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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Herman Catlett,

Petitioner Below, Petitioner

vs.) No. 19-0179 (Berkeley County 17-C-55)

Donnie Ames, Superintendent, Mt. Olive

Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Herman Catlett, by counsel Nicholas J. Matzureff, appeals the January 31, 2019,

order of the Circuit Court of Berkeley County denying his seventh amended petition for a writ of 

habeas corpus. Respondent, Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by 

counsel Shannon Frederick Kiser, filed a response in support of the habeas court’s decision. On 

appeal, petitioner argues that the habeas court erred in denying habeas corpus relief because 

petitioner received ineffective assistance of counsel and was denied the opportunity to elaborate 

on his ineffective assistance of counsel claims at an omnibus evidentiary hearing. 

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 order of the circuit court is appropriate under Rule 21 of 

the Rules of Appellate Procedure.

The body of Charles Arvin (“the victim”) was found in his vehicle on July 1, 1984. The 

victim’s vehicle was seen two nights before, parked at the residence of petitioner and his thengirlfriend, Penny Stanley. The body was covered in household trash that included an envelope 

addressed to petitioner and several articles with Ms. Stanley’s fingerprints. Petitioner and Ms. 

Stanley were subsequently arrested and charged with the victim’s murder. Petitioner was released 

on bond while Ms. Stanley remained incarcerated. However, Ms. Stanley later pled guilty to being 

an accessory after-the-fact to the victim’s murder and agreed to testify at petitioner’s trial.

Ms. Stanley testified at petitioner’s trial as follows: (1) the victim came to petitioner’s and 

Ms. Stanley’s residence on June 29, 1984; (2) Ms. Stanley went onto the front porch while 

petitioner and the victim talked; and (3) Ms. Stanley saw the victim dead on the floor when 

FILED

April 23, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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petitioner called her into the kitchen. Ms. Stanley further testified that she saw a club in the sink 

with water running over it to ostensibly wash blood off it.

1 Finally, Ms. Stanley testified that the 

victim often sold drugs to petitioner and that petitioner recovered twenty Valium pills and 

approximately $900 in cash from the victim after murdering him. Ms. Stanley admitted that she 

helped petitioner put plastic bags over the body and drag it to the victim’s vehicle. Petitioner then 

drove the vehicle away with the victim’s body in it. Subsequently, petitioner was convicted of 

first-degree murder and was sentenced to a life term in prison without the possibility of parole. 

This Court affirmed petitioner’s conviction in State v. Catlett, 180 W.Va. 447, 376 S.E.2d 834

(1988).

Since his murder conviction, petitioner has filed a total of seven petitions for habeas corpus

relief in the circuit court and two additional habeas petitions in federal court. In his previous habeas

court habeas corpus proceedings, petitioner was afforded two omnibus hearings, one in 1991 and 

one in 1998. Petitioner filed his seventh and most recent petition for a writ of habeas corpus on 

June 29, 2018. He argued before the habeas court that his 2002 habeas counsel was ineffective for 

failing to raise a Brady2 violation regarding the nondisclosure of a letter from the FBI to one 

Lieutenant Kenneth Blake. In that letter, the FBI notified Lieutenant Blake that Fred Zain, who 

performed forensic work on petitioner’s criminal case, had previously failed two FBI forensic 

courses. Petitioner further argued that his prior habeas counsel was ineffective for failing to have 

further DNA testing performed on the State’s evidence and for failing to assert due process 

violations with regard to the testimony of Sergeant W. Randy Smith, who testified regarding hairs 

discovered at the crime scene.

On January 31, 2019, the habeas court denied petitioner’s petition for a writ of habeas 

corpus. It found that all of the allegations raised by petitioner had previously been finally 

adjudicated or waived. It also found that petitioner has had three prior full post-conviction habeas 

proceedings with appointed counsel and hearings before the habeas court. Syllabus Point 4 of Losh 

v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981) provides that 

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.

166 W. Va. at 762-63, 277 S.E.2d at 608.

1

Several days before petitioner’s trial, the alleged murder weapon, a tree branch, was 

discovered in the basement of petitioner and Ms. Stanley’s residence. The State had the branch 

analyzed and found no traces of latent fingerprints, blood, or hair.

2

Brady v. Maryland, 373 U.S. 83 (1963) (requiring the State to preserve and produce 

exculpatory evidence in criminal proceedings).
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The habeas court also determined that even if the merits of petitioner’s arguments had been

considered, he would not have been entitled to habeas corpus relief. Although petitioner’s 2002 

habeas counsel did not specifically raise a Brady violation regarding the testimony of Mr. Zain, 

the main focus of that proceeding was the evidence used at trial in light of In re West Virginia

State Police Crime Lab, Serology Division, 190 W. Va. 321, 438 S.E.2d 501 (1993) (herein 

referred to as Zain I).

3 The habeas court found that although Mr. Zain testified in petitioner’s trial, 

his testimony largely concerned chain of custody. While Mr. Zain performed an analysis of the 

murder weapon, he found no blood, hair, or tissue on the weapon. As such, the habeas court found 

that Mr. Zain’s testimony was not prejudicial to petitioner’s case, and his 2002 habeas counsel was 

not ineffective for allegedly failing to raise a Brady claim regarding the nondisclosure of the FBI 

letter. The habeas court further determined that prior habeas counsel was not ineffective for failing 

to order further DNA testing of the evidence. The habeas court found that this allegation was 

previously adjudicated or waived. It noted that petitioner admitted to killing the victim under oath 

on multiple occasions. The habeas court also found that if further DNA testing had been performed, 

it would have just further incriminated petitioner. Habeas counsel was therefore not ineffective for 

failing to have the evidence independently tested. The habeas court also determined that prior 

habeas counsel was not ineffective for failing to raise due process violations regarding Sergeant 

Smith’s testimony. Sergeant Smith testified that hairs found on a blanket wrapped around the 

victim’s body matched Ms. Stanley’s hair in length, color, texture, and pigmentation. The habeas

court found that Sergeant Smith did not testify that the hair belonged to Ms. Stanley, merely that 

it matched in appearance as no hair evidence was introduced at petitioner’s trial. The habeas court 

also found that it was unclear if petitioner even had standing to challenge Sergeant Smith’s

testimony. It is from the habeas court’s January 31, 2019, order that petitioner appeals. 

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). 

On appeal, petitioner raises two assignments of error. First, petitioner contends that the 

habeas court erred in denying habeas corpus relief on the basis of ineffective assistance of counsel. 

He argues, as referenced above, that his previous habeas counsel was ineffective for failing to 

assert a Brady violation in regard to the State’s evidence of Mr. Zain’s incompetence and 

falsification of evidence in prior cases. He also argues that prior habeas counsel was ineffective in 

3

In Zain I, it was discovered that Mr. Zain, former director of the Division of Public Safety 

serology department, falsified forensic evidence in several criminal cases. See In re W. Va. State 

Police Crime Lab, Serology Div., 190 W. Va. 321, 438 S.E.2d 501 (1993).
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failing to obtain independent DNA testing of the evidence, failing to obtain the raw data and 

specific testing procedures Mr. Zain used, and failing to assert a due process violation regarding 

Sergeant Smith’s trial testimony. We disagree.

Claims of ineffective assistance of counsel are governed by the two-prong test set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), which states that, in order to prevail on a 

claim of ineffective assistance of counsel, petitioner must show that “(1) [c]ounsel’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, in relevant part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). 

Furthermore, 

[i]n reviewing counsel’s performance, courts must apply an objective standard and 

determine whether, in light of all the circumstances, the identified acts or omissions 

were outside the broad range of professionally competent assistance while at the 

same time refraining from engaging in hindsight or second-guessing of trial 

counsel’s strategic decisions. Thus, a reviewing court asks whether a reasonable 

lawyer would have acted, under the circumstances, as defense counsel acted in the 

case at issue.

Id. at 6, 459 S.E.2d at 117. This Court “always . . . presume[s] strongly that counsel’s performance 

was reasonable and adequate[,]” and 

[t]he test of ineffectiveness has little or nothing to do with what the best lawyers 

would have done. Nor is the test even what most good lawyers would have done. 

We only ask whether a reasonable lawyer would have acted, under the 

circumstances, as defense counsel acted in the case at issue. We are not interested 

in grading lawyers’ performances; we are interested in whether the adversarial 

process at the time, in fact, worked adequately. 

Id. at 16, 459 S.E.2d at 127 (emphasis in original). Certainly, with the benefit of hindsight, “one 

always may identify shortcomings, but perfection is not the standard for ineffective assistance of 

counsel.” Id. at 17, 459 S.E.2d at 128.

Here, petitioner fails to satisfy the first prong of Strickland/Miller. He asserts that prior 

habeas counsel was ineffective for failing to raise a Brady violation regarding the FBI letter about 

Mr. Zain. In syllabus point 2 of Zain I, this Court held that, “[a]lthough it is a violation of due 

process for the State to convict a defendant based on false evidence, such conviction will not be 

set aside unless it is shown that the false evidence had a material effect on the jury verdict.” 190 

W.Va. at 322, 438 S.E.2d at 502. In syllabus point 3 of Zain I, this Court further held:

“Where improper evidence of a non[-]constitutional nature is introduced by 

the State in a criminal trial, the test to determine if the error is harmless is: (1) the 

inadmissible evidence must be removed from the State’s case and a determination 

made as to whether the remaining evidence is sufficient to convince impartial minds 

of the defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is 

found to be insufficient, the error is not harmless; (3) if the remaining evidence is 
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sufficient to support the conviction, an analysis must then be made to determine 

whether the error had any prejudicial effect on the jury.” Syllabus Point 2, State v. 

Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 

1081, 63 L.Ed.2d 320 (1980).

Mr. Zain’s involvement in petitioner’s case was considered in his 2002 habeas proceeding

wherein it was determined that Mr. Zain’s testimony was not prejudicial to petitioner’s case. Mr. 

Zain testified regarding chain of custody and asserted that he found no blood, tissue, or DNA on 

the murder weapon. Therefore, prior habeas counsel was not ineffective for failing to obtain 

evidence discrediting Mr. Zain’s testimony. Further, even when Mr. Zain’s testimony is removed 

from the case, there was still sufficient evidence to sustain petitioner’s conviction for first-degree 

murder. The murder weapon was found in the basement of the residence in which petitioner

resided. The victim’s body was discovered covered in trash, which contained a letter addressed to 

petitioner, and the fingerprints of Ms. Stanley were discovered on several items. Ms. Stanley later 

pled guilty to being an accessory after the fact and testified at petitioner’s trial that he killed the 

victim with a tree branch. Further, petitioner admitted several times under oath at his second habeas 

proceeding that he killed the victim. We therefore find that prior habeas counsel was not ineffective 

for failing to raise a Brady violation. 

Likewise, prior habeas counsel was not ineffective for failing to obtain independent DNA 

testing of the murder weapon or for failing to assert a due process violation regarding Sergeant 

Smith’s trial testimony. Mr. Zain testified at trial that there was no DNA evidence found on the 

murder weapon. More importantly, petitioner confessed to the murder under oath. We further find 

that prior habeas counsel committed no error in failing to challenge the grand jury testimony of 

Sergeant Smith. Sergeant Smith testified that hairs matching the texture, pigmentation, length, and 

color of Ms. Stanley’s were found on the blanket in which the victim’s body was wrapped. 

Sergeant Smith did not testify that the hairs were a direct match for Ms. Stanley. Most importantly, 

there was no hair evidence introduced at petitioner’s trial and therefore no need for prior habeas 

counsel to challenge the testimony. 

Petitioner’s second assignment of error is that the habeas court erred in denying him the 

opportunity to expand upon his ineffective assistance of counsel claim during an omnibus 

evidentiary hearing. He asserts that the habeas court arbitrarily overlooked prior habeas counsel’s 

ineffectiveness and the errors at his trial in denying him an omnibus hearing. 

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

“‘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).
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Here, based on our review of both the record and our decision in Anstey, we find no error 

in the habeas court’s decision not to hold an omnibus hearing. 

For the foregoing reasons, we affirm the habeas court’s January 31, 2019, denial of 

petitioner’s petition for a writ of habeas corpus.

Affirmed.

ISSUED: April 23, 2020

CONCURRED IN BY:

Justice Margaret L. Workman 

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

DISQUALIFIED:

Chief Justice Tim Armstead