### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Charles T., January 11, 2016 Petitioner Below, Petitioner

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 15-0300 (Mercer County 13-C-175-DS) OF WEST VIRGINIA

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



### MEMORANDUM DECISION

Petitioner Charles T., by counsel Paul R. Cassell, appeals the Circuit Court of Mercer County’s March 4, 2015, order denying his petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition on the ground of newly discovered evidence.

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.

Petitioner was indicted during the October of 2003 term of the grand jury on twenty counts of sexual offenses involving his stepdaughter, T.H. The charged crimes included seven counts of first-degree sexual assault, ten counts of sexual abuse by a custodian, and three counts of third-degree sexual assault.

Following petitioner’s trial in September of 2004, the jury returned a verdict of guilty on all counts, with the exception of count thirteen, which was dismissed by the circuit court during the trial. Petitioner was sentenced on December 6, 2004, to serve an indeterminate term of fifteen to thirty-five years for each count of first-degree sexual assault, ten to twenty years on each count of sexual abuse by a custodian, and one to five years for each count of third-degree sexual assault. The sentences on some of the counts were ordered to run concurrently with others; some were to run consecutively. In terms of actual service of time, petitioner must serve a sentence of twenty-six to sixty years in the penitentiary before he is eligible for parole. This Court denied petitioner’s direct appeal on September 6, 2006.

Petitioner filed his first petition for a writ of habeas corpus on May 8, 2009, in which he raised the following grounds: (1) ineffective assistance of counsel; (2) denial of fair trial and due process of law; (3) complaints over the testimony from an expert witness; and (4) such other

1grounds as may be assigned upon the hearing. After counsel was appointed, petitioner filed a second petition for a writ of habeas corpus on November 6, 2009. The grounds in that petition were (1) petitioner was denied his rights to a trial by jury and his right to due process of law by a state legal framework that permits conviction without proof of the act; (2) certain expert opinions did not pass muster pursuant to Daubert v. Merrell Dow Pharmaceuticals , 509 US 579 (1993); and (3) counsel for petitioner was ineffective. The circuit court held two omnibus hearings and ultimately denied petitioner’s request for habeas relief. Petitioner thereafter appealed that denial. In June of 2012, this Court denied petitioner’s appeal in the written decision of State ex rel.

Charles T. v. Ballard , 229 W.Va. 263, 728 S.E.2d 147 (2012). Further, according to petitioner, his request for federal habeas corpus relief was denied in April of 2013.

Thereafter, in May of 2013, petitioner filed a pro se petition in the circuit court seeking habeas relief on the ground of newly discovered evidence. The circuit court appointed counsel for petitioner and thereafter held a hearing on February 14, 2014. During the hearing, the circuit court heard testimony from petitioner’s daughter, A.T., and petitioner. According to A.T.’s testimony, after petitioner’s prior omnibus hearing, she informed his counsel that petitioner’s victim, T.H., made numerous sexual advances toward her during the time period of petitioner’s crimes against T.H. Further, A.T. testified that an older male neighbor tried to touch her inappropriately, and that it was possible the victim, T.H., may have been to this male neighbor’s home. On cross-examination, A.T. stated that she first told petitioner’s mother about these events two years prior because she thought it would help petitioner. She further stated that she reported these facts to the State Police after telling petitioner’s mother. Ultimately, the circuit court issued an order denying petitioner relief. It is from this 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 to this Court, petitioner alleges that he was entitled to habeas relief because of newly discovered evidence in the form of his daughter’s testimony regarding his victim’s alleged sexual conduct toward her and the fact that the adult neighbor may have had an opportunity to sexually abuse the victim. The Court, however, does not agree.

Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on this alleged error, which was also argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignments of error

2raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignment of error raised herein and direct the Clerk to attach a copy of the circuit court’s March 4, 2015, “Order Denying The Petitioner’s Petition For Writ Of Habeas Corpus Ad Subjiciendum And Removing It From The Court’s

Active Docket” to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 11, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum

Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II

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