### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Troy G., 

### FILED

January 14, 2013 Petitioner Below, Petitioner

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 11-0959 (Logan County 05-C-357 & 05-C-371) OF WEST VIRGINIA

David Ballard, Warden, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner G.’s 1 appeal, filed by counsel D. Adrian Hoosier II, arises from the Circuit Court of Logan County, wherein petitioner’s third petition for writ of habeas corpus was denied by order entered on May 12, 2011. Respondent Ballard 2 , by counsel C. Casey Forbes, filed a response, along with a supplemental appendix, in support of the circuit court’s decision.

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 is appropriate under Rule 21 of the Revised Rules of Appellate

Procedure.

In March of 1996, a jury found petitioner guilty of fifty-seven counts of various sexual offenses. At sentencing, the trial court ordered petitioner to serve forty to one hundred years in prison. Following sentencing, petitioner filed a direct appeal of his convictions, which this Court refused. Petitioner subsequently filed his first petition for writ of habeas corpus in 1997. Without an omnibus evidentiary hearing, the first habeas court denied petitioner’s petition. This Court refused the appeal. In 2000, petitioner filed his second petition for writ of habeas corpus in circuit court. After holding an omnibus evidentiary hearing, the second habeas court denied petitioner habeas corpus relief in its fifteen-page order. Petitioner filed his third petition for writ of habeas corpus in November of 2005. The third habeas court denied petitioner habeas corpus relief in its May of 2011 order, from which petitioner now appeals.

1 Because the victim in the underlying case is related to petitioner and was a minor at the time of the sexual offenses, we follow our traditional practice in cases involving sensitive facts and use only petitioner’s last initial. See State v. Edward Charles L. , 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

2 Pursuant to Rule 41(c) of the West Virginia Revised Rules of Appellate Procedure, we have replaced the respondent party’s name with Warden David Ballard. The initial respondent on appeal, Thomas McBride, is no longer the warden at Mount Olive Correctional Complex.

1This 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).

We also bear in mind the following:

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.

Syl. Pt. 4, Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981).

On appeal, petitioner argues that the third habeas court erred in failing to make findings of fact and conclusions of law concerning his allegation of ineffective habeas counsel from his first habeas petition. Respondent Ballard responds that the third habeas court found that petitioner’s arguments concerning ineffective habeas counsel were previously addressed by the circuit court in petitioner’s prior petitions for writ of habeas corpus. We agree and find no abuse of discretion or error by the third habeas court. A review of the record reflects that the second habeas court made findings and conclusions as to petitioner’s claim that he was denied effective assistance of habeas counsel for his first petition.

Petitioner also argues that the third habeas court erred in denying him habeas corpus relief by failing to make findings of fact concerning his contention that he was denied due process at the grand jury proceedings. Petitioner argues that the grand jury in his underlying criminal matter consisted of only fifteen members, rather than the requisite number of sixteen members. In response, Respondent Ballard argues that the instant habeas court did not err with regard to addressing this issue because it found that petitioner waived any issues he did not raise in his two previous habeas corpus petitions and further, this issue is not constitutional in nature and is not subject to review in a habeas proceeding. Nevertheless, respondent argues that even if this issue is reviewed, there was no error by the trial court because Rule 6(a) of the West Virginia Rules of Criminal Procedure explains that “[t]he grand jury shall consist of 16 members, but any fifteen or more members attending shall constitute a quorum.” Our review of the record reflects no error or abuse of discretion by the instant habeas court with regard to this

issue.

2Lastly, petitioner argues that the third habeas court erred in denying petitioner habeas corpus relief based on newly discovered evidence. In particular, petitioner argues that affidavits given by two witnesses contain information that would have dramatically changed the outcome of his trial by changing the number of counts for which he was convicted. Respondent Ballard responds that the habeas court made findings and conclusions that these affidavits contained material that was available to petitioner before or at the time of trial and do not constitute newly discovered evidence. Moreover, the Court has held as follows:

“‘A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that [defendant] was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.’ Syllabus Point 1, Halstead

v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).” Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

Syl. Pt. 3, In re Renewed Investigation of the State Police Crime Lab., Serology Div. , 219 W.Va. 408, 633 S.E.2d 762 (2006). Respondent argues that these affidavits do not satisfy all prongs of the five-part test, and therefore, even if they did constitute newly discovered evidence, a new trial would not be warranted. Our review of the record uncovers no error by the circuit court in denying habeas corpus relief to petitioner based on this argument. Having reviewed the circuit court’s “Order” entered on May 12, 2011, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. 3 The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

For the foregoing reasons, we affirm the circuit court’s decision denying habeas corpus relief.

Affirmed.

3 Consistent with our explanation in the first footnote of this memorandum decision, the parties’ names in the circuit court order have been redacted to leave only their initials.

3ISSUED: January 14, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II

4