STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Troy G., FILED 

Petitioner Below, Petitioner January 14, 2013 

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.’s1 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 Ballard2

, 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. 

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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). 

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. 

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Lastly, 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. 

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ISSUED: 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 

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