1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Tony J. Walton

, Petitioner Below

, Petitioner

vs ) No. 1 8

- 0 602 ( Fayette County 18

- C

- 84 )

Donnie Ames

, Superintendent

, Mt. Olive Correctional Complex

, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Tony J. Walton

, pro se
, appeals the J une 13

, 201 8 , order of the Circuit Court of Fayette County d eny ing his second petition for a writ of habeas corpus

. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, 1 by counsel Holly M. Flanigan , file d a summary

response in support of the circuit court’s order

.

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 c onsideration 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 May of 2009, a Fayette County Grand Jury indicted petitioner on one count of first

degree robbery and one count of assault during the commission of a felony. The indictment alleged that petitioner robbed a Family Dollar store and assaulted the manager. Following a two

- day trial, the jury convicted petitioner of both coun ts of the indictm ent . Thereafter, the circuit court sentenced petitioner to a term of fifty years of incarceration for first

- degree robbery and a term of

1 Since the filing of the appeal in this case, the superintendent at M t

. Olive Correctional Complex has changed and the superintendent is now Donnie Ames . The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate

Procedure

. Additionally, effective July 1, 2018, the positions formerly designated as “wardens” are now designated “superintendents.” See W. Va. C ode § 15A

- 5

- 3. 

### FILED
November 15, 2019

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

two to ten years of incarceration for assault during the commission of a felony , to be served consecutively. In June of 2010, petitioner appealed his convictions, arguing that the jury was erroneously instructed on intimidation. By order entered on September 22, 2010, t his C ourt refused petitioner ’ s criminal appeal.

On June 18, 2012, petitioner , by counsel, filed a petit ion for a writ of habeas corpus with

this Court

, alleg ing ineffective assistance of trial counsel. By order entered September 20, 2012

, this Court refused petitioner’ s habeas petition

, without prejudice

, to allow “p etitioner to re

- file in [the] circuit cou rt in order to permit an evidentiary hearing on the allegation of ineffective

assistance of trial counsel. ” 2 On October 29, 2012, petitioner filed a petition for a writ of habeas corpus in the circuit court

.

On June 5, 2013, petitioner filed a Losh list, asserting the following grounds for habeas

relief: ( 1) ineffective assistance of trial counsel; ( 2) denial of petitioner’s right to a trial given the lack of a jury venire representative of the community ; ( 3) improper use of a photo line

- up; ( 4)

denial of petitioner’ s right to an impartial jury given one juror’s fear of retaliation ; ( 5) improper jury instruction concerning intimidation; and ( 6) ineffective assistance of appellate counsel

. 3 The circuit court subsequently held two hearings. At a June 5, 2013 , hearing, petitioner “advise d the [circuit court] that he was satisfied with his habeas counsel’s representation and waived, on the record, all grounds not asserted in his Losh [list].” At a July 15, 2013, hearing, the court heard testimony from petitione r, petitioner’s trial counsel, and a deputy circuit clerk who testified that the Fayette County Circuit Clerk did not have a policy of excluding certain races from being selected for jury service.

By order entered August 13, 2013, the circuit court found that none of petitioner’s grounds entitled him to habeas relief. With regard to petitioner’s ineffective assistance of appellate counsel

claim , the circuit court rejected this ground given that he presented no testimony or evidence to support it. Petitioner appealed the August 13, 2013, order in Walton v. Ballard , No. 14

- 0196, 2015

WL 571031 ( W. Va. Feb. 9, 2015 ) (memorandum decision). In Walton , this Court affirmed the circuit court’s ruling, adopting its “ well

- reasoned findings and conclusions of law as to those assignments of error raised in this appeal .” Id. at *2.

On April 19, 2018, petitioner, pro se, filed a second habeas petition, raising ineffective assistance of habeas counsel. Petitioner argued that both his criminal appellate counsel an d his habeas counsel failed to raise issues that, if asserted, would have changed the outcome of his prior

pr oceedings. Petitioner asserted that habeas counsel was ineffective in failing to call appellate

counsel as a witness at the July 15, 2013, hearing. By order entered June 13, 2018, the circuit court

found that habeas counsel was not ineffective. The court determined that there were no issues that

2 We take judicial notice of the record in the original jurisdiction case, Supreme Court No.

12

- 0735.

3 In Losh v. McKenzie , 166 W. Va. 762, 768

- 70, 277 S.E.2d 606, 611

- 12 (1981), we compiled a non

- exclusive list of potential grounds t hat a circuit court should address with a habeas petitioner as to whether each ground was being either waived or raised in the proceeding.3

either petitioner’s habeas counsel or his criminal appellate counsel could have raised that would

have cha nged the o utcome of his prior proceedings. The court found that petitioner offered nothing

new in his second petition other than self

- ser ving assertions and speculation, and further determined that petitioner ’s claim of ineffective assistance of habeas cou nsel did not warrant a hearing or the appointment of new counsel.

It is from the circuit court’s June 13, 2018, order that petitioner now appeals. In Syllabus

Point s 1 and 3 of Anstey v. Ballard , 237 W. Va. 411, 787 S.E.2d 864 (2016 ), we held:

“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).

. . . .

“‘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 there with 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).

Additionally, i n S yllabus P oint 4 of Losh v. McKenzie

, 166 W. Va. 762, 277 S.E.2d 606 (1981), we held , in pertinent part :

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 couns el at the omnibus habeas corpus [

. ]

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 (1984), which requ ires the following: (1)

counsel’ s performance was deficient under an objective standa rd of reasonableness; and (2) there is a reasonable pr obability 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, 459 S.E.2d 114 (1995) (adopting Strickland ).

On appeal, petitioner argues that habeas counsel was ineffective in failing to explain that the purpose of the Losh list was not only to raise certain grounds, but also to waive other issues. Respondent counters that this Court should decline to address this issue because it was not raised4

before the circuit court

. 4 We consider this issue given that notification of the raise

- or

- waive requirement is a necessary characteristic of an omnibus hearing , which triggers the application of the res judi cata doctrine to successive habeas petitions.

In S yllabus P oint 1 of Losh , we held:

An omnibus habeas corpus hearing as contemplated in [West Virginia Code § 53

- 4A

- 1 to

- 11] occurs when: (1) an applicant for habeas corpus is represented by counsel or appears pro se having knowingly and intelligently waived his right to counsel; (2) the trial court inquires into all the standard grounds for habeas corpus relief; (3) a knowing and intelligent waiver of those grounds not asserted is made by the applicant upon advice of counsel unless he knowingly and intelligently waived his right to counsel ; and, (4) the trial court drafts a comprehensive ord er including the findings on the meri ts of the issues addressed and a notation that the defendant was advised concerning his obligation to raise all grounds for post

conviction relief in one proceeding.

166 W. Va. at 762, 277 S.E.2d at 607

- 08. (Emphasis added). Here, the circuit court noted in its August 13, 2013, order, that petitioner “advised the [c]ourt that he was satisfied with his habeas counsel’s representation and waived, on the record, all grounds not asserted in his Losh [list].” Therefore, we reject petitioner’s argument that he w as not advised that he must raise or waive any applicable grounds for habeas relief during his omnibus proceeding.

Upon our review of the record, we find that petitioner’s remaining arguments on appeal

were ones raised before the circuit court: that bot h his criminal appellate counsel and his habeas counsel failed to raise issues that, if asserted, would have changed the outcome of his prior proceedings. Respondent counters that all the issues petitioner alleges that appellate counsel failed

to raise in his cri minal appeal were raised by habeas counsel in the omnibus proceeding and rejected by the circuit court in its August 13, 2013, order. We agree with respondent and concur with the circuit court’s finding that petitioner offered nothing new in his sec ond petition other than

self

- serving assertions and speculation. See Losh , 166 W. Va. at 771, 277 S.E.2d at 612 (finding that allegations made without adequate factual support “do [ ] not justify the issuance of a writ, the

4 In Syllabus Point 1 of W est V irginia Department of Health & Human Res ources Empl oyee s Fed eral Credit Union v. Tennant

, 215 W. Va. 387

, 599 S.E.2d 810 (2004), we held:

A s a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an ap pellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the tr ial court if objected to there.

( I nternal quotations and citations omitted).5

appointment of counsel, and the holding of a hearing”). Therefore, 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 June 13, 2018, order denying petitioner’s second petition for a writ of habeas corpus.

Affirmed

.

ISSUED : November 15, 2019

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison