STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Neil Williams,
 

Petitioner Below, Petitioner FILED
 

April 17, 2015 

vs) No. 14-0835 (Ohio County 13-C-232) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Dennis Dingus, Warden, Stevens Correctional Center, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Neil Williams, appearing pro se, appeals the order of the Circuit Court of Ohio 

County, entered August 13, 2014, denying his fifth petition for writ of habeas corpus. Respondent 

Dennis Dingus, Warden, Stevens Correctional Center, by counsel Christopher S. Dodrill, filed a 

summary response. 

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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the 

Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. For the reasons expressed below, the decision of the circuit court is affirmed, in part, and 

reversed, in part, and this case is remanded to the circuit court with directions to afford petitioner 

an opportunity to show why the prohibition against his filing further habeas petitions in Ohio 

County should not be imposed. 

On September 14, 1998, an Ohio County grand jury indicted petitioner on fifty-two counts 

relating to child sexual offenses. Specifically, the indictment included the following: 

Seventeen counts of sexual assault in the third degree; nineteen counts of sexual 

abuse in the third degree; seven counts of exhibiting obscene material to a minor; 

five counts of photographing a minor in sexually explicit conduct; three counts of 

sexual abuse by a parent, guardian, or a custodian; and one count of sexual abuse in 

the first degree. 

The indictment stated that the offenses occurred in July of 1998 as to forty-three counts. As to the 

remaining nine counts, the offenses were said to have occurred between October of 1997 and 

December of 1997. No victim was identified by name. Instead, the indictment indicated that each 

victim’s name was known to the grand jury. 

On November 17, 1998, petitioner entered a guilty plea to fourteen counts of the 

indictment pursuant to a plea agreement. The fourteen counts included twelve felonies and two 

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misdemeanors. Specifically, petitioner pled guilty to eight counts of sexual assault in the third 

degree; one count of sexual abuse in the third degree; two counts of sexual abuse by a parent, 

guardian, or a custodian; one count of exhibiting obscene material to a minor; one count of sexual 

abuse in the first degree; and one count of photographing a minor in sexually explicit conduct. The 

remaining counts of the indictment were dismissed. 

On February 2, 1999, the circuit court sentenced petitioner to nine terms of one to five 

years, two terms of ten to twenty years, one term of ten years, one term of six months and one term 

of ninety days. Some of the terms were to be served consecutively and some were to be served 

concurrently. 

The circuit court re-sentenced petitioner on August 26, 1999, for the purposes of appeal. 

On appeal, petitioner’s counsel raised the following assignments of error: (1) whether the 

indictment was fatally defective because it failed to name or otherwise identify the alleged victims 

of the offenses that it charged; (2) whether the indictment was fatally defective because it failed to 

provide sufficient facts to inform petitioner of the nature and cause of the charges against him or to 

permit him to raise double jeopardy as a defense to subsequent prosecution; (3) whether the circuit 

court erred in accepting petitioner’s involuntary guilty plea at a hastily-convened plea hearing; and 

(4) whether the circuit court erred in denying petitioner’s two pre-sentence motions to withdraw 

his involuntary guilty plea. This Court refused petitioner’s direct appeal by an order entered March 

23, 2000. 

On October 22, 2000, petitioner filed a petition for writ of habeas corpus, and the circuit 

court appointed him counsel. Habeas counsel filed a second amended petition on June 6, 2003, and 

respondent warden filed his response on June 12, 2003. Subsequently, in a July 21, 2005, agreed 

order to correct sentence, the circuit court held that under the statute in effect at the time, the 

applicable sentence for sexual abuse by a parent, guardian, or a custodian was five to fifteen years. 

Thus, the circuit court found that petitioner had been sentenced to two illegal ex post facto terms of 

ten to twenty years under the current version of the statute for the two convictions for sexual abuse 

by a parent, guardian, or a custodian. The court re-sentenced petitioner to two five to fifteen terms 

on each of those counts, to be served consecutively to each other. The circuit court later denied all 

other habeas relief by an order entered November 8, 2005. When petitioner appealed pro se, this 

Court refused his appeal on December 6, 2006. 

On March 30, 2009, petitioner filed a pro se motion pursuant to Rule 35(a) of the West 

Virginia Rules of Criminal Procedure to reduce his sentence. The circuit court construed that 

motion as a petition for a writ of habeas corpus and dismissed the same by order entered April 8, 

2008. The circuit court found that “the grounds for relief the Petitioner has asserted have been 

previously and finally adjudicated or waived pursuant to [the July 21, 2005, agreed order to correct 

sentence].” When petitioner appealed, this Court refused his appeal on November 19, 2009. 

On December 10, 2010, petitioner filed a third habeas petition. Habeas counsel was 

appointed, who filed an amended petition and a Losh checklist of grounds for post-conviction 

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habeas corpus relief on April 19, 2011.1 Respondent warden filed his response on May 2, 2011. On 

May 6, 2011, the circuit court dismissed petitioner’s petition without a hearing concluding that 

“the grounds for relief the Petitioner has asserted have been previously and finally adjudicated or 

waived.” On September 21, 2012, this Court affirmed the dismissal of petitioner’s third petition.2 

Petitioner filed a fourth habeas petition on May 2, 2013, which the circuit court denied on 

December 18, 2013, in an order that petitioner did not appeal. 

On August 8, 2014, petitioner filed his fifth habeas petition. The circuit court denied the 

petition on August 13, 2014, after making the following findings: (1) “each ground raised in the 

Petition has been previously and finally adjudicated and/or waived”; and (2) after a review of “the 

pleadings, evidence, and pertinent legal authorities,” the petition was meritless. In addition, the 

circuit court directed (a) the Circuit Clerk of Ohio County to refuse further habeas petitions by 

petitioner; and (b) petitioner to file further habeas petitions only in the West Virginia Supreme 

Court of Appeals. 

Petitioner now appeals the circuit court’s August 13, 2014, order denying his habeas 

petition. We apply the following standard of review in habeas cases: 

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, 418, 633 S.E.2d 771, 772 (2006). 

The circuit court did not abuse its discretion in denying petition. 

The parties dispute whether the doctrine of res judicata bars petitioner’s fifth habeas 

petition. In Syllabus Point Four of Losh v. McKenzie, 166 W.Va. 762, 762-63, 277 S.E.2d 606, 608 

(1981), this Court held as follows: 

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. 

However, we need not decide this issue because the circuit court made the alternate finding 

1 See Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981). 

2 See Williams v. Ballard, No. 11–0889, 2012 WL 4373180 (W.Va. Supreme Court) 

(memorandum decision). 

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that after a review of “the pleadings, evidence, and pertinent legal authorities,” the petition was 

meritless. This finding is consistent with Syllabus Point One of Perdue v. Coiner, 156 W.Va. 467, 

194 S.E.2d 657, 658 (1973), in which we held that “[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.” 

We have reviewed petitioner’s fifth petition and its attached exhibits, and now determine 

that they demonstrate that petitioner is entitled to no relief. The only claim that could potentially 

have merit is petitioner’s assertion that the attorney appointed in his third habeas proceeding was 

ineffective because he had an undisclosed conflict of interest. Petitioner states that he recently 

discovered a February 22, 2011, letter in which the attorney informed the circuit court—but not 

petitioner—that his father was Prosecuting Attorney of Ohio County at the time of petitioner’s 

direct appeal. 

We find that petitioner fails to show that this letter qualifies as newly discovered evidence 

under the applicable standard set forth in the Syllabus of State v. Frazier, 162 W.Va. 935, 253 

S.E.2d 534 (1979), 3 for two reasons. First, while petitioner states he obtained the letter in 

connection with his civil action in McDowell County,4 he fails to explain why he could not have 

3 In the Syllabus of State v. Frazier, 162 W.Va. 935, 935-36, 253 S.E.2d 534, 534-35 

(1979), this Court held as follows: 

“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). 

4 See Williams v. Bonar, No. 14-0327, 2014 WL 6607846, at *3 (W.Va. Supreme Court, 

November 21, 2014) (memorandum decision) (dismissing petitioner’s action against various Ohio 

County magistrates, judges, prosecutors, defense attorneys, and police officers alleging a 

conspiracy to keep him in prison). McDowell County is where the Stevens Correctional Center is 

located. 

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obtained the letter in connection with his fourth habeas petition filed in 2013. Thus, we determine 

that petitioner has failed to demonstrate that he acted with due diligence in obtaining the letter. 

Second, petitioner has also failed to show that evidence that his counsel in his third habeas 

proceeding had a conflict of interest ought to produce a different result in the instant case. 

Petitioner also had counsel in connection with his second amended petition, and, apart from an 

agreed order to correct two illegal sentences, the circuit court denied all of petitioner’s claims in 

that proceeding as well. Because counsel who filed the second amended petition failed to achieve a 

better result, petitioner cannot show that anything counsel did—or did not do—in the third habeas 

proceeding was determinative of that proceeding. Thus, we find that petitioner’s claim that habeas 

counsel was ineffective in his third proceeding fails to satisfy the second prong of the Strickland 

/Miller standard.5 Therefore, we conclude that the circuit court did not abuse its discretion in 

denying petitioner’s fifth petition as meritless.6 

The circuit court impermissibly barred
 

petitioner from filing further petitions in Ohio County.
 

Petitioner does not make this issue a separate assignment of error, but argues it in support 

of his contention that the circuit court abused its discretion in denying his habeas petition. Thus, it 

is understandable that respondent warden does not address whether the circuit court impermissibly 

barred petitioner from filing further petitions in Ohio County. Nevertheless, we address this issue 

because “[u]nder West Virginia Constitution art. III, § 17, prisoners have a Constitutional right to 

5 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, 687 (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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 

(1995). 

6 In arguing that the circuit court abused its discretion in denying the petition, petitioner 

also asserts that Judge Sims was disqualified from ruling on the petition because petitioner 

recently sued the judge as a member of an alleged conspiracy to keep petitioner incarcerated. We 

affirmed Judge Sims’ dismissal with prejudice from petitioner’s McDowell County action in 

Williams v. Bonar, No. 14-0327, 2014 WL 6607846, at *3 (W.Va. Supreme Court, November 21, 

2014) (memorandum decision). Petitioner states that he has now filed a similar action in Ohio 

County. Nevertheless, respondent warden argues that petitioner’s only claim against Judge Sims is 

that Judge Sims has ruled against petitioner in his habeas proceedings. Respondent warden further 

argues that such a claim does not mean that Judge Sims has a conflict of interest such that he was 

disqualified from ruling on petitioner’s instant petition. We agree with respondent warden based 

on our prior finding that Judge Sims and other Ohio County judicial officers enjoyed absolute 

judicial immunity from petitioner’s action because his only claim was that “they ruled against him 

during the course of his criminal case and in subsequent habeas proceedings.” Id. at *2. Therefore, 

we find no merit to petitioner’s argument that Judge Sims was disqualified from ruling on the 

instant petition. 

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meaningful access to our courts subject to reasonable limitations imposed to protect courts from 

abuse.” Syl. Pt. 2, Mathena at 418, 633 S.E.2d at 772. In Syllabus Point Five of Mathena, we held, 

in pertinent part, that prior to the entry of any order restricting a prisoner’s access to the courts, 

“the circuit court must provide the prisoner an opportunity to show cause why such a limitation 

should not be imposed.” Id. at 418-19, 633 S.E.2d at 772-73. The circuit court did not afford 

petitioner such an opportunity before directing the Ohio County Circuit Clerk to refuse further 

habeas petitions by petitioner. Therefore, we reverse the circuit court’s prohibition against 

petitioner filing further habeas petitions in Ohio County and remand the case with directions to 

afford petitioner an opportunity to show why such a prohibition should not be imposed. 

For the foregoing reasons, we (1) affirm the decision of the Circuit Court of Ohio County 

to deny petitioner’s fifth habeas petition; (2) reverse the circuit court’s prohibition against 

petitioner filing further habeas petitions in Ohio County; and (3) remand the case with directions to 

afford petitioner an opportunity to show why such a prohibition should not be imposed. 

Affirmed, in Part, Reversed, in Part, 

and Remanded with Directions. 

ISSUED: April 17, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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