### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

John S., Petitioner Below,

Petitioner 

### FILED

vs) No. 14-1184 (Fayette County l4-C-193) September 11, 2015

RORY L. PERRY II, CLERK
David Ballard, Warden, Mount Olive SUPREME COURT OF APPEALS

OF WEST VIRGINIA Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner John S., 1 pro se , appeals the order of the Circuit Court of Fayette County, entered November 12, 2014, denying his petition for a writ of habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Laura Young, filed a response.

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 June of 2010, petitioner resided with his future wife, 2 his ten-year-old son from a previous relationship, and his wife’s nine-year-old niece, N.L., over whom his wife had guardianship. Petitioner was accused of sexually molesting N.L. beginning within weeks of him moving into his wife’s home.

On January 9, 2013, petitioner was indicted on nine counts of sexual assault in the first degree pursuant to West Virginia Code § 61-8B-3 based on alleged acts occurring from June of 2010 through February of 2011; and nine counts of sexual abuse by a parent, guardian, custodian or person in a position of trust pursuant to West Virginia Code § 61-8D-5. Following a jury trial in May of 2013, petitioner was found guilty on all counts. The circuit court thereafter denied petitioner’s post-trial motions and sentenced him to an aggregate term of ninety-five to three hundred and forty years of incarceration.

1 Consistent with our practice in cases involving sensitive facts, we use only petitioner’s first name and last initial, and identify the minor victim only by her initials. See State ex rel. W.Va. Dept. of Human Services v. Cheryl M. , 177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987).

2 Petitioner and his wife married in November of 2010.

1Petitioner appealed his convictions, which this Court affirmed in State v. John S. , No. 13-0780, 2014 WL 2682873 (W.Va. Supreme Court, June 13, 2014) (memorandum decision). In his criminal appeal, petitioner made the following assignments of error: (1) petitioner’s convictions were supported by insufficient evidence; (2) the child victim’s testimony was not credible; (3) the West Virginia Rules of Evidence were violated by the circuit court admitting hearsay evidence, including the child victim’s letter to her guardian and her written interview answers; and (4) petitioner’s trial was unfair because the circuit court failed to disqualify a juror,

who was his ex-wife’s cousin. Id. , at *2-5.

Petitioner filed a petition for a writ of habeas corpus on July 15, 2014. On August 20, 2014, petitioner filed a motion to disqualify Judge John W. Hatcher, Jr. from presiding over his habeas case. Judge Hatcher subsequently transmitted the motion to this Court for a ruling. By an administrative order, entered on September 22, 2014, the Chief Justice denied petitioner’s motion for disqualification, and directed Judge Hatcher to continue to preside over this case.

In his habeas petition, petitioner raised the following grounds for relief: (1) ineffective assistance of counsel; (2) double jeopardy; (3) insufficient evidence; (4) disproportionate sentence; (5) erroneous admission of hearsay evidence; (6) improper comments by prosecutor; (7) cumulative error; and (8) actual innocence. 3 On November 12, 2014, the circuit court entered a twenty-nine page order rejecting petitioner’s grounds and denying his habeas petition.

Petitioner now appeals the circuit court’s denial of his habeas petition. We apply the following standard of review in habeas cases:

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, 418, 633 S.E.2d 771, 772 (2006).

On appeal, petitioner seeks this Court’s ruling that the circuit court judge who presided over petitioner’s criminal case may not preside over his habeas proceeding. Petitioner’s proposed rule is contrary to longstanding and well-reasoned West Virginia precedent. See State ex rel.

Watson v. Hill , 200 W.Va. 201, 204, 488 S.E.2d 476, 479 (1997) (trial judge is sufficiently familiar with underlying proceedings to determine most habeas issues without hearing). Accordingly, we decline petitioner’s invitation to alter or extend existing law.

Second, petitioner argues that the circuit court erred in denying his petition without appointment of counsel and an evidentiary hearing. Petitioner contends that the circuit court’s order cannot be deemed comprehensive when the court did not allow for the factual development

3 On appeal, petitioner appears to contradict his actual innocence claim by stating that his habeas case “is not about whether he is guilty or innocent” of sexually molesting N.L.

2of petitioner’s claims. Petitioner alleges this is especially true of the ineffective assistance of counsel claim, which this Court has often stated must be litigated in a collateral proceeding. See
Losh v. McKenzie , 166 W.Va. 762, 766-67, 277 S.E.2d 606, 610 (1981). Respondent counters that all of petitioner’s claims are either meritless, not cognizable in habeas corpus, previously rejected by this Court in John S. , and/or now waived because petitioner could have raised those issues in

John S. , but did not do so. Accordingly, respondent urges this Court to adopt the circuit court’s well-reasoned findings and conclusions explaining why petitioner’s petition lacked merit.

We note that the circuit court may deny a petition without a hearing or appointment of counsel “if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court’s satisfaction that the petitioner is entitled to no relief.” Syl. Pt. 1, Perdue v. Coiner , 156 W.Va. 467, 194 S.E.2d 657, 658 (1973). Also, “[a] habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed.” Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 130, 254 S.E.2d 805, 806 (1979), cert. denied, 464 U.S. 831 (1983). Finally, issues which were adjudicated or waived in a prior proceeding may be summarily denied pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings. See Losh , 166 W.Va. at 767, 277 S.E.2d at 610 (pertinent question is whether habeas petitioner either knew or could diligently have known of issues that he could have had adjudicated in prior proceeding). Therefore, based on our review of the record before us, we find that the circuit court did not abuse its discretion in denying petitioner’s habeas petition for reasons stated in the court’s November 12, 2014, order.

We have reviewed the circuit court’s November 12, 2014, order, and hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions. 4 The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.



### ISSUED: September 11, 2015



### CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II

4 Certain names have been redacted. See fn. 1, supra

. 3