior denial of the first habeas 

petition, but remanded the case to the circuit court “for the holding of an omnibus habeas corpus 

hearing on the issue of ineffective assistance of [trial] counsel.” See Abdelhaq II, 2018 WL 

6131283, at *1 (stating that we “ordered the matter remanded for the holding of an omnibus 

hearing on the limited issue of ineffective assistance of trial counsel”) (emphasis added). Upon 

remand from our December 6, 2006, order, the parties litigated the issue of whether petitioner 

could raise only ineffective assistance of trial counsel. By order entered on October 19, 2015, the 

circuit court ruled that petitioner was barred “from raising any claim other than his claim for 

ineffective assistance of [trial] counsel,” finding that petitioner misinterpreted this Court’s 

decision in Losh where we set forth principles governing the application of the doctrine of res 

judicata in habeas cases.

If petitioner believed that the circuit court erred in ruling that he was barred from raising 

any claim other than his claim of ineffective assistance of trial counsel at the omnibus hearing, the 

time for challenging that ruling was in Abdelhaq II because, “if an appeal is taken from what is 

indeed the last order disposing of the last of all claims as to the last of all parties, then the appeal 

brings with it all prior orders.” Riffe v. Armstrong, 197 W. Va. 626, 637, 477 S.E.2d 535, 546 

(1996), modified on other grounds, Moats v. Preston Cty. Comm’n, 206 W. Va. 8, 521 S.E.2d 180 

(1999). The only issue petitioner raised in Abdelhaq II was ineffective assistance of trial counsel, 

and he failed to challenge the ruling that he was barred from raising his other issues. With the 

issuance of this Court’s mandate in Abdelhaq II, all rulings therein have become final, and we no 

longer have jurisdiction of that case. W. Va. Rul. App. Proc. 26(a) (providing, in pertinent part, 

that the “[i]ssuance of the mandate terminates jurisdiction of the Supreme Court in an action before 

this Court”). Therefore, as the circuit court’s ruling set forth in its October 19, 2015, order in 

Abdelhaq II is now final, we find that the circuit court did not err in finding that the issues 

petitioner reasserted in the second habeas petition were adjudicated in Abdelhaq II.

6

Nevertheless, petitioner further argues that he is entitled to an omnibus hearing and 

appointment of counsel in his second habeas proceeding pursuant to Syllabus Point 4 of Losh

based on alleged ineffective assistance of habeas counsel and a purported change in the law 

6

Respondent suggests that we remand this case to the circuit court with directions to make 

findings of fact and conclusions of law as to every issue petitioner raises except for ineffective 

assistance of trial counsel. However, respondent makes this suggestion based on the concession 

that none of the other issues set forth in the first habeas petition were adjudicated in Abdelhaq II. 

As we explained above, we decline to accept respondent’s concession. Therefore, we find that the 

circuit court’s correct finding that the issues petitioner reasserted in the second habeas petition 

were adjudicated in Abdelhaq II constituted a sufficient basis to support its denial of the second 

habeas petition. 
7 

favorable to him. We disagree and easily dispense with petitioner’s ineffective assistance of 

habeas counsel claim pursuant to the following standard: 

In the West Virginia courts, claims of ineffective assistance of counsel are 

to be governed by the two-pronged test established in Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (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. 

Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Here, we find that habeas 

counsel’s performance was not deficient under an objective standard of reasonableness as the 

circuit court’s October 19, 2015, order reflects that habeas counsel presented multiple arguments 

that the circuit court “could consider issues other than . . . ineffective assistance of counsel . . . on 

remand” from this Court’s December 6, 2006, order. Therefore, we conclude that the circuit court 

properly found there was no support for the claim that habeas counsel in Abdelhaq II failed to 

adequately present this issue to the circuit court.

With regard to the other exception to the doctrine of res judicata allegedly applicable to this 

case, petitioner argues that the United States Supreme Court’s decision in McCoy is a change in the 

law favorable to him, but fails to address whether McCoy “may be applied retroactively.” Syl. Pt. 

4, Losh, 166 W. Va. at 762-63, 277 S.E.2d at 608. Even if McCoy may be retroactively applied, it 

is arguable that the holding of McCoy does not extend beyond of the death penalty context. In 

McCoy, the Supreme Court held that “a defendant has the right to insist that counsel refrain from 

admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the 

defendant the best chance to avoid the death penalty.” 138 S.Ct. at 1505. The Supreme Court 

further stated that “[b]ecause a client’s autonomy, not counsel’s competence, is in issue,” the test 

for determining ineffective assistance of counsel, set forth in Strickland, does not apply when a 

defendant objects to trial counsel’s strategy of admitting guilt. 138 S.Ct. at 1510-11. Rather, the 

Supreme Court found that trial counsel’s violation of the defendant’s Sixth Amendment-secured 

autonomy is not subject to harmless error review. Id. at 1511.7

 

Assuming, arguendo, that petitioner could show that McCoy applies, the Supreme Court in 

McCoy distinguished that case from cases where the defendant “complain[s] about the admission 

of his guilt only after trial.” Id. at 1509 (citing Florida v. Nixon, 543 U.S. 175, 185 (2004)). Here, 

we found in Abdelhaq II that, “[a]side from his unsupported claims that he never agreed to the 

strategy to admit culpability and seek a second-degree murder conviction, the evidence obtained at 

the omnibus hearing overwhelmingly establishes that petitioner’s trial counsel advanced this 

7

The Sixth Amendment to the United States Constitution provides that a defendant is 

entitled to “the [a]sistance of [c]ounsel for his defence.” In McCoy v. Louisiana, 138 S.Ct. 1500 

(2018), the United States Supreme Court found that “the Sixth Amendment ‘contemplat[es] a 

norm in which the accused, and not a lawyer, is master of his own defense.’” 138 S.Ct. at 1508 

(quoting Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10 (1979)). 
8 

strategy with petitioner’s consent and support.” 2018 WL 6131283, at *3. Therefore, we find that 

the instant case is factually distinguishable from McCoy and concur with the circuit court’s finding 

that petitioner would be not allowed, pursuant to Syllabus Point 4 of Losh, to relitigate the issue of 

whether he consented to trial counsels’ strategy of admitting that he killed the victim and asking 

for a conviction of second-degree murder. Accordingly, we conclude that the circuit court did not 

abuse its discretion in denying petitioner’s second habeas petition. 

For the foregoing reasons, we affirm the circuit court’s March 30, 2020, order denying 

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

Affirmed. 

ISSUED: June 23, 2021 

CONCURRED IN BY: 

Chief Justice Evan H. Jenkins 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison 

Justice William R. Wooton