### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

William J., 

### FILED
Petitioner Below, Petitioner 

### May 18, 2018

EDYTHE NASH GAISER, CLERK vs) No. 17-0230 (Preston County 17-C-05) SUPREME COURT OF APPEALS

OF WEST VIRGINIA Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner William J., 1 pro se, appeals the February 21, 2017, order of the Ci rcuit Court of Preston County dismissing his petition for writ of habeas corpus. Responde nt Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, by counsel Gordon L. Mowen, II, filed a summary response in support of the circuit court’s order. 2 Petitioner filed a reply.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

At approximately 3:00 a.m. on January 11, 1988, petitioner and his brother took his brother’s twelve-year-old sister-in-law from her ho me to a remote locatio n in Preston County and sexually assaulted her. Once the brothers returned the victim to her residence, she immediately informed her stepfather and identified petitioner a nd his brother as the perpetrators. The victim’s stepfather reported the crimes to the police and took the victim to the hospital. The doctor who examined the victim found many bruises and lacera tions which were consistent with the victim’s

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W.Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L. , 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L. , 183 W.Va. 641, 398 S.E.2d 123 (1990).

2 The warden at Mt. Olive Correctional Comple x has changed and the acting warden now is Ralph Terry. The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure.

1account of kidnapping and sexual assault. The doctor further found trauma to the victim’s vagina
and anus and detected three recent tears to her hymen. Both the victim and the doctor testified at petitioner’s trial.

Petitioner was convicted of one count of kidnapping, one count of aiding and abetting first-degree sexual abuse, three c ounts of aiding and ab etting first-degree sexual assault, and one count of first-degree sexual assault. The circuit court sentenced petitione r to a life term of incarceration, with the possibility of parole, plus an additional sixty-one to 105 years of incarceration. Petitioner sought revi ew of his convictions before this Court which refused his appeal on January 9, 1990.

Since the refusal of his criminal appeal, petiti oner has filed five petiti ons for writ of habeas corpus. In his first petition, petitioner set forth twenty-three grounds for ha beas relief. However, following this Court’s decision in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division (“ Zain I ”), 190 W.Va. 321, 438 S.E.2d 501 (1993), petitioner initiated a Zain habeas proceeding by filing an application in this Court. This Court granted the application and remanded the Zain habeas case to the circuit court for further proceedings.

The circuit court denied the Zain habeas petition first. In an August 24, 1995, opinion letter, the circuit court found that , while discredited serologist Fred Zain performed tests on various items of physical evidence in petitioner’s case, Mr. Zain’s testimony “was not critical to
the State’s case.” The circuit court found that th e evidence was sufficient to sustain petitioner’s
convictions without Mr. Zain’s te stimony and that his testimony did not have any prej udicial effect on the jury given that “[t]he State’s case was extremely strong.” 3 First, the victim knew petitioner

3 In syllabus point 2 of Zain I , this Court held that, “[a]lt hough 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 e ffect 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 an d a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant’s guilt be yond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evid ence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudic ial 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).

(Continued . . .)

2and identified him at trial. Second, the facts proving force and sexual contact “were shown by the victim, her family (describing the immediate repo rting), and the doctor.” Accordingly, the circuit
court denied the Zain habeas petition by order entered November 29, 1995.

The circuit court denied petitioner’s non- Zain habeas petition on February 26, 1997. Following the denial of relief in the first two habeas cases, petitioner filed his third and fourth petitions claiming that separate attorneys were ineffective in each of the prior proceedings. The
circuit court denied the third and fourth habeas petitions on December 10, 2010. Petitioner appealed the December 10, 2010, order in [William J.] v. Ballard (“ William J. I ”), No. 11-0209, 2012 WL 5869967 (W.Va. November 19, 2012) (memor andum decision). On appeal, this Court
affirmed the circuit court’s determination th at the issues previously raised in the Zain petition and
the non- Zain petition “were barred by the doctrine of res judicata or have been waived.” Id. at *1. However, because the circuit court inadvertently failed to make findings regarding petitioner’s
claim that his at torney in his non- Zain proceeding (“non- Zain counsel”) was ineff ective, this Court
remanded the case so that such findings could be made. Id. at *2. In an August 7, 2013, order, the circuit court determined that petitioner’s non- Zain counsel did not provide ineffective assistance. Accordingly, this Court affirmed the August 7, 2013, denial of habeas relief in [William J.] v.
Ballard (“ William J. II ”), No. 12-1006 (no Westlaw citation av ailable) (W.Va. September 19, 2014) (memorandum decision).

Petitioner filed a fifth habeas petition on January 5, 2017. In this petition, petitioner conceded that he was raising i ssues previously found to have b een barred by the doctrine of res judicata. However, petitioner re-r aised the barred claims, arguing th at the circuit court failed to fully adjudicate his claim that the attorney in the Zain habeas proceeding (“ Zain counsel”) provided ineffective assistance. Petitioner argued that he could file a succe ssive habeas petition based on newly discovered evidence and a favorable change in the la w that could be retroactively applied to his case. By order entered February 21, 2017, the circuit court rejected petitioner’s arguments and found that “the grounds raised by [p]etitioner are all Zain issues and have been fully and finally litigated and decided in prior habeas corpus hearings.” Accordingly, the circuit court dismissed the petition.

Petitioner appealed the circ uit court’s February 21, 2017, di smissal order and, on March 31, 2017, filed a motion for appointme nt of appellate counsel. By order entered April 5, 2017, this Court ruled that petitioner’s motion would be c onsidered with the merits of his appeal.

We apply the following standard of review in habeas appeals:

“In reviewing challenges to the findings and conclusi ons of the circuit court in a habeas corpus action, we apply a thre e-prong standard of review. We review the final order and the ultimate dispositi on under an abuse of discretion standard; the underlying factual findings under a clearly erroneous st andard; and qu estions of

Id.

3law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard , 237 W.Va. 411, 787 S.E.2d 864 (2016). In syllabus point 4 of Losh v.
McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981), we held:

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.

On appeal, petitioner argues that the circuit co urt erred in finding that the instant petition is barred by the doctrine of res judica ta. Respondent counters that the di smissal of the petition should be affirmed. We agree with respondent.

Petitioner contends that he may pursue a su ccessive habeas peti tion because, in a November 15, 2007, order, the circuit cour t found that the performance of his Zain counsel was deficient “in failing to review raw data from the crime lab, failing to submit the data for independent review, and failing DNA testing.” However, the circuit court remedied any prejudice that petitioner suffered as a result of Zain counsel’s deficient perfor mance by granting permission for post-conviction DNA testing. We find that the ci rcuit court’s ruling wa s in accordance with syllabus point 5 of State v. Miller , 194 W.Va. 3, 459 S.E.2d 114 (1995), in which we held:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington

, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors , the result of the proceedings would have been different.[ 4 ]

Given that the DNA testing was never carried ou t, petitioner contends that the circuit court failed to fully adjudicate his claim that Zain counsel was ineffective. We find that the record belies this contention. In its February 21, 2017, order, di smissing the instant habeas petition, the circuit court noted that there were “numerous delays” in arranging the testing. Moreover, petitioner acknowledges that his case was included in the AS CLD report that was part of the investigation in

Zain I

. 5 See 190 W.Va. at 333, 438 S.E.2d at 513 (noting th at, like the ASCLD report, a 1992 audit found improprieties “in every case . . . in which [Mr.] Zain had b een involved”). Consequently, at

4 The second prong of the Strickland/Miller standard is often refe rred to as the prejudice

prong. See State v. Hutton , 235 W.Va. 724, 739, 776 S.E.2d 621, 636 (2015).

5 ASCLD is the abbreviation of the American Society of Crime Laboratory Directors.

4a October 15, 2010, hearing, petitioner withdrew his request for DNA testing and his attorney introduced the relevant pa ge of the ASCLD report into evidence. Therefore, we conclude that the
claim that Zain counsel was deficient in failing to have appropriate tests perf ormed was previously and finally adjudicated or waived and does not come under the firs t exception of syllabus point 4
of Losh to permit a successive petition. 6

With regard to the second exception of syllabus point 4 of Losh , petitioner argues that (1) the State suppressed the existence of a 1985 intern al West Virginia State Police investigation regarding Mr. Zain’s competence as a serologist; and (2) that he discovere d only in December of 2016 that there was an evidentiary basis for clai ming that Mr. Zain’s testimony regarding hair comparison analysis was unreliable. We note that petitioner did not need an evidentiary basis to challenge Mr. Zain’s testimony because we found a ll testimony by Mr. Zain unreliable as a matter
of law in Zain I. See 190 W.Va. at 326, 438 S.E.2d at 506. Also, in making this finding, we adopted the recommendations of Judge Holliday who discu ssed the 1985 internal st ate police investigation in his report, attached as an appendix to our Zain I decision. Id. at 328-41, 438 S.E.2d at 508-21. Furthermore, we find that petitioner previously rais ed both of these claims in his fourth habeas petition filed on November 5, 2007. 7 Though petitioner contends that he never received a substantive ruling on either claim, in William J. I , we rejected his argumen t that the circuit court erred in denying his fourth habeas petition based on the doctrine of res judicata. 2012 WL 5869967, at *1. Our decision in William J. I constituted a final decision on the merits pursuant to Rule 21(a) of the West Virginia Rules of Appellate Procedure. See In Re: T.O. , 238 W.Va. 455, 464, 796 S.E.2d 564, 573 (2017) (finding that a memorandum decision is an adjudication on the merits); State v. McKinley , 234 W.Va. 143, 151, 764 S.E.2d 303, 311 (2014) (same). Therefore, based on our review of the record, we conclude that these claims were previously and finally adjudicated and are not based on any newly discovered evidence.

Finally, we concur with the circuit court’s finding that “the grounds raised by [p]etitioner
are all Zain issues and have been fully and finally lit igated and decided in prior habeas corpus hearings.” We note that a petitioner is not entitled to “at tack upon attack, and habeas corpus upon habeas corpus. ” Call v. McKenzie , 159 W.Va. 191, 194, 220 S.E.2d 665, 669 (1975); see White v.

Haines , 215 W.Va. 698, 705 n.9, 601 S.E.2d 18, 25 n.9 ( 2004) (affirming denial of prisoner’s second habeas petition, finding that it “is difficu lt to muster any sound reasoning for giving [him] another bite at the apple”). Therefore, we conclude that the circuit court did not abuse its discretion

6 Petitioner argues that this claim also comes unde r the third exception of syllabus point 4 of
Losh because we recently reiterated in Chambers v. Ballard , No. 14-0020, 2014 WL 1686823, at *2 (W.Va. April 28, 2014) (memorandum decision) , that “[f]actually-suppor ted allegations of
ineffective assistance of habeas c ounsel constitute an exception” to the doctrine of res judicata. However, we find that our statement in Chambers is not a favorable change in the law that may be applied retroactively because it is simply a re statement of the holding of syllabus point 4 of Losh

. See Id. (citing 166 W.Va. at 762-63, 277 S.E.2d at 608).

7 We take judicial notice of petitioner’s fourth habeas petition filed in Case No. 07-C-256.

5in dismissing the instant habeas petition.

For the foregoing reasons, we affirm th e circuit court’s Fe bruary 21, 2017, order dismissing the instant petition for writ of habeas corpus. 8

Affirmed.

ISSUED : May 18, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

8 Given our affirmation of the circuit court’s dismissal of the petition, we deny petitioner’s motion for appointment of appellate counsel.

6