### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS William Mark Johnson, 

### FILED Petitioner Below, Petitioner September 19, 2014 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS 

### vs) No. 13-1006 (Preston County 02-C-42) OF WEST VIRGINIA 

### David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent 

### MEMORANDUM DECISION Petitioner William Mark Johnson, by counsel D. Adrian Hoosier, II, appeals the Circuit Court of Preston County’s order entered August 7, 2013, denying his petition for writ of habeas corpus. Warden David Ballard, by counsel Julie Warren, filed a response. Petitioner has filed a reply. This 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 1988, petitioner was charged in the kidnapping and rape of a thirteen-year-old girl. He and his brother were co-defendants. Petitioner was convicted of one count of kidnapping, one count of aiding and abetting first degree sexual abuse, three counts of aiding and abetting first degree sexual assault, and one count of first degree sexual assault. Petitioner was sentenced to sixty-one to one hundred and five years of incarceration. Petitioner’s first parole hearing is scheduled for January 11, 2059. Petitioner appealed his case to this Court in November of 1989, and the petition was refused by order dated January 9, 1990. In 1992, petitioner filed a petition for writ of habeas corpus alleging twenty-three assignments of error. Petitioner was represented at the time by Attorney Howard Higgins. This petition was denied. Petitioner filed a second petition for writ of habeas corpus following this Court’s decision in In the Matter of an Investigation of West Virginia State Police Crime Laboratory, Serology Division (Zain I), 190 W.Va. 321, 438 S.E.2d 501 (1993), which was denied. In 1998, this Court refused petitions for appeal in both cases. Petitioner then filed a third habeas petition in 2002, and a fourth in 2007. Those two petitions were consolidated by the circuit court, and, following an evidentiary hearing, both were denied 1

### on December 10, 2010. For purposes of appeal, the order denying the petitions was reissued on January 7, 2011. Petitioner appealed the denial to this Court in 2011, arguing in part that prior habeas counsel was ineffective. The case was remanded by memorandum decision on November 20, 2012, due to the circuit court’s failure to make findings of fact and conclusions of law addressing the allegations of ineffective assistance of counsel of Attorney Higgins, petitioner’s prior habeas counsel. On December 17, 2012, petitioner filed a motion for new hearing to submit additional evidence following this Court’s partial remand and issuance of new case law. Petitioner argued that counsel was ineffective based on two decisions of the Supreme Court of the United States, issued in 2012, for his failure to convey all plea bargain offers. Petitioner also filed a pro se motion to reduce his sentence on January 7, 2013. The court held a hearing on May 17, 2013, regarding the claims of ineffective assistance of counsel. On August 7, 2013, the circuit court entered an order denying petitioner’s petition for writ of habeas corpus. The court detailed each allegation of ineffective assistance and found that counsel was not ineffective. Specifically, prior habeas counsel was found not to be ineffective in grand jury proceedings; in not raising that trial counsel was not prepared to cross-examine the State’s expert; in failing to raise the issue that petitioner’s co-defendant was acquitted for criminal acts petitioner was accused of aiding and abetting in; in not addressing that petitioner’s sentence was harsher than that of his brother; that counsel did address statements made by the prosecutor; in failing to raise the ground that the same trial prosecutor was present when Zain testified differently at the co-defendant’s trial; in failing to raise the issue of the court’s denial of a continuance; and, in failing to raise the issue that trial counsel failed to convey all plea offers. This Court reviews appeals of circuit court orders denying habeas corpus relief 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.” Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). See also Ballard v. Ferguson, 232 W.Va. 196, __, 751 S.E.2d 716, 719 (2013) (“Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong.” (quoting Syl. pt. 1, State ex rel
. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975)). Petitioner argues two assignments of error on appeal. First, he argues that the habeas court erred in failing to find that prior habeas counsel, Howard Higgins, was ineffective. Petitioner argues that Attorney Higgins failed to address issues with the grand jury proceedings, including that the entire body of the grand jury did not vote on the indictment and that the 2

### evidence was insufficient to support a charge of first degree sexual assault. Specifically, he argues that there was no evidence of “serious bodily injury” to the victim as required by West Virginia Code § 61-8B-3. Petitioner’s second assignment of error is that the habeas court erred in denying the petition for writ of habeas corpus despite overwhelming evidence of petitioner’s actual innocence. He argues that he was convicted of aiding and abetting an offense later determined in his co-defendant’s trial not to have occurred. Therefore, he asserts his innocence with regard to this count. Having reviewed the circuit court’s “Order Denying Petitioner’s Writ of Habeas Corpus” entered on August 7, 2013, we find that the court did not err in finding that counsel was not ineffective, as there was no evidence in the record on appeal showing that the entire grand jury failed to vote. Further, the evidence before the grand jury was sufficient, as proven by the fact that petitioner was later found guilty of first degree sexual assault by a jury. As to the second assignment of error, the lower court describes in detail how petitioner was properly convicted of aiding and abetting criminal acts for which his brother, the principal, was later acquitted. We hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. For the foregoing reasons, we affirm. Affirmed. ISSUED: September 19, 2014 CONCURRED IN BY: Chief Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II

3

# ----- Co 

# P'i

••J ./ 

### IN THE CIRCUIT COURT OF PRESTON COUNTY, WEST VIRGINIA 

### \VILLIAlVl MARK JOHNSON,
. Petitioner, Y. 

### IIConsolidated Civil Action No. 02-C-42 Honorable Lawrance S. Miller, Jr. DAVID BALLARD, WARDEN, MT. OLIVE CORRECTIONAL COMPLEX, Respondent. ORDER 

### DENYING PETITIONER'S WRIT OFHABEAS CORJ'US On December 10, 2010, the 

### Court entered an Order**D~nying** 

### Petition for Habeas 

### Corpus 

### in Civil Actions Nos. 02-C-42 al;ld 

### 07-C-2S6. The 

### Order Denying Petition 

### for Habeas 

### Corpus
was 

### reissued on 

### January 7, 2011. fqr the purpose ofallowing counsel additional 

### time to file the 

### Notice ofIntent to Appeal with 

### the Supreme Court ofAppeals 

### in accordance 

### with the new rules. (See 

### Order, Jan. 

### 7,2011.) Petitioner 

### \Villian;J. Johnson, 

### by counsel Melissa 

### Giggenbach, alleged 

### six assigrunents 

### of
error on appeal 

### to the Supreme Court 

### ofAppeals. 

### (Notice ofIntentto Appeal, Extra Sheets 1­ 2.) The sixth assiWlment of

### error stated,**'~The** 

### Habeas 

### court erred 

### mneverruling. on 

### the

.allegatio'h 

### ofineffective a..ssistarice of

### prior habeas counsel. Howard Higgens 

### [sic]. Testimony
was given 

### on this charge 

### during 

### the Omnibus hearing for 

### 02-C-42 and**07-C~256."** 

### (Id.)· The Supreme 

### Court of

### Appeals ofWest 

### Virginia found the Circuit Court did not err regarding 

### the first five assignments 

### of

### error. Regarding the sixth 

### assignment oferror, 

### the Supreme Court ofAppeals 

### stated: Petitioner's final assignment 

### oferror is that

### the 

### circ1.:Lit court erred 

### in failing to make findings 

### offact and 

### conclusions oflaw addressing 

### his allegations 

### of ineffective assistance 

### ofl1is first habeas 

### counsel Mr. 

### Higgins. 

### Notwithstanding the circuit court's extensive analysis 

### ofthe other assignments 

### oferror, petitioner



### . is correct 

### that the order does 

### not'contain f'indirigs in this regard. This 

### appears to

l1ave 

### been a mere oversight 

### by the 

### circuit-court. This Court remands 

### the case to 

### 1the circuit court for findings and conclusions in accordance with Rule 9(c) ofthe Rules Governing Post-Conviction Habeas Corpus Proceedings on the claim of ineffective assistance offirst habeas counsel. 

### Johnson v. Ballard. Warden. No. 11:-0209 (Nov. 

# 20, 2012) (memorandum decision), Accordingly, the issue bef-o:re 

### the Court is whether first habeas counsel, Howard Higgins,was ineffective. The Supreme Court ofAppeals 

### has directed 

### this Court to 

### make findings offact and conclusions oflaw in accordance "vith Rule 9(c) ofthe Rules Governing Post-Conviction '. 

### . Habeas Corpus Proceedings. On December 17,2012, Petitioner, through counsel Melissa Giggenbacb, filed a Motion for New Hearing to SubmitAdditionai Evidence Follo'Wing Partial Remand 

### and New Case Law
on December 17,2012. Petitioner alleges ineffective assistance ofcounsel under the authority
. oftwo decisions issued 

### by the Supreme. Court ofthe United States 

### in 2012for failure to convey all plea bargain offers. Petitioner lohnson 

### also filed a

### pro se Motion 

### to Reduce Sentence on January 7, 2013. This Court set a hearing on both motions for January 25,2013. Following 

### the January 25 hearing, this Court held an evidentiary hearing on May 17,2013. Petitioner Johnson**c~lIe~** trial counsel 

### David Brown as a witness. Petitioner Jobnson also testified. Atthe conclusion of the hearing, the Courttook the matter under advisement and-asked for proposedfindings offact

, 

### and conclusions oflaw. Petitioner Johnson filed

### pro se findings offact and conclusions oflaw
onhis Rule 35(b) motion on June 12, 2013. Petitioner Johnson through counsel filed proposed findings offact and conclusions oflaw on July 1,2013. The Warden did not file 

### any proposed findings offact and conclusions oflaw.



### 2

### FACTUALAND PROCEDURAL HISTORY Willjam Mark 

### Johnson ("Petitioner") was indicted in 

### the ltme 1988 

### Term by the Preston County 

### Grand Jury, along with his 

### brot11er and co-defendant, 

### Elwood,**Joh~son,** 

### in Felony Case No. 88-F-32. 

### Petitioner was tried 

### separately by 

### a petitjury**~md** 

### found 

### gUilty on November 17, 

### 1988, ofthe 

### following 

### six felony counts: 1. Kidnapping, with mercy; 2. Aiding and Abetting to one count ofFirst Degree Sexual Abuse; 3. 

### Aiding andAbetting to three counts ofFirstDegree Sexual 

### Assault; 4. One count ofFirst Degree Sexual Assault., , Petitioner 

### was found not guilty ofthe remaining eight counts 

### in the indictment. (Dec. 

### 10, 2010 Oraer Denying Petition for Habeas Corpus at 

### 1.) Trial Judge Robert C. Halbritter sentenced Petitioner.Johnson on November 28,) 988, 

### as follows: 1. Kidnapping

- remainder ofhi-s life with mercy; 2. ;\iding and Abetting First Degree Sexual Abuse

- one to tive (l 

### to 5) years to run consecutive; 

### 3. Aiding and Abetting First Degree Sexual Assault

- fifteen to twenty-five 

### (15 to 25) years each for three counts to run consecutive; 4. First Degree Sexual Assault

- fifteen to twenty-five (15 to 25) years to run consecutive; and 

### 5. 

### Aiding and Abetting First Degree Sexual Assault

- fifteen to twenty-rive (15 to 25) 

### years to run cons.ecutive
..· (ld. 

### 2.) The Department ofCorrectiQns website 

### indicates that Petitioner's next parole hearing is scheduled for January 11,2059. Petitioner 

### filed a direct appeal to the Supreme Court ofAppeals in November 1989, wh:ich the Supreme CauI"! declined to hear by 

### Order dated January 9, 1990. The Circuit Court appointed 

### Howard G. Higgins, Jr., as counsel far Petitioner's first petition for habeas corpus. Petitioner filed his first l1abeas 

### petition on Aprill0, 1992: 

### under Civil 

### Action No. 

### 90-C-361.



### 3, I



### ..**~"'"** .'. 

### which listed 23 grounds forJrelief. The Court denied the petition by Order entered February 20, 1997. Petitioner, pro .'Ie, 

### filed a second petition for writ ofhabeas corpus on December 15, 1993. The Court appointed Attorney James F. Sigwart II to represent Petitioner on the second habeas petition. This habeas petition alleged constitutional,violations stemming from the testimony ofState Police Serologist Fred Zain in the underlying trial, due to the presumed taint ofhis testimony 

### in accordance with the West Virginia**Supr~me** 

### Court's opinion in 

### In the lvfcztter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division ("Zain 

### l"), 190 W. Va. 321, 438 S.E.2d 501 (1993). The Zain habeas petition was denied by Order·entered November 29, 1995. Both the order deriying the first habeas petition andthe order denying the Zain habeas petition were appealed by Attorney Lawrence Fraley III on January 7, 1998. The Supreme Court refused to hear both petitiDllS by Orders dated June 4, 1998, and July 15. 1998. Petitioner filed a third Petition for Writ ofHabeas Corpus on March 20,2002, under Civil Action No. 02-C-42. The Court appointed the Preston County Public Defender Corporation as counsel forthe third habeas petition. After the appointment ofthe Preston COlmty PDC, Petitioner filed a Supplemental Petition for Writ ofHabeas Corpus on August 4, 2003. On February 21,2006, Attorney Sally Colliris ofthe Preston County PDC filed an Amended Petition for a Writ ofHabeas Corpus,with a 

### Losh v..McKenzie Checklist. The Comt dismissed the petitiDn by Opinion Letter filed July 20, 2006, with the sole exception of Petitioner's c1aim.ofineffective assistance ofprior.habeas couns'el. (Opinion Letter at 12, July 20,2006.) In the July 20, 2006 Opinion Letter, the Court found that all ofthe serology

### andJ~r

4·:"" lain issues were previously and finally adjudicated 

### in Judge Halbrittcr's August 24, 1995, Opinion stemming from the second (Zain) habeas petition. 

### (ld. at 7.) 

### An Omnibus Hearing was conducted on May 11, 2007, and again on May 31, 2007. The Court took the matter under advisement, and subsequently 

### ruled that lain habeas 

### cO)Jnsel Sigwart was deiicient under the first prong of

### Strickland v. 

### Washington,466 U.S. 668 (1984), and that Petitioner was entitled to the 

### raw data from the crime lab, independent review of

### that data, and DNA testing. (Order Granting Relieffor Writ ofHabeas Corpus Following Omnibus Hearing and Setting Status Hearing at 4, Nov. 15,2007.) The Court denied Petitioner's request 

### fQr release 

### from imprisonment "pending 

### the results ofreview 

### ofdata and DNA testing and a
new Zain hearing.,: 

### (ld) Petitioner filed a Notice ofIntent to Appeal onDecember 17,**2007~** 

### in which Petitioner stated•. <I[T]he Order granting partial reliefthat was entered November 15,2007, did not grant relief

### in regard to the**Petitioner~s** 

### other grounds andfor ineffective assistance ofcounsel 

### in the first habeas 

### tiled under**90-C-361.~'** (Notice ofIntent to Appeal at 2, Dec. 17,2007.) There is
no evidence 

### in the record that Petitioner followed through with his intention to appeal the ruling ofthe 

### Court. During the pendency ofthe review of

### data and DNAtesting, I Petitioner filed, pro se> a

, , fourth petition for 

### writ ofhabeas corpus on November 5,2007. 

### In the

### pro se petition, Petitioner

1The testing was never done. Petitioner's counsel, Sally Collins, stated at the October 15,2010 omnibus hearing: Your Honor, I wasjust checking with my client. I do recall at the last status hearing or scheduling conference you asked me about that or, no, I think it was a phone conference, and I

.had told you that I had 'not gone ahead with the DNA testing and you had suggested that perhaps I should withdraw the motion. I am at this time withdrawing the motion. 1wanted to make sure that my client ,Vas prcsent and agreed with thatbecause that is giving up a right that we fought very hard for. (Hr'gTr. 13,Oct. 15,2010.) 5alleges 

### that he 

### is actually 

### innocent because he was c,?nvicted ofaiding and abetting an offense that was later detennined (in Elwood Johnson's trial) to have not occurred. (Nov. 5,2007 Pet. 

### for Writ ofHabeas Corpus 19-21.) 

### He does not allege that Howard 

### Higgins was ineffective 

### for not raising the issue 

### in the 

### first habeas petition. 

### By order entered November 9, 2007, the 

### Court consolidated the fourth petition 

### with the 

### third petition in Cases 

### No. 02-C-42 and 07-C-256. 

### An omnibus hearing was 

### conducted on October 15,2010, 

### in which most ofthe testimony involved the usc off-red Zain's trial testimony. However, Petitioner's attorney Sally Collins stated that there were loose ends relating to the ineffective assistance offIrst habeas 

### counsel Howard Higgins: MS. COLLINS: I have one other issue 

### ifI might address**~hat** now. 

### In the May 11

### th and 31st, 2007, hearings, thaihearing was on ineffective ass.istance ofcounsel ofprior habeas counsel. There were two prior habeas 

### counsel. The one Sigwart, Tim Sigwart, for 

### the Zain, and Howard Higgins, who was habeas counsel for the fIrst habeas filed in 1990.­

,,'
... &" •• 

### On findings of

### fact and conclusions oflaw

### that were submitted

### backthere about halfof

### the points in the petitioner's proposed findings offact and conclusions oflaw had to do with testimony and evidence that Howard Higgins

.had rendered ineffective assistance ofcounsel. And I have really read the opinion letter very carefully and also the order, and I, ofcourse, did the orderdirectly from the opinion letter, and I don't see where the court ever ruled one way or the other on the issue .ofwhether Howard Higgins was ineffective as counsel 

### in the 1990 original·habeas petition. So I'm asking, I'mnot submitting any new evidence on that at all, but 

### if the court is going to do a comprehensive orderthat would sort oftie up loose ends so that this
... THE COURT: The court's intent was that 

### it only ruled 

### with respect to Attorney Sigwart, found Attorney Sigwart was 

### inef.fective. MS. COLLINS: Okay. Ijust needed 

### a clarification on that. Ijustlooked and there was nothing specific onthat. 

### (Hr'g Tr. 52-53, Oct. 

### 15,2010.)


### 6 ...... ' After the Supreme Court remanded this case to the Circuit Court for findings offact and 

### conclusions 

### onaw on 

### the claim ofineJfective 

### assistance offlrst habeas counsel Higgins) Petitioner, through counsel Melissa Giggenbach, filed a Motion for 

### New Hearing to Submit Additional Evidence Following Partial Remand and New Case Law on December 17,2012. Petitioner Johnson filed 

### apro se Motion to Reduce Sentence on January 7, 2013. This Court set
a hearing on both motions for January 25,2013. This Courtheld an evidentiary hearing on May 

### 17,2013. STANDARD 

### OF REVIEW West Virginia Code 

### § 53-4A-l (1967) provides for post-conviction habeas corpus relief for "[a]ny**per~on ~onvicted**  ofa crime and incarcerated under sentence ofimprisonment therefor who contends that there

# was such a denial or infringement ofhls rights as to render the conviction or sentence void**und~rthe** Constitution ofthe United States or the Constitution of tins State, or both
....**~'** \V. Va. Code 

### Ann. § 53-4A-l

### (a) (Lexisl'!exis 2008). The contentions and the grounds in fact or lawmust "have notbeenpreviously and finally adjudicated or waived in the proceedings which resulted \n the conviction and 

### sentence, or 

### in a proceeding or proceedings on a priorpetition or petitions under the provisions ofthis article, or in 

### any other proceeding orproceedings whichthe petitioner has institutedto secure relieffrom such conviction or sentence." 

### Id. The Supreme Court ofAppeals has held that West Virginia Code 

### § 53-4A-l 

### etseq.; "contemplates that every person convicted ofa crime shall have a 

### fair trial in the circuit court,
an opportunity to apply for an appeal to this Court, and one omnibus post-conviction habeas corpus hearing atwhich he may raise any collateral issues which have not previously been 

### ful1y and fairly litigated." Lash v. lvfcKenzie, 166 W. Va. 762, 764,277 S.E.2d 606: 609 (1981)
. . , ..:0.

7After the petitioner has been afforded an omnibus habeas corpus hearing, "subsequent habeas corpus petitions 

### will be summarily denied unless they**addre~s o~e**  ofthe narrow exceptions." 166 W. Va. at 768,277 S.E.2d at 611. Among those narrow exceptions is "ineffective. assistance ofcounsel at the omnibus habeas corpus hearing[.J" 

### ld. The law

### in West Virginia regarding ineffective assistance ofcounsel requires the application ofthe**two~pronged** test as announced by the Supreme Court ofthe United States in 

### Strickland v. 

### Washington, 466 U.S. 668 (1984) and by the State Supreme Court 

### in State v.

. 

### . 

### Miller, 194 W. Va 3, 15,459 S.E.2d 114,126 (1995). 

### Stricklandrequires the defendant to prove two things: (1) Counsel's performance 

### was deficient under an objective standard ofreasonableness; and (2) <'there 

### is a reasonable probability that, but for counsel's unprofessional errors, 

### the result of the proceedings wouldhave been different." When assessing whether 

### counsel's perfonnance was deficient, [a court] 4'must indulge a strong presumption that counsel's conduct falls within the wide range ofreasonable professional assistance[.J" 

### To. demonstrate prejudice, 

### a defendant mustpI;"ove there 

### is a ureasonable probability" that, abserit the errors, thej"Qry would have reached a different result. 

### State v . . 

### Miller, 194 W. Va. 3, 15,459 S.E.2d 114, 126 (1995) (internal citations emitted). The }.liller Court, 

### by Justice Cleckley, cautioned courts fromjudging counsel's performance through hindsight, 194 W. Va. at 17,459 S.E.2d at 128, and instead ask "whether a reasonable la\vyer would have acted, under the circumstances, as [habeas] counsel acted in the case at issue." 194 \V. Va. at 16, 459 S.E.2d at 127
.. Finally, Rule 9(c) ofthe Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia states: The Court shall draft a comprehensive order including: 

### (l) findings as 

### to. whether a state and/or federal rightwas presented 

### in each ground raised in the· petition; (2) findings offact and conclusions oflaw addressing each ground raised in the petition; (3) specific findings as to whether the petitioner was advised concerning his obligation to raise all grounds for post conviction reliefin


### 8one proceeding; and (4) ifthe petitioner appeared pro se, specific findings as to whether the petitioner kno\vingly and intelligently waived 

### his 

### right to counsel. 

### OPINION Although Petitioner has tiled

### pro se petitions for writs ofhabeas corpus, he has been represented by counsel at each stage in these proceedings. Therefore, at the outset, it is not necessary to determine whether he knowingly and intelligently waived his right to counsel. 

### Further, Petitioner 

### has been advised concerning his obligation to raise all grounds for postconviction reliefin one proceeding. On Jlme 10, 2002, the Court entered an Order Appointing Counsel, in which the Public Defender Corporation was appointed to representPetitioner in Civil Action No. 02-C-42. On February 21", 2006, a Checklist ofGrounds for Post Conviction Habeas Corpus Relicfwas entered into the court**t1l~,** which indicates that Petitioner JoMson signed that he was advised 

### by his attorney that he should raise each and every ground which he felt may entitle him to habeas corpus relief. Further, Petitioner'**~** counsel, Sally Collins, signed the checklist indicating she had eXf!.ID.ined the records, interviewed the P.etitioner, and Petitioner 

### desired to raise none 

### ofthe grounds which 

### he had initialed. Petitioner 

### al1cges the following grounds which he believes entitles 

### him. to habeas corpus reliefresulting from the alleged ineffective assistance ofJU'st habeas counsel Howard Higgins: 2 

### A. Issues with Grand Jury 

### Procedures 

### "All prior counsel failed to properly raise the issues ofchallenges to the grandjury procedures." (Am. Pet. at 12, Civil Action No.**02~C-42.)** Petitioner alleges that his indictment is void due to the prejudicial effect on the grandjury ofthe introduction of**Zain~s** test results through Officer Stiles. (ld.) 

### Petitioner also alleges that 

### Officer Stiles's testimony 

### was

2 Petitioner's use ofthc phrase "all prior counsel," "all counsel subsequent to his trial counsel," and "habeas counsel'l necessarily includes his first habeas counsel Higgins. Therefore, this Order addresses these claims even though several regard "Z

# a in" issues which have all been finally adjudicated on the merits. 

### 9'"**~~:'** . •·.···"100:.
..... C
...**~_** ' ••".<.; intentionally fraudulent. 

### (Jd. 12-13.) Petitioner further**al~eges** that no 

### evidence was introduced to the 

### grandjury supporting 

### a charge offirst degree sexual assault, i.e. that 

### a weapon was used
or that the victim was 11 years old or less. 

### (ld. at 13.) To the extent that Petitioner alleges ineffective assistance ofcounsel based on the use of Zain's test results by the prosecutor or Officer Stiles, the Court denies the petition because all Zain issues were resolved in the ZainHabeas and further denied 

### in the Court's Opinion 

### Letter dated December 10, 2010 (which was affirmed by the Supreme Court ofAppeals ofWest Virginia by Memorandum Decision; Nov. 20, 2012). Petitioner alleges that no evidence was introduced that a weapon was l.1Sed or that the victim was less than 11 years ofage, therefore the evidence did not support the charge offirst degree sexual assault. First, the first degree sexual assault statute 

### in 1988 also included as an element that the "infliction ofbodily injury upon anyone" could raise the crime tothat offirst degree sex.ual assault. 

### See W. Va. Code § 61-8B-3(a)(i) (1984) (current version at W. Va. Code 

### § 61-8B-3 (2006)). Second, "[g]enerally**speak:ing~** the finding by the grand

### jury that the evidence is sufficient is not subject tojudicial 

### review." State v.Adams, 193 W. Va, 

### 277,284, 456 S.E.2d 4, 11 (1995) (quoting I Franklin D. Cleckley, 

### Handbook on West Virginia Criminal Procedure Grand Jury and Indictments 1-651 (2d ed. 1993). "[A] defendant may not challenge
a facially valid indictment returned by a legally constituted grandjury on the basis that the evidence presented to the grandjury was legally insufficient." 

### State v. Adams, 193 W. Va. at 

### 284, 456 S.E.2d at 11. The'Court finds that first habeas counsel Higgin.s was not ineffective underthe iirst prong of

### Strickland and 

### Miller because Higgins performance was not deficient under an objective standard ofreasonableness. 

### See jy'/iller, 194 W. Va. 3, 15,459 S.E.2d 114, 126

10i.
(1995). Counsel's performance cannot be considered deficient 

### because the indictment was not reviewable in the first instance for sufficiency 

### ofthe evidence 

### in the 

### grand

### jury proceeding. B. Petitioner 

### has not proven by a preponderance ofthe evidence 

### that habeas counsel 

### Higgins was ineffective for not 

### raising that trial counsel was not 

### prepared to**cross~** examine 

### the St.ate's expert witnesses. Petitioner alleges that 

### a[sJubsequcnt counsel in the Habeas and appeals" failed to raise the issue that trial 

### oounsel was not prepared to cross-examine the State's expert witnesses from the State Police Laboratory. Petitioner alleges that scientific evidence was avruluble to refute the reliability ofhair comparison analysis. and trial counsel did notmove for approval ofexpert consultation or expert testimony ofhis 

### own 

### in regard to the scienti.fic 

### test results. (Am. Pet. at 13.) Petitioner has presented no evidence to substantiate his assertion that scientific**ev~dence** was available. "One who charges on appeal 

### that his 

## triaJ counsel was 

### ineffective and 

### that such resulted in 

### his conviction(] mustprove the allegation by a preppnderance ofthe e·vidence." Syl. pt. 

### 2, Carrico v. 

### Griffith, 

### 165 ·W. Va. 

### 812,272 S.E.2d 235 (1980); 

### syl. pt. 22, 

### State v. 

### Thomas, 157 W.Va. 

### 64D. 203 S.E.2d 445 (1974). Because Petitioner

### has presented no evidence to this Court 

### beyond a bald conclusion that there was scientific evidence available, he has failed to prove this allegation by a preponderance ofthe 

### evjdence. C. 

### Habeas counsel 

### Higgins was not 

### ineffective for failing to raise the issue that Petitioner Johnson 

### was convicted ofaiding and abetting criminal acts 

### for which his brother, 

### the principal, was later acquitted.
. Petitioner Johnson alleges that 

### "all counsel subsequentto his trial counsel failed to recognize and raise the issue that his convictions as aider and abettor to first degree sexual



### . .

assault were voided 'because
... the principal actorO was acquitted ofthe

## 0 charges offirst degree sexual assault." 

### (Am. Pet. at 13.) On January 7, 2013, the Petitioner also filed a

### pro se


### 11 

## ttMotion to Reduce Sentence pursuant to Rule 35(b) ofthe West Virginia Rules ofCriminal Procedure. The

### pro se Motion was filed within 120 days ofthe mandate ofthe \Vest Virginia Supreme Court affilming in part 

### this Court's denial ofhabeas reliefbut remanding the case for findings offact and conclusions oflaw on first habeas counsel Howard Higgins. Procedurally,
a Rule 35(b) motion to reduce a sentencemay only be used to reduce a sentence within 120 days after the sentence is imposed orprobation invoked, or within 120 days

### ~fter the entry ofa mandate 

### by the supreme court ofappeals upon affinnance ofajudgment ofa convktion orprobation revocation or the entry of an order

### by the supreme court ofappeals dismissirig

# or rejecting a petition for appeal ofajudgment ofa conviction or probation revocation. \V. Va. 

### R. Crim; P. 35(b). This Court cannot consider a reduction ofsentence after an unsuccessfi,U habeas corpus petition
.. 

### "Apetitioner is not entitled to application ofRule 

### 35(b) base? upon an underlying unsuccessful attempt to obtain habeas corpus relief." 

### Barritt v. 

### Painter, 215 W. Va. 120, 123,595 S.E.2d 62,65 (2004) (per curiam) (finding 

### thatthe 1996 modification ofRule 35(b) eliminated its use after a denial ofhabeas corpus relief). Although this Court fmds that Rule. 35(b) does not affordPetitionerreliefin this situation, the Court considers the underlying assertions regarding Petitioner's convictions as

. 

### . aider and abettor because he has asserted that first habeas counsel Higgins was ineffective for failing to raise this ground. The

## C~urt**co~cludes** that

## thi~ particular legal issue has

## be~n fully adjudicated on the merits in a priorpetition and therefore is barred by 

### tes 

### judicata as detailed in 

### Lash v. lYfcKenzi! 

### 166 W. Va. 762, 277 S.E.2d 606 (1981). Ajudgment denying reliefin post-conviction habeas corpus is resjudicata on questiom 

### offact or law which have been fully and 11nally litigated and decided
.... " Syl. pt. 2, 

### Losh v. lvJcKenzie, 

### 166 W. Va 

### 762, 277 S.E.2d 606 (1981). In Petitioner's first post-conviction habcz


### 12·' I I


### corpus proceeding, Civil ActionNo.**90~C-361,** he questioned his conviction for aiding and

. , u abetting kidnapping for which his brother, the principal, was 

### subsequently acquitted. Judge 

### Halbritter issued a 

### written opinion detailing the legal reason why Petitioner's assertion fails as a matter 

### oflaw. West Virginia 

### Code §·61-2-14c 

### provides that 

### 'if any 

### person in any way knowingly 

### aid or abet any other person in the commission ofany offense described
... 

### § 61-2-14a
... ofthis article, either as accessory before or 

### an accessory after the fact, such person so aiding**~d** abetting**sh~l1** be 

### guilty as princip?i.

### i,n the commission ofsuch offense**~d** sb?ill be pup,ished 

### in the same manner and to the same extent as**i~** provided in said sections for the person who committed the olTense.' The statute does not reqUire that the principal be convicted before the aider and abettor can be convicted.
. (Feb. 20, 1997 Opinion in CivilAction No. 90-C-361, at 22.) 

### Although Judge Halbritter decided this particular legal issue as it regards to kidnapping, the same reasoning pertains to Pctitir;mer's present argument that he cannot be an aider and abettorto first degree sexual assault when. the principal is later acquitted. 

### An aider and abettor is a principal in the second degree, see State v.**H[[rper~** 179 W. Va. 24,29, 365 S.E.2d 69, 74 (1987), and as such is punishable as 

### ifhe was a principal in the first degree. W. Va. Code §**61~11-6** (LexisNexis 2010). In orderto sustain a conviction for aiding and abetting the p'rincipal offense, the prosecution must prove ;"that there [was] a crime committed and a 

### principal in thefirst degree, and it must be shown that the person for whom [the] accused was acting was connected with the offense." 

### State v. 

### Lola Mae C, 185 W. Va. 452,458,408 S.E.2d 31, 37 (1991). In Lola Mae 

# c., the defendant was**indicted~** tried. and convicted oftwo counts offust degree sexual assault. 185 \V. Va., at 455, 408 S.E.2d at 34. Important to the issue this Court 

### must decide, the defendant inLola Mae C. was indicted and tried separately fromthe principal., 185 W. Va. at 37, 

### n.] 2, 408**~.E.2d** at 37,11.12. 

### The defendant appealed her conviction on the 13· '.**..,'~.;,**

.....,. f,'1'ound that the "state violated the purpose ofhaving the father and stepmother separately indicted and tried 

### by placing into evidence matters relating to the father's guilt, in particular 

### 14 to 

### 15 prior sexual assaults
.... " 

### 185 W. Va. at 453,408 S.E.2d at 32. The Court held that as part ofthe state's case-in-chief, "the state bore the obligation to prove that the defendanfs husband did**inde~d** commit the sexual assault on the victim on the occasion involving the defendant in ·order to prove that the defendant aided and abetted him." 185 W. Va. at 458, 408S.E.2d at 37. Thus the issue was "whether evidence of such collateral acts 

### by the father would have been admissible to prove 

### his guilt on the occasion involving the defendant." 

### Ie.!. The Court tinds 

### Lola Mae C. instructive. The state, in orderto secure a conviction for aiding and abetting> must prove that the principal did indeed commit the crime. However, as 

### Lola .!vfae C. shows, the state inust do so at the trial ofthe principal 

### in the second degree. 

### ObviouslY1 a principal in the 

### first degree cannot be convicted 

### in a trial 

### in 

### which he or she is 

### not
a defendant. The state carriesthe burden ofproving at the aider and abettor's trial that the principal 

### in the fIrst 

### degree committed 

### the act. The State**carri.~d** its burden in Petitioner's 

### trial ofprovIng that his brother committed the crime offITst degree sexual assault as a principal in the first deblTee. Any subsequent acquittal ofthe principal 

### in the .fIrst degree 

### in his owntrial has
no bearing on the aider and abettor's conviction. Petitioner. in 

### hispro se Petition for Writ ofHabeas Corpus 

### in Civil Action No. 07-C256, cites 

### Shuttlesworth v. 

### City of Birmingham. 373 U.S. 262 (1963),Jor the proposition that "[iJt is generally recognized that there can be no conviction for'aiding and abetting someone to do an innocent act." (Nov. 5,2007 Pet. in Civil Action No. 07-C-2S6, at 20.) Petitioner also cites 

### United

### States v. Prince" 430 F.2d 1254 (4th Cir. 1970),

### f~r the proposition that where the



### 14,i r'

.' • •• 00 

### acquittal ofthe principle established the act constituting the offense was not committed, then the conviction ofthe aider and abettor to that crime must be set aside. (Nov. 5, 2007 Pet. at 20.) A close reading ofShuttlesworth 

### shows it does not afford Petitioner relief. The convictions as aiders and abettors were overturned because the underlying acts were not in themselves criminal acts. The Court stated: Petitioners were convicted for inciting. aiding, and abetting a violation of the city trespass ordinance. The trespass 'violation' was that committed 

### by the petitioners 

### in Gober 

### v. City o/Birmingham, 

### 373 U.S. 374
.... 

### Since the convictions in Gober have been set aside, it follows that the present petitioners did not incite or aid and abet any crime, and that therefore their oyvn convictions 

### must be set aside. It

### is generally recognized that there can be no conviction for aiding 

### and abetting someone to do an innocent act. Shuttienvorth, 

### 373 U.S. 262, 265 (footnote omitted). In**Gobe~,** 

### the Court issued a very short written opinion: "The**judgmen~** 

### are reversed. 

### Peterson v. City ofGreenville, 373 U.S. 244, 83 S.Ct. 1119." 

### In

### Peterson v. City of Greenville, the Court found that a city ordinance requiring the**segr~gation** 

### ofAfrican-Americans and

. . 

### Caucasians at lunch counters and which was enforceable through.the state's criminal processes was a deprivation ofthe equal protection ofthe law as required by the Fourteenth Amendment to theDnited States Constitution. Peterson, 

### 373**U.S~·** 

### 244,248 (1963). There was no violation

.ofthe city 

### ordinance beca1.!se the city 

### ordinance was unconstitutional.

. The Court finds that this is materially distinguishable from Peti-qoner's case. Petitioner
was convicted as an aider and abettor ofa violation ofa state law prohibiting a person from employing a deadly weapon in

### the c0:rru:x?-ission ofsexual assault. 

### It is quintessential criminal conduct. A conviction for aiding and**ab~tting** 

### that criminal conduct 

### does not violate either the State Constitution or the Federal Constitution. 

### TIlejury fOWld at Petitioner'S trial that the State proved beyond a reasonable doubt that a crime was committed, Elwood Johnson committed it as 15l . 

## .. the. principal, and William 

### Mark Johnson aided and abetted 

### that crime. 

### Shuttlenvorth is not on point. Petitioner also cites UnitedSlates v. 

### Prince, 430 F.2d 1324 (4th 

### Cir. 1970) (per**curi~),** 

### for the proposition that an acquittal ofthe principal requires the conviction ofan aider and abettor to be set aside. (Nov. 5,2007 Pet. at 20.) In

### Prince, the Fourth Circuit vacated a conviction for aiding and 

### abetting the takjng ofa rail bird 

### from a 

### boat while a motor 

### was running in violation offederal law. Prince, 430 

### F.2d at 1325. While 

## rus appeal was pending, his companion, the alleged principal, was fOllild not guilty. Id. 

### The Fourth Circuit concluded that because there 

### were only two people 

### in the boat, the appellant 

### could not have aided and abetted 

### any other person, 

### therefore no crnne 

### 'vvas committed. ld. This Court finds 

### Prince unpersuasive. First, 

### Prince has been cited as a minority position and 

### has never 

### been cited

### by any court in the Fourth Circuit in 

### a published opinion. 

### The holding in 

### Prince was criticized in a well-reasoned opinion from 

### the Third Circuit, which represents the majority position and is in accord with the West Virginia 

### Supreme Court's reasoning in

### Lola

.Alae C. 

### In UnitedStates 

### v. Standefer, 610 F.2d 1076 (3 rd 

## Crr. 1979), the 'Th.ifd Circuit, sitting

en bane. 

### stated that although 

### [t]he superficial attractiveness of [the 

### Prince] approach is 

### readily apparent ... 

### we [do not] believe that this rype ofconundrum would be 

## ?ll that unusual 

### in cases where aiders and abettors 

### are tried separately from the principals that committed the 

### crime. It

### will 

### surely come as no surprise that in 

### many cases 

### the proofavailable 

### to the goyernrnent may vary depending on who 

### is being
.. prosecuted and when the prosecution .is brought. 

### Evidence inadmissible against one defendant may often be used against another. For example, differing defense strategies may 

### result in different rulings on admissibility under the Federal Rules ofEvidence or ... different witnesses and 

### different emphasis in testimony. Similarly, one defendant may 

### lack standing to challenge the admissibility 

### of evidence unconstitutionally obtained from a co-defendant, 

### and 

### therefore inadmissible against the co-defendant but admissible against 

### him. And ifthere is a substantial 

### time difference between 

### the trials ofthe defendants, a 

### key witness at 

### the first trial 

### may die or be missing at the time ofthe second trial) 

### or 16I' considerably shorter [sentence] creating an inequity ofsentences between codefendants." (Am. 

### Pet. at**13~14,** 

### Civil Action 

### No. 02-C-42.) 

### The Court finds that this 

### is not an actual 

### issue and therefore first habeas counsel Higgins was not ineffective for noi addressjng it. The statute prescribing the punishment ofprincipals in 

### the second degree at the time Petitioner was sentenced stated "[i]n the case ofevery felony, every principal 

### in the second degree
... shall be punishable as ifhe were the principal in the fIrst degree[.]" \V. Va. Code 

### § 61-11-6 ( 1923) (current version at

## w,. Va. Code 

### § 61-11-6 (2009)). The punishmentfor sexual



### . .' 

### . : assault 

### in the :first degree atthe time Petitioner was convicted ofaiding and abetting first degree sexual assault was imprisonment "in the penitentiary not 

### less than .fifteen nor more than twentyfive years, or 

### fined not more than ten 

### thousand dollars and imprisoned in the penitentiary not less than fifteen normore than twenty-five years." W. Va. Code § 61-8B-3 (1984) (current verSlon at \V. Va. Code 

### § 61-8B-3 (2006)). First habeas counsel Higgins was not ineffective for not raising this because there is no 

### merit to Petitioner's assertion 

### that he has received an inequitable sentence. The law

### in

### place at 

### the time ofPetitioner's convictions 

### clearly allowed 

### for his punishment by 

### consecutive flfteen to twenty-five year sentences for each conviction. Petitioner William Mark JohilSon was**senten~ed** 

### in a different court and ,by a differentjudge than Elwood Johnson. The sentencing' judgehad discretion to detennine the appropriate punishment. Accordingly, Petitioner's assertions are without merit and the Court denies the requested reliefon this ground. 

### E. Habeas counsel Higgins did address 

### the statements 

### made by prosecutor Hopkins. Petitioner alleges that "[aJppellate and habeas counsel failed to fully address the issues

, 1 ofthe prejudicial statements rq.ade by the trial proseyutor Hopkins in closing statements." (Am. Pet. at 14, Civil ActionNo. 02-C-42.) The Court flnds that first habeas 

### cOlmsel Higgins was not

18

# .'

.' -::-. inetIective because he did raise this ground in the first habeas proceeding and Judge Halbritter found 

### it was not supported by the record and without merit. (feb. 20, 1997 Opinion at 13, Civil Action 

### No, 90-C-361.) Judge Halbritter wrote that "[t]he petitioner also asserts 

### that defense counsel failed to object on many ofthe errors made 

### by the**Assist~t** Prosecuting Attorney during the opening and closing argumentto thejury. The record does not support this assertion, The Court fmds this assertion to be without merit." 

### (ld.) Therefore, this Court finds that habeas counsel Higgins did raise**th~s** ground and 

### it has been 

### fiilly and finally adjudicated onthe merits. The Court denies Petitioner reliefon this ground. 

### F. Habeas counsel Higgins was not ineffective for**fai~g** 

### to raise the ground that the same trial prosecutorwas presentwhen Lt. Zain testified differently at Elwo-od Johnson's**~~** ,**Th~** Court fmds that all Zain issues have been fully and 

### fInally adjudicated onthe merits and ajudgment was rendered denying relief: 

### In its August 23, 1995 Opinion, the Circuit Court ofPreston County found that ··the remaining evidence after disregarding the evidence ofZain
was sufficient to support the conviction. 

### The State's evidence 

### inthis case was very, very strong." (Aug. 23, 1995 Opinion at**5~** Civil ActionNo. 93 

### NC·405.) The Courtfmds thisjudgment was appealed to the Supreme Court ofAppeals ofWest Virginia, whichrefused to hear it 

### by Order dated July 15, 1998. On December 10,2010 (and· reissued for purposes ofappeal on January 7,2011), the Circuit Court ofPreston County issued
an Order Denying Petition for Habeas Corpus as 

### it pertained to all issues raisedunder

### Zain 1.

, (Dec. 10, 2010 Order Denying Pet. for Habeas Corpus at 14.) Assuming, 

### arguendo, that habeas

counsel Higgjns was ineffective for not raising the issue asserted by Petitioner, this Court would nevertheless flnd that he cannotprove 

### by a preponderance ofthe evidence that 

### it would have

19, J changed the outcome. 3 As this Court stated in the December 10, 2011 Order Denying Petition for Habeas Corpus, 

### it concurs 

### i.¥ith Judge ·Halbritter's finding that "Zain's testimony didnot 

### have a**pre~udicial** effect 

### on thejury. 

### The State's case

### was extremely.strong. l ' 

### (Id. 

### at 14-17.) G. Habeas counsel Higgins was not ineffective for failing to raise the issue ofthe Court's denial of a continuance. Petitioner asserts that first habeas counsel Higgins was ineffective because he did not address the Court's denial ofa continuance because his trial attorney was not preparedto go forward. (Am. Pet. at 17, Civil Action No. 02-C-42.) Petitioner asserts that the "denial ofthis continuance request 

### was extremely prejudicial 

### to the client[.]" 

### (ld.) In 

### Carrico v. 

### Griffith, the appellant appealed a circuit court's denial ofrelief

### inhabeas corpus. The appellant asserted, 

### inter alia, thathe**~&.s** denied a fair and impartial trial because the trial court erred in refusing a continuance. 

### Carrico v. 

### Griffith, 165 W. Va. 812,821,272 

### S.E.2d 235,240 (1980). The Supreme Court ofAppeals affmned thetrial court's denial of**habe~** reliefand stated that "[hJabeas corpus is not a substitute for appeal but ""'ill lie to test a denial ofa coilstitutional right. The matters relied upon are fair subjects for appeal, but not habeas corpus." 

### jd. The Court finds 

### Carrico v. Griffith directly on point. Here, Petitioner

### Johnson asserts that his first habeas counsel was ineffective 

### for failing to raise the trial court's denial ofa continuance. The Court finds that Petitioner's first habeas counsel is not ineffective because this issue was not appropriate for habeas corpus. Accordingly, the Court finds that Petitioner's assertion is 

### without merit.**--------------~.------** . J The Cowi is not making a finding that attorney Higgins was ineffective. 20, ,


### H. Petiti{)ner's assertion that Higgins was ineffective for failure 

### to raise 

### the issuethat trial 

### counsej failed 

### to convey all plea offers is 

### without merit. 

### On December 

### 17, 2012, Petitioner, through counsel, 

### tiled a Motion 

### for New Hearing to Submit Additional 

### Evidence Following Partial Remand and New Case Law: In that 

### Motion, Petitioner requested that he be allowed to present new evidence so the Court could determine whether the principles announced in iviissouri v. 

### Frye and Lafler v. Cooper were violated. The Court, after a hearing on December 

### 18,2012, granted

### the Motion and an evidentiary hearing
was held on 

### May 17,2013. Petitioner Johnson 

### appeared in person 

### and by 

### counsel Melissa Giggenbach. The Warden appeared by Preston County Prosecuting Attorney Melvin C. Snyder Ill. In 

### A1issouri v. Frye, the United States Supreme Courtheld that «as a general rule, defense 

### counsel has the duty to cOIIlI11unicate formal offers from 

### the prosecution to**ac~ept** 

### a plea 

### on terms 

### and conditions 

### that may be favorable to the accused." 

### 132 S.Ct. 1399, 

### 1408 (2012). Counsel's 

### failure to convey 

### a plea offer to a defendant "d[oes] 

### not render 

### the effective 

### assistance the Constitution requires." 

### ld.

. . Flye 

### simply extends a protection under 

### the Sixth 

### Amendment of

### the 

### COIfstitution ofthe United States what Article III, 

### § 

### 14 ofthe Constitution ofthe State of West Virginia already provides. Objective professional standards dictate that a criminal defense attorney, absent extenuating circumstances, must communicate to the defendant any and all plea bargain offers made by the prosecution. The failure ofdefense counsel to communicate any and all plea bargain proposals to 

### the defendant constitutes 

### ineffective assistance ofcounsel, absent extenuating circumstances. 

### Syl. pt. 3, 

### Becton v. Hun, 205 W. Va. 139,516 S.E.2d 

### 762 (1999). The requirement that defense counsel convey all plea offers to the accused to 

### render effective assistan.ce has been the law in West Virginia for over a decade before the United States Supreme Court decided 

### Frye. 21,; 

### . 

### In Lafler 

### v. Cooper, the United States Supreme Court held the following:

: '. Ifa plea bargain has been afTered, a defendant has the right to effective assistance ofcounsel in considering whether to accept 

### it. Ifthat

### right is denied, prejudice can be shown ifloss ofthe plea opportunity led to a 

### trial resulting in a conviction on more serious charges or the imposition ofa mme severe sentence. 

### Lajler v. Cooper, 132 S.Ct. 1376, 1387 (2012). In 

### Lafler, the question presented to the Court
was not whether the advice given was ineffective. 

### Trial counsel in that case advised the defendant to not accept the plea offer because counsel believed the state could not prove the intent clement offirst degree murder because the defendant shotthe victim below thewaist. Both parties in the appeal to the Supreme Court concec;ied this advice was ineffective. 

### lei. at 1383. In Petitioner's case, this Court must decide whether habeas counsel Higgins was ineffective for failing to raise the issue thattrial counsel did not convey all proposed plea offers, and under 

### Lafler, whether trial counsel's advice rendered ineffective assistance ofcounsel. In the first instance regarding possible issues under

### Missouri v. 

### Frye and 

### Becton v. Hun, the Circuit Court ofPreston 

### COlmty found in Civil Action No. 90-C-361 that defense counsel informed the petitioner ofthe state's proposed plea offer and that defense counsel discussed with the petitioner that the state wouldhave a different view ofany possible plea offer ifthe victim was interviewed. After the discussion, thepetitioner told counsel to go ahead and interviewthe victim. (Feb. 20, 

### 1997 Opinion at 10, Civil Action No.**90~C-361.)** Accordingly, any assertion that

### trial counsel failed to convey this proposed plea offer,has been fully and finally adjudicated and is barred 

### by the principles of

### resjudicata.**R~garding** the second pleaoffer, Petitioner Johnson testified: "1 don't remember him 

### talking with me about 

### it. But, evidently he did, because I signed a Motion to Withdrawthat he had filed." (H!'g Tr. 35, May 17,2013.) Accordingly, Petitioner has not shown by a


### 22'. 

### , I I \"1 preponderance ofthe evidence that the plea offer was not conveyed. His testimony 

### dcmons1:rates that 

### he cannotremember. As 

### to the potential 

### Lafler issue, Petitioner must prove 

### the allegations 

### contained in his petition by a preponderance ofthe.evidence. At the May 17,2013 hearing 

### in which Petitioner
was 

### afforded the 

### opportunity to place new 

### evidence in the 

### record, trial 

### counsel David 

### Brown testified that he knew he 

### would have 

### discussed the flrst plea offer with Petitioner and that he left the 

### decision to Petitioner. 4 Trial counsel Brovvn speci1:ically stated, "I don't believe he 

### decided it the same 

### day. He let me Imow laterthat he wanted me to go ahead and proceed to interview the child."s (Hr'g Tr. 18, May 17,2013.) 

### TIus Courtfinds that Petitionerhas failed to meet

### his burden ofproving 

### by a preponderance 

## ofthe evidence that he received ineffective assistance ofcounsel 

### in considering**t}~·:}~·.** r;.::..**>.~:.'** whether to take either plea offer. He testified atthe May 17,2013 

### hearing that

### trial counsel told 

### him that 

### if he did not take the flrst plea offer, 

### then they were going to court 

### and he was going to get life and 300 years. (Hr'g Tr. 35, May 17,2013.) After going to trial and being convicted of 

### multiple charges, Petitioner Johnson received what is essentially a life sentence. Thus, Petitioner's ovm testimony reflects that trial counsel's advice was accurate. 

### Lafler does not afford Petitionerrelieffor advicebe received on the first plea offer. Petitioner has further failed to prove 

### by a preponderance ofthe evidence the advice he received regarding the second plea offer was 

### constitutionally ineffective. Petitioner testified he**~** Rule 1.2(a) ofthe West Virginia Rules ofProfessional Conduct places the decision ofwhether to accept a plea squarely with the client.
. j The first plea agreement required the Petitioner to plead guilty to one count of**s~cond-degree** sexual assault and was contingent upon Petitioner not interviewing the alleged victim. Trial counsel Brown testified that he believed tbat type ofplea c'ffer, which "essentially told us we shouldn't investigate further," was an unethical type ofplea bargain. (Hr'g Tr. 26, May 17,2013.) He filed a Motion to Withdraw as counsel because he "wanted to make sure itwas presef"ted on the reco!d for anyone who wanted to appeal it, in case he was convicted:
... " ([d.)**Becau~e** a defendant is not entitled to a plea offer as a matter ofright, see Missouriv. Frye, 132 S.Ct. 1399, 1410 (2012), this Court is not addressing the ethical questions raised by the plea offer. 23'. I I 

### could not remember the conveyance ofthe second 

### plea offer but it must have occurred. 

### Accordingly, Petitioner has failed to prove that the specific advice was ine±l'ective. 

### La:fler does not afford Petitioner relieffor advice he received on the second plea offer. CONCLUSION 

### For the reasons detailed in this Order, the Court does hereby ORDER

### that the 

### reliefrequested by Petitioner in

### his petitions for writ 

### ofhabeas 

### corpus is denied. It 

### is further ORDERED that the Clerk 

### ofthe Court 

### personally deliver or deliver via first-class mail


### a 

### certified copy ofthis Orderto Prosecuting Attorney Melvin C. Snyde:t; III; to Melissa Giggenbach, counsel for Petitioner; and to Petitioner \Villiarn Mark Johnson.
ENTER this 

# 7 day ofAugust, 2013.

,..**~** ;";':'=' :,.:

.....:' 

### Lawrance S. iJIer, Jr., JUDGE


### ENTERED this 

# L day ofAugust. 

### 2013.
Betsy 

### C!istle\ CLERK ; .... ,' .-; 1/-'-11 , ,/f.;ULl 

## ?4£
...-J/!..'.;? .'(( ::./. 

# /il:;.u

# e;t­

. " ."', v'

A. THUE COPY:



### 24