                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Jonathan Lind,
Petitioner Below, Petitioner                                                        FILED
                                                                               November 15, 2019
vs) No. 18-0701 (Kanawha County 16-P-37 and 18-P-210)                            EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION
         Petitioner Jonathan Lind, pro se, appeals two orders of the Circuit Court of Kanawha
County. In the first order, entered July 23, 2018, the circuit court denied petitioner’s motion for
relief from judgment. In the second order, also entered July 23, 2018, the circuit court dismissed
petitioner’s fourth petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent,
Mt. Olive Correctional Complex, 1 by counsel Scott E. Johnson, filed a summary response in
support of the circuit court’s orders. 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 orders is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        On March 31, 2006, petitioner killed Edward Ayers in the victim’s home. Petitioner then
stole the victim’s credit card and vehicle and went on a shopping spree. On July 26, 2006, the
grand jury returned a five-count indictment against petitioner: one count of murder, in violation of

       1
        Since the filing of the appeal in this case, the superintendent at Mt. Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W. Va. Code § 15A-5-3.
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West Virginia Code § 61-2-1; one count of first-degree robbery, in violation of West Virginia Code
§ 61-2-12(a)(1); and three counts of forgery of a credit card, in violation of West Virginia Code §
61-3-24a(c).

        On October 2, 2006, petitioner’s trial counsel filed a motion to withdraw at petitioner’s
request. Trial counsel argued that he be allowed to withdraw because “[c]ounsel and [petitioner]
have substantially differing views of the merits of the case and how to proceed.” At an October
23, 2006, hearing, petitioner informed the circuit court that “there’s some points in my case that
we don’t see eye to eye on,” but did not specify the points of their disagreement. Accordingly, the
circuit court found that it “[did] not believe that [petitioner has] made a case for . . . appointing
new counsel.” By order entered November 20, 2006, the circuit denied the motion to withdraw.

         In March of 2007, petitioner’s case proceeded to trial. The State presented the testimony
of Steven Jones. Mr. Jones testified that he accompanied petitioner on the shopping spree
following the victim’s death, during which petitioner used the victim’s credit card at various
retailers and traded the victim’s vehicle for crack cocaine. Mr. Jones was cross-examined by
petitioner’s trial attorney. In petitioner’s case-in-chief, petitioner testified that he went to the
victim’s house to “make some money” by providing sexual favors to the victim. However, an
altercation ensued, and petitioner hit the victim with a claw hammer and took the victim’s wallet,
keys, and vehicle. Petitioner testified that he traded the vehicle for crack cocaine the following
morning and admitted that he used the victim’s credit card on two occasions. However, petitioner
testified that Mr. Jones also used the credit card after petitioner gave it to him when the two were
at the drive-thru at a fast food restaurant.

       Following jury instructions and closing arguments, the jury convicted petitioner of second-
degree murder, first-degree robbery, and three counts of forgery of a credit card. By order entered
June 1, 2007, the circuit court sentenced petitioner to an aggregate term of incarceration of 33 to
150 years. Petitioner sought review of his convictions and sentence in this Court, which refused
his appeal on March 20, 2008.

        On October 2, 2008, petitioner filed a petition for a writ of habeas corpus in the circuit
court, requesting a new trial. Petitioner received appointment of counsel and an evidentiary hearing
was held on February 18, 2009. By order entered April 17, 2009, the circuit court denied
petitioner’s request for habeas relief. On April 28, 2009, petitioner filed a notice of appeal.
Petitioner’s first habeas counsel was relieved from further representation and a new attorney was
appointed to represent petitioner in his habeas appeal. However, no appeal from the circuit court’s
April 17, 2009, order denying petitioner’s first habeas petition was ever filed.

        On November 17, 2009, petitioner filed a second habeas petition. By order entered
February 5, 2010, the circuit court appointed yet another attorney to represent petitioner. On
October 22, 2010, petitioner’s attorney filed an amended petition. On December 12 and 14, 2012,
the circuit court held an evidentiary hearing and ultimately determined that, because the appellate
attorney in the first habeas proceeding failed to file an appeal, petitioner would be allowed to
present evidence on all grounds for relief asserted in his amended habeas petition, including those

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that the circuit court denied in the first habeas proceeding. Petitioner, his criminal trial attorney,
and his attorneys from his first habeas proceeding all provided testimony.

         By order entered January 9, 2014, the circuit court denied petitioner’s second habeas
petition. The court referenced that petitioner’s attorney from the first habeas proceeding testified
that he discussed the Losh checklist with petitioner and that petitioner “fully understood that any
issue he did not raise at that time was waived forever.”2 The circuit court further referenced that,
during petitioner’s testimony, “he conceded that [his attorney] had reviewed the Losh [l]ist with
him and that he understood it at that time.” The circuit court found that, in the second habeas
proceeding, petitioner was again advised of “his obligation to raise all grounds for post-conviction
relief in one proceeding.” The circuit court determined that petitioner’s habeas attorney was not
ineffective by failing to raise the issue of trial counsel’s performance because the trial record
reflected “no grounds on which to base any allegation of ineffective assistance of trial counsel.”

        Petitioner appealed the circuit court’s January 9, 2014, order denying his second habeas
petition to this Court, which affirmed the circuit court’s ruling in Lind v. Ballard (“Lind I”), No.
14-0116, 2015 WL 5125884, at *7 (W. Va. August 31, 2015) (memorandum decision). In Lind I,
we declined to consider the issue of whether petitioner’s habeas attorney in his second proceeding
was ineffective, finding that the claim “would more appropriately be raised in a new petition for
writ of habeas corpus.” Id. at *4. On January 29, 2016, petitioner filed a third habeas petition,
raising ineffective assistance of counsel. Petitioner filed supplements to his petition on April 7,
2016, and September 2, 2016. By order entered on October 26, 2016, the circuit court denied
petitioner’s third habeas petition without a hearing and without appointment of counsel.

        Petitioner appealed the circuit court’s October 26, 2016, order in Lind v. Ballard (“Lind
II”), No. 16-1033, 2017 WL 4570572 (W. Va. October 13, 2017) (memorandum decision).
Petitioner argued that neither his first nor his second habeas proceeding constituted an omnibus
habeas corpus proceeding. Id. at *4. However, in Lind II, we found that petitioner was previously
afforded an omnibus hearing, which triggered the application of the doctrine of res judicata to
generally bar the filing of successive habeas petitions. Id. We explained:

       First, we found in Lind I that by allowing petitioner to re-raise the claims in the
       second habeas proceeding, the circuit court cured the failure of the appellate
       attorney in the first habeas proceeding to file an appeal in that case. Second, the
       circuit court included a notation in its January 9, 2014, order denying habeas relief
       that petitioner was advised of “his obligation to raise all grounds for post-conviction
       relief in one proceeding.” Moreover, in Lind I, we concurred with the circuit court’s
       finding that the trial attorney in the first habeas proceeding had, in fact, “explained
       the Losh list and waiver requirements to petitioner and [that] petitioner understood
       his rights.” Third, we find that in both petitioner’s criminal case and his three


       2
         In Losh v. McKenzie, 166 W. Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we
compiled a non-exclusive list of potential grounds that a circuit court should address with a habeas
petitioner as to whether each ground was being either waived or raised in the proceeding.
                                                  3
       habeas proceedings, the circuit court has made ample findings showing that
       petitioner’s grounds for habeas relief are without merit[.]

Lind II at *4 (Citations to Lind I omitted.).

        Given that it constitutes an exception to the doctrine of res judicata, we addressed
petitioner’s claim that his habeas attorney in his second proceeding was ineffective. We ultimately
rejected the claim, finding that “all of the grounds petitioner alleges that his second habeas trial
attorney failed to raise are without merit and/or were encompassed within the issues fully and
finally adjudicated in his appeal in Lind I.” Id. at 6.3 Accordingly, we affirmed the circuit court’s
denial of petitioner’s third habeas petition. Id. at 7.

        On August 7, 2017, petitioner filed a petition for a writ of mandamus to compel the circuit
court to rule on outstanding motions from his third habeas proceeding as well as his criminal case,
including motions for reduction of sentence filed on April 5, 2008, and September 29, 2015. By a
September 27, 2017, order entered in the third habeas proceeding, the circuit court denied the
outstanding motions. 4 After “carefully consider[ing] the [relevant] motions, exhibits[,] and
affidavits,” the circuit court denied the motions for reduction of sentence, finding that petitioner
failed to provide any “factual basis upon which to grant a reduction in petitioner’s sentence.”

         Petitioner appealed the circuit court’s September 27, 2017, order in Lind v. Ames (“Lind
III”), No. 17-0897, 2019 WL 2323829 (W. Va. May 31, 2019) (memorandum decision). In Lind
III, this Court found that the circuit court lacked jurisdiction to consider the September 29, 2015,
motion for reduction of sentence, given that it was untimely filed,5 and affirmed the denial of the
April 5, 2008, motion for reduction of sentence. Id. at *4-5.

       3
         In Lind II, petitioner argued that his second habeas attorney failed (1) to present the
testimony of a witness, who had been convicted of maliciously assaulting the victim in a separate
incident in 2004 and who refused to testify at petitioner’s trial on the ground that his testimony
might tend to incriminate him during his appeal of the malicious assault conviction; (2) to assert
that the jury was not properly instructed with regard to the intent to steal, which is necessary to
support a conviction for first-degree robbery; (3) to argue that petitioner was denied due process
of law when co-counsel was not appointed in his criminal trial; (4) to assert that there was
insufficient evidence to support the third conviction for forgery of a credit card; (5) to call Mr.
Jones as a witness so that he could be impeached; (6) to assert that the circuit court’s June 1, 2007,
sentencing order failed to set forth sufficient findings to support petitioner’s sentence; and (7) to
argue that count two of the indictment, which charged petitioner with first-degree robbery, was
defective. Id. at *4.
       4
         Given the entry of the circuit court’s September 27, 2017, order, we refused petitioner’s
mandamus petition as moot by order entered October 11, 2017. We take judicial notice of the
record in the mandamus action, Case No. 17-0702.
       5
           In Syllabus Point 2 of State ex rel. Smith v. Sims, 239 W. Va. 764, 806 S.E.2d 420 (2017),

                                                   4
        On March 23, 2018, petitioner filed a motion for relief from the September 27, 2017, order
pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. Petitioner requested a stay
to allow for the development of the record. On May 4, 2018, the circuit court received a letter from
petitioner’s sister, who asked that he be given leniency. On May 15, 2018, petitioner filed
certificates indicating that he maintained satisfactory performance in his prison classes. By order
entered July 23, 2018, the circuit court denied the motion, noting that it reviewed “relevant
documents within the record and [c]ourt file.” The circuit court found that petitioner failed to show
any of the reasons set forth in Rule 60(b) as justifying relief under the rule.

        Also, on June 14, 2018, petitioner filed a fourth habeas petition alleging (1) his attorney in
the second habeas proceeding failed to investigate and raise the claim that trial counsel was
ineffective by not putting on available mitigation evidence at petitioner’s sentencing hearing; and
(2) a change in the law that is favorable to petitioner. In a second order entered July 23, 2018, the
circuit court dismissed the habeas petition, finding that a hearing was not required and that “this
petition failed to demonstrate to this [c]ourt’s satisfaction that [petitioner] is entitled to relief[.]”
Petitioner appealed both of the circuit court’s July 23, 2018, orders.

                The circuit court properly denied petitioner’s motion for relief from
   the circuit court’s September 27, 2017, order denying the motions for reduction of sentence

        In Lind III, we found that the circuit court had jurisdiction to consider the April 5, 2008,
motion for reduction of sentence and that it was proper to take into account the exhibits attached
to the untimely filed motion for reduction of sentence. 2019 WL 2323829, Id. at *4-5.6 With that

we held “[a] circuit court does not have jurisdiction to rule upon the merits of a motion for
reduction of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure when
the motion is filed outside the 120-day filing period set out under that rule.” Although Sims was
decided after the entry of the circuit court’s September 27, 2017, order, we note that the 120-day
timeframe set forth in Rule 35(b) had long been in effect. Moreover, in Sims, we cited to numerous
instances where this Court upheld denials of Rule 35(b) motions as untimely, all of which predate
petitioner’s September 29, 2015, motion. Id. at 771, 806 S.E.2d at 427.
        6
         In considering the exhibits attached to the September 29, 2015, motion for reduction of
sentence, we noted in Lind III that Rule 35(b) required the circuit court to rule on the timely filed
April 5, 2008, motion for reduction for sentence within “‘a reasonable time.’” Id. at *4. In Syllabus
Points 4 and 5 of State v. Head, 198 W. Va. 298, 480 S.E.2d 507(1996), we held:

                4.      When a trial court fails to act on a motion timely filed by a
                defendant under Rule 35(b) of the West Virginia Rules of Criminal
                Procedure by reason of an administrative error, any resultant delay
                cannot, as a matter of law, be an unreasonable delay barring Rule
                35(b) relief.

                5.      When considering West Virginia Rules of Criminal

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in mind, we now consider petitioner’s challenge to the circuit court’s denial of his motion for relief
from the September 27, 2017, order denying the motions for reduction of sentence.

        “An appeal of the denial of a Rule 60(b) motion brings to consideration for review only the
order of denial itself and not the substance supporting the underlying judgment nor the final
judgment order.” Syl. Pt. 3, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974). Accordingly,
in reviewing the denial of the Rule 60(b) motion, “the function of the appellate court is limited to
deciding whether the trial court abused its discretion in ruling that sufficient grounds for disturbing
the finality of the judgment were not shown in a timely manner.” Id. at 778, 204 S.E.2d at 86, syl.
pt. 4. Furthermore, the denial of the motion will not be disturbed on appeal “unless there is a
showing of an abuse of such discretion.” Id., syl. pt. 5. Rule 60(b) provides:

       On motion and upon such terms as are just, the court may relieve a party or a party’s
       legal representative from a final judgment, order, or proceeding for the following
       reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable
       cause; (2) newly discovered evidence which by due diligence could not have been
       discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether
       heretofore denominated intrinsic or extrinsic), misrepresentation, or other
       misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been
       satisfied, released, or discharged, or a prior judgment upon which it is based has
       been reversed or otherwise vacated, or it is no longer equitable that the judgment
       should have prospective application; or (6) any other reason justifying relief from
       the operation of the judgment. The motion shall be made within a reasonable time,
       and for reasons (1), (2), and (3) not more than one year after the judgment, order,
       or proceeding was entered or taken. . . .

        On appeal, petitioner argues that the circuit court’s finding that he failed to show any of
the reasons set forth in Rule 60(b) is insufficient to allow meaningful appellate review of its ruling.
We disagree. In Lind II, we found that the circuit court’s sentencing rationale was adequately
reflected in the record where petitioner “murdered a man, robbed him, and engaged in forgery.”
2017 WL 4570572, at *6 (quoting Lind I, 2015 WL 5125884, at *5)).7 In State v Redman, 213 W.
Va. 175, 180-81, 578 S.E.2d 369, 374-75 (2003), we rejected the argument that the trial court
failed to fully consider the defendant’s rehabilitation efforts, explaining:


               Procedure 35(b) motions, circuit courts generally should consider
               only those events that occur within the 120-day filing period;
               however, as long as the circuit court does not usurp the role of the
               parole board, it may consider matters beyond the filing period when
               such consideration serves the ends of justice.
       7
         We note that our memorandum decisions in Lind I, Lind II, and Lind III each constitute
an adjudication on the merits. See In Re: T.O., 238 W. Va. 455, 464, 796 S.E.2d 564, 573 (2017);
State v. McKinley, 234 W. Va. 143, 151, 764 S.E.2d 303, 311 (2014).
                                                  6
        Clearly, a trial judge needs to consider the issue of rehabilitation in making its
        sentencing decisions. But those decisions are not to be made in a vacuum separate
        from the relevant facts that weigh on this serious issue and its attendant
        consequences on the community at large. To submit, as does Appellant, that the
        trial court utterly failed to consider rehabilitation and failed to explain why
        rehabilitation was not an option is to ignore the cumulative record in this case.

        Here, the circuit court noted that it reviewed “relevant documents within the record and
[c]ourt file.” Accordingly, we find that petitioner fails to show that the circuit court did not give
full consideration to his sister’s letter and the certificates indicating that he maintained satisfactory
performance in his prison classes. Therefore, we conclude that the circuit court did not abuse its
discretion in denying petitioner’s Rule 60(b) motion for relief from the September 27, 2017, order
denying the motions for reduction of sentence.8

               The circuit court properly dismissed petitioner’s fourth habeas petition.

       In Syllabus Points 1 and 3 of Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016),
we held:

        1.      “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).

        ....

        3.      “‘A court having jurisdiction over habeas corpus proceedings may deny a
        petition for a writ of habeas corpus without a hearing and without appointing
        counsel for the petitioner 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.’ Syllabus Point 1, Perdue v. Coiner, 156 W. Va. 467, 194

        8
         We further find that there was no reason for the circuit court to issue a stay to allow for
the development of the record. With regard to both his request for a reduction in sentence and his
request for habeas relief, petitioner argues that he is diligently seeking to obtain evidence not
previously available. However, as respondent points out, petitioner has yet to obtain any newly
discovered evidence. Rule 60(b) requires that a motion for relief from judgment based on newly
discovered evidence be filed within one year of the judgment’s entry. We find that petitioner may
not evade this requirement by filing his Rule 60(b) motion prior to obtaining any newly discovered
evidence and requesting a stay. Pursuant to Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762,
277 S.E.2d 606 (1981), petitioner would be permitted to file a subsequent habeas petition once he
obtains any newly discovered evidence. Therefore, we find that no reason existed for a delay in
the circuit court’s rulings on either the Rule 60(b) motion or the habeas petition.
                                                   7
        S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W. Va. 698, 601 S.E.2d 18
        (2004).

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

                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 . .
        . or, a change in the law, favorable to the applicant, which may be applied
        retroactively.

         On appeal, petitioner argues that the circuit court’s dismissal of his fourth habeas petition
was erroneous given that the court’s findings were insufficient under Syllabus Point 1 of State ex
rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997), where we held that a habeas court is
required to make specific findings of fact and conclusions of law relating to each contention raised.
Here, petitioner raised two claims, and the circuit court found that a hearing was not necessary and
that “this petition failed to demonstrate to this [c]ourt’s satisfaction that [petitioner] is entitled to
relief[.]” We find that these findings were sufficient under the facts and circumstances of the
instant case where the doctrine of res judicata bars successive habeas petitions subject to the
exceptions set forth in Syllabus Point 4 of Losh.

        Petitioner argues that habeas counsel failed to investigate and raise the claim that trial
counsel was ineffective in not putting on available mitigation evidence at petitioner’s sentencing
hearing. However, in Lind I, we affirmed the circuit court’s ruling that there were no grounds on
which to base any allegation of ineffective assistance of trial counsel, finding that the claim “cannot
be maintained.” 2015 WL 5125884, at *5. Therefore, we find that trial counsel’s alleged
ineffectiveness has been previously and finally adjudicated and may not be resurrected under the
guise of ineffective assistance of habeas counsel.

        Petitioner further argues that the United States Supreme Court’s decision in McCoy v.
Louisiana, 138 S.Ct. 1500 (2018), represents a change in the law that is favorable to him. In
McCoy, the Supreme Court held that “a defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the
defendant the best chance to avoid the death penalty.” 138 S.Ct. at 1505. Assuming, arguendo, that
the holding announced in McCoy extends beyond the death penalty-context, petitioner fails to
make any argument regarding whether McCoy may be retroactively applied to cases that were final
before it was decided.

        Respondent argues that, even if McCoy could apply to petitioner’s case, it is factually
distinguishable. We agree. Both petitioner and the defendant in McCoy testified at trial: petitioner,
that he did not commit forgery of a credit card at a fast food restaurant; and the defendant, in
McCoy, that he did not kill his family. 2017 WL 4570572, at *1; 138 S.Ct. at 1507. However,
unlike the defendant’s attorney in McCoy, who made a concession that his client killed his family,
138 S.Ct. at 1506-07, petitioner’s trial attorney made no concession regarding the third count
                                                   8
alleging forgery of a credit card. While the record reflects that trial counsel’s strategy was to focus
the defense on the charges of first-degree murder and first-degree robbery given their severity,
petitioner points to nothing to establish that his trial attorney conceded, over his objection, that he
committed forgery of a credit card at the fast food restaurant. Therefore, based on our review of
the record, we reject petitioner’s argument that the Supreme Court’s decision in McCoy represents
a change in the law that is favorable to him. Accordingly, given that neither asserted exception to
the doctrine of res judicata applies to this case, we conclude that the circuit court did not abuse its
discretion in dismissing petitioner’s fourth habeas petition.

        For the foregoing reasons, we affirm (1) the circuit court’s July 23, 2018, order denying
petitioner’s motion for relief from the September 27, 2017, order denying his motions for reduction
of sentence; and (2) the circuit court’s separate July 23, 2018, order dismissing his fourth petition
for a writ of habeas corpus.

                                                                                            Affirmed.


ISSUED: November 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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