1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Steven Lee Mahood, 

Petitioner Below, Petitioner

vs.) No. 19-0230 (Jackson County 18-C-83)

Donnie Ames, Superintendent,

Mt. Olive Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Steven Lee Mahood, self-represented, appeals the February 19, 2019, order of 

the Circuit Court of Jackson County summarily dismissing his second petition for a writ of habeas 

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

Holly M. Flanigan, filed a summary response in support of the circuit court’s order. 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 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.

In April of 2009, a Jackson County grand jury indicted petitioner on the charge of firstdegree murder of his wife. Following a four-day trial, the jury convicted petitioner of first-degree 

murder without a recommendation of mercy. Thereafter, the circuit court sentenced petitioner to a 

life term of incarceration without the possibility of parole. Petitioner filed a direct appeal, and this 

Court affirmed petitioner’s conviction. See State v. Mahood (“Mahood I”), 227 W. Va. 258, 708 

S.E.2d 322 (2010). On December 29, 2010, petitioner filed his first petition for a writ of habeas 

corpus in the circuit court. Petitioner was denied habeas corpus relief, and this Court affirmed that 

denial in 2015. See Mahood v. Ballard (“Mahood II”), No. 14-0026, 2015 WL 1244343 (W. Va. 

Mar. 16, 2015) (memorandum decision).

FILED

June3, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

On September 28, 2018, petitioner, pro se, filed a second habeas petition in the circuit 

court, reiterating his claims from Mahood II and arguing that habeas counsel was ineffective in

not adequately raising the claims of prejudicial pretrial publicity and diminished mental capacity. 

By order entered on February 19, 2019, the circuit court rejected petitioner’s argument that habeas 

counsel provided ineffective assistance in Mahood II. Given the first habeas proceeding in Mahood 

II, the circuit court further found that the doctrine of res judicata precluded petitioner from 

asserting “all matters [previously] raised and as to all matters known or with reasonable diligence 

could have been known.” Accordingly, the circuit court summarily dismissed petitioner’s second 

habeas petition. 

Petitioner now appeals the circuit court’s February 19, 2019, order. This Court reviews 

appeals from 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.” Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 

417, 633 S.E.2d 771 (2006).

Syl. Pt. 1 of Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). However, because we 

have before us the dismissal of petitioner’s second habeas petition, we first consider the application 

of Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981):

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.

Petitioner argues that the doctrine of res judicata does not apply to this case by alleging 

that he was not advised of his obligation under Losh to raise all applicable habeas grounds in the 

omnibus proceeding or have them deemed waived. Petitioner points to the absence of a Losh list 

in Mahood II. As we explained in Mahood II, “[t]he checklist of grounds typically used in habeas 

corpus proceedings, commonly known as ‘the Losh list,’ originates from [our decision in Losh]” 

2015 WL 1244343, at *1 n.2. We find that the absence of a Losh list cannot be attributed to the 

circuit court as, prior to the September 10, 2013, omnibus hearing in Mahood II, the court “granted 

petitioner an additional thirty days to file a final petition and a ‘Losh list’” in April of 2013. Id. at 

*1. Our decision in Mahood II further reflects that petitioner already knew to raise all applicable 

claims in the omnibus proceeding because, “[a]lthough still represented by counsel, petitioner, pro 

se, in February of 2013, filed a document titled ‘supplemental claims to be added to amended 

petition for writ of habeas corpus.’” Id. Therefore, we find that the circuit court did not err in 

finding that the doctrine of res judicata applies to this case.
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Petitioner further argues ineffective assistance of habeas counsel as an exception to the 

application of the doctrine of res judicata.1 Respondent counters that the two ineffective assistance 

claims asserted in the instant petition were previously raised by habeas counsel. We agree with 

respondent as our decision in Mahood II reflects that the claims of prejudicial pretrial publicity 

and diminished mental capacity were raised and adjudicated. Therefore, we find that the circuit 

court did not err in rejecting the two claims of ineffective assistance of habeas counsel asserted in 

the instant petition.2 Accordingly, we conclude that the circuit court did not abuse its discretion in 

summarily dismissing petitioner’s second habeas petition.

For the foregoing reasons, we affirm the circuit court’s February 19, 2019, order summarily 

dismissing petitioner’s second petition for a writ of habeas corpus. 

 

Affirmed.

ISSUED: June 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

DISQUALIFIED:

Justice John A. Hutchison

1

In Syllabus Point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), 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.

2

To the extent that petitioner alleges additional instances of ineffective assistance of habeas 

counsel on appeal, we decline to address those claims as they were not presented to the circuit 

court. See Watts v. Ballard, 238 W. Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (“This Court 

will not pass on a nonjurisdictional question which has not been decided by the trial court in the 

first instance.”) (quoting Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W. Va. 522, 102 S.E.2d 733 

(1958)).