                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



                                                                                   FILED
Barry W.,
Petitioner Below, Petitioner                                                  February 17, 2017
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) No. 16-0214 (Mercer County 16-C-32-DIV 3)                                      OF WEST VIRGINIA


David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Barry W.,1 pro se, appeals the February 17, 2016, order of the Circuit Court of
Ohio County denying his petition for a writ of habeas corpus. Respondent David Ballard, Warden,
Mount Olive Correctional Complex, by counsel Nic Dalton, filed a summary response, and
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.

       Petitioner was tried in a four-day jury trial, beginning December 7, 2001, at the conclusion
of which he was found guilty of thirty-one counts of first degree sexual assault and seventy-three
counts of sexual abuse by a custodian. 2 After his convictions, petitioner was sentenced to
indeterminate terms of fifteen to thirty-five years of incarceration on each of the thirty-one counts

       1
       Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
         The minor victims were ages ten, eight, six and four at the time of an August 1, 2001,
pretrial hearing, approximately two years after the alleged criminal conduct.
                                                 1
of first degree sexual assault and indeterminate terms of ten to twenty years of incarceration on
each of the seventy-three counts of sexual abuse by a custodian. Four of the fifteen to thirty-five
year counts and four of the ten to twenty year counts were ordered to run consecutively. Petitioner
appealed his convictions, which this Court refused on May 13, 2013.

         On November 30, 2005, petitioner filed a petition for writ of habeas corpus alleging seven
grounds for relief: (1) ineffective assistance of counsel relative to the testimony of play therapist
Phyllis Hasty and Dr. George Wallace, who examined at least two of the children; (2) a violation
of the right of confrontation relative to the testimony of Ms. Hasty and Dr. Wallace; (3) ineffective
assistance of counsel related to a portion of Ms. Hasty’s testimony; (4) ineffective assistance of
counsel related to defense counsel eliciting testimony regarding petitioner’s prior conviction for
manslaughter without a cautionary or limiting instruction; (5) ineffective assistance of counsel
related to defense counsel eliciting testimony regarding petitioner’s wife’s conduct with the
children, the termination of her parental rights, and failing to request a cautionary instruction;3 (6)
a violation of due process related to the use of jailhouse inmates; and (7) ineffective assistance of
counsel based on the failure to properly investigate or conduct discovery. That habeas petition
included a Losh checklist with a number of additional grounds checked.4 The circuit court denied
the petition on January 20, 2006, without holding a hearing. Petitioner appealed the circuit court’s
denial of habeas relief, which this Court refused on September 7, 2006.

        On September 13, 2007, petitioner filed a federal habeas petition in the United States
District Court for the Southern District of West Virginia. The parties agreed to stay petitioner’s
federal habeas action to allow petitioner to file an “addendum” to the habeas petition that was
denied by the circuit court on January 20, 2006. Petitioner filed his addendum in the circuit court
on July 13, 2010. The circuit court appointed habeas counsel to represent petitioner and permitted
discovery. Several depositions were taken, including that of petitioner’s expert, Dr. Bobby Miller.

        In addition to petitioner’s challenge to Ms. Hasty’s testimony, petitioner also claimed
misconduct by the assistant prosecutor, prejudice from how the indictment was explained to the
jury during the State’s opening statement, and faulty jury instructions. In its April 26, 2012, order
denying habeas relief, the circuit court rejected petitioner’s grounds for relief and further found
that petitioner made several challenges to the validity of the indictment during pretrial, including
the contention that it failed to give him adequate notice of the charges against him. The circuit
court further found that petitioner’s challenges to the indictment were unsuccessful and that, at the
close of the State’s case-in-chief, there was sufficient evidence to allow the numerous counts to go
to the jury, which found petitioner guilty beyond a reasonable doubt. Petitioner appealed the
circuit court’s April 26, 2012, order to this Court, which affirmed the denial of habeas relief in
Barry W. v. Ballard, No. 12-0795, at 4 (W.Va. Supreme Court, June 24, 2013) (memorandum
decision).


       3
           Petitioner was married to the minor victims’ mother. He was their step-father.
       4
           See Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).
                                                  2
        Petitioner filed the instant habeas petition and a motion for appointment of counsel on
February 3, 2016. He alleged that the following “sub-grounds” of the issues in his prior habeas
petition were neither sufficiently raised nor adequately discussed with him by his attorney during
those proceedings: (1) that Ms. Hasty’s testimony was improper; (2) that the jury instructions
failed to instruct the jury as to each essential element of the offenses charged in the indictment; (3)
that the assistant prosecutor confused the grand jury when she presented the case, which led to
invalid counts of the indictment; and (4) that the charges set forth in the indictment regarding the
victim, D.H., were invalid. By order entered February 17, 2016, the circuit court denied habeas
relief and petitioner’s motion for appointment of counsel, reasoning, as follows:

               Reviewing the factual summaries in support of the sub-grounds in the
       instant proceeding, the Court FINDS that the Petitioner previously raised these
       grounds in the prior proceedings, or which with reasonable diligence could have
       been known and raised; therefore, the Court CONCLUDES that all of the claims,
       as now asserted, are res judicata for purposes of any subsequent hearing.

        Petitioner now appeals the circuit court’s February 17, 2016, order denying his habeas
petition and motion for appointment of counsel. On March 1, 2016, petitioner filed a motion for
appointment of counsel with this Court. By scheduling order entered April 28, 2016, we deferred
ruling on that motion. We will now address petitioner’s motion for appointment of counsel
together with the merits and the circuit court’s denial of the earlier request for appointment of
counsel.

       We apply the following standard of review in habeas appeals:

               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). In syllabus point four of
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held, as follows:

               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: (1) ineffective assistance of counsel at the omnibus habeas corpus hearing
       ....

        On appeal, petitioner contends that the circuit court erred in declining to appoint counsel
and to hold a habeas hearing prior to its denial of the instant petition and motion for appointment of
counsel. Respondent counters that the circuit court correctly found that the petition was barred by
the doctrine of res judicata as set forth in syllabus point four of Losh. We agree with respondent
and find that the instant petition is an impermissible successive habeas petition.
                                                  3
        In so finding, we reject petitioner’s contention that his attorney in the prior habeas
proceeding was ineffective. We note that claims of ineffective assistance of counsel are governed
by the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995).

        Petitioner alleges that his habeas attorney neither sufficiently raised nor adequately
discussed with him the following sub-grounds of the issues advanced in the earlier proceeding: (1)
that Ms. Hasty’s testimony was improper; (2) that the jury instructions failed to instruct the jury as
to each essential element of the offenses charged in the indictment; (3) that the assistant prosecutor
confused the grand jury when she presented the case, which led to invalid counts of the indictment;
and (4) that the charges set forth in the indictment regarding the victim, D.H., were invalid. First,
we find that petitioner persistently sought to show that the circuit court erred in admitting Ms.
Hasty’s testimony at trial. To that end, in the prior habeas proceeding, an expert was retained to
“further undermine[ ] the trial testimony of the State’s expert play therapist.” Barry W., at 3. We
find that the denial of habeas relief in the previous proceeding, notwithstanding the retention of an
expert witness, fails to show that habeas counsel was ineffective.

        With regard to the jury instructions, we find that petitioner’s habeas attorney raised this
issue sufficiently enough that the circuit court felt compelled to review the record to check for
error. The circuit court found that “[f]rom the trial transcript, it appears . . . that . . . [p]etitioner’s
trial counsel and the State were able to agree on a number of instructions, and that the trial court
was more than amenable to permit other limiting instructions on [petitioner’s] behalf . . ., without
objection by the State.” Id. at 67.5 Accordingly, the circuit court concluded that petitioner “failed
to prove this claim” in a decision that we subsequently affirmed in Barry W. Id. at 5 and 67.

        We further find that misconduct by the assistant prosecutor and a confusing presentation of
the charges set forth in the indictment were also claims made in the prior habeas proceeding. In the
instant habeas petition, petitioner changed the focus of these arguments to allege that there was
misconduct in the way the assistant prosecutor presented the charges to the grand jury to such an
extent that an invalid indictment was returned as to the charges relating to D.H., one of the victims.
However, in the previous proceeding, the circuit court found that petitioner challenged the validity
of the indictment as far back as the pretrial stage of his criminal case. The circuit court further
found that petitioner’s challenges to the indictment were unsuccessful and that, at the close of the
State’s case-in-chief, there was sufficient evidence to allow the numerous counts to go to the jury,
which found petitioner guilty beyond a reasonable doubt. We find that these findings by the circuit
court demonstrate that the claims alleged in the instant petition were either raised or capable of
being raised in the prior habeas proceeding. Indeed, we find that the circuit court’s prior findings

        5
        In our memorandum decision in Barry W., we adopted and incorporated the circuit court’s
April 26, 2012, order denying petitioner’s prior habeas petition given its “well-reasoned findings
and conclusions.” Id. at 4.
                                                     4
adequately show that petitioners’ instant claims with regard to the indictment’s validity are
without merit and that he did not suffer any prejudice from the way the assistant prosecutor
presented the case to the grand jury. Therefore, we conclude that the circuit court did not abuse its
discretion in denying petitioner’s instant habeas petition.

         Finally, given that the circuit court properly denied petitioner’s habeas petition, we further
conclude that it did not err in denying the motion for appointment of counsel filed with his petition.
See Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (holding that court having
jurisdiction over habeas corpus proceedings may deny petition for writ of habeas corpus without
hearing and without 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”); see also W.Va. Code § 53-4A-3(a) (same). We deny the motion for
appointment of counsel filed in this Court for the same reason. See West Virginia Code §
53-4A-4(a) (providing that, with regard to appointment of appellate counsel, “[i]f it is determined
that . . . review is being sought or prosecuted in bad faith or the grounds assigned therefor are
without merit or are frivolous, the request . . . for the appointment of counsel shall be denied”).6

        For the foregoing reasons, we affirm the circuit court’s February 17, 2016, order denying
petitioner’s petition for a writ of habeas corpus and motion for appointment of counsel.


                                                                                            Affirmed.

ISSUED: February 17, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




       6
        Both West Virginia Code §§ 53-4A-3(a) and -4(a) constitute provisions of the West
Virginia Post-Conviction Habeas Corpus Act, West Virginia Code §§ 53-4A-1 through -11.
                                                  5
