                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Herman Catlett,
Petitioner Below, Petitioner                                                         FILED
                                                                                   November 12, 2013
                                                                                RORY L. PERRY II, CLERK
vs) No. 13-0078 (Berkeley County 12-C-1019)                                   SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

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

                               MEMORANDUM DECISION

       Petitioner Herman Catlett, appearing pro se, appeals the order of the Circuit Court of
Berkeley County, entered January 14, 2013, that denied his most recent petition for a writ of
habeas corpus. Respondent Warden, by counsel Christopher C. Quasebarth, 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

          The body of Charles Arvin was found in his vehicle on July 1, 1984, just outside
Martinsburg, West Virginia. The victim’s car was seen two nights before, parked at the residence
of petitioner and his then-girlfriend Penny Stanley. The body was covered in household trash that
included an envelope addressed to petitioner and several articles containing Ms. Stanley’s
fingerprints. Petitioner and Ms. Stanley were subsequently arrested and charged with the murder.
Petitioner was released on bond while Ms. Stanley remained incarcerated. However, Ms. Stanley
later pled guilty to being an accessory after the fact to Mr. Arvin’s death and agreed to testify
truthfully at petitioner’s trial.

        Ms. Stanley testified at petitioner’s trial as follows: (1) the victim came to petitioner’s and
Ms. Stanley’s house on June 29, 1984; (2) Ms. Stanley went onto the front porch while petitioner
and the victim talked; and (3) Ms. Stanley saw the victim dead on the floor when petitioner called
her back in to the kitchen. Ms. Stanley further testified that she saw a club in the sink with water
running over it to ostensibly wash blood off it.1 Finally, Ms. Stanley testified that the victim often
sold drugs to petitioner and that petitioner recovered twenty Valium pills and approximately $900
in cash from the victim after murdering him. Ms. Stanley admitted that she helped petitioner put

       1
         Several days before petitioner’s trial, the alleged murder weapon, a tree branch, was
discovered in the basement of the residence of petitioner and Ms. Stanley. The State had the branch
analyzed and found no traces of latent fingerprints, blood, or hair on it.
                                                  1
plastic bags over the body and drag it to the victim’s vehicle. Petitioner then drove the car away
with the victim’s body in it. Subsequently, petitioner was convicted of first degree murder and was
sentenced to a life term in prison without the possibility of parole. This Court affirmed petitioner’s
conviction in State v. Catlett, 180 W.Va. 447, 376 S.E.2d 834 (1988).

        Since his murder conviction, petitioner has filed a total of six petitions for a writ of habeas
corpus in the circuit court. In his previous habeas corpus proceedings, petitioner had two omnibus
hearings, one in 1992 and one in 1998. On December 31, 2012, petitioner filed his sixth and most
recent petition for a writ of habeas corpus alleging newly discovered evidence as follows: (1) a
February 23, 2005 affidavit from Ms. Stanley (now Van Metre);2 and (2) a grand jury transcript
petitioner received as a result of a circuit court order entered October 1, 2012. In the October 1,
2012 order, the circuit court explained that the failure to previously provide petitioner with the
grand jury transcript was due to “inadvertence” on the part of the circuit clerk’s office.

        On January 14, 2013, the circuit court summarily dismissed petitioner’s sixth habeas
petition ruling that neither Ms. Stanley’s affidavit nor the grand jury transcript met the standard for
newly discovered evidence. The circuit court found that none of the allegations in Ms. Stanley’s
affidavit “state any new evidence probative to petitioner’s conviction.” Furthermore, the circuit
court noted that in the affidavit, Ms. Stanley “does not aver that she committed perjury or
otherwise lied” and “does nothing to refute all the other evidence received at trial.” In conclusion,
the circuit court “[did] not find this affidavit of a witness who testified at trial to be new evidence.”
As for the grand jury transcript, the court determined that it did not constitute newly discovered
evidence because with reasonable diligence, petitioner could have learned of the transcript “at
each of the prior omnibus habeas corpus proceedings and [petitioner’s direct] appeal.” While
petitioner raised additional issues in the instant petition, the circuit court found that “each ground,
beyond the two addressed above [alleging newly discovered evidence] has either been waived or
final[ly] adjudicated at direct appeal or his five previous habeas petitions.”3

Accordingly, the circuit court concluded that summary dismissal was appropriate. Petitioner now
appeals the circuit court’s January 14, 2013 order.

        2
            For convenience, Ms. Van Metre will be continued to be referred to as Ms. Stanley.
        3
         In Syllabus Point Two of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), this
Court held as follows:

                 A judgment denying relief in post-conviction habeas corpus is res
                 judicata on questions of fact or law which have been fully and
                 finally litigated and decided, and as to issues which with reasonable
                 diligence should have been known but were not raised, and this
                 occurs where there has been an omnibus habeas corpus hearing at
                 which the applicant for habeas corpus was represented by counsel or
                 appeared pro se having knowingly and intelligently waived his right
                 to counsel.

                                                   2
       We review the circuit court’s order summarily dismissing a habeas petition 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).

       On appeal, petitioner asserts that his most recent petition was properly supported by newly
discovered evidence and, as such, the doctrine of res judicata did not bar his petition.4 Respondent
argues that each of the grounds raised in the instant petition was capable of being decided on the
record alone and, therefore, the circuit court properly summarily dismissed the petition.

        This Court notes the standard for reviewing a claim of newly discovered evidence is set
forth in State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).5 The Court finds that petitioner’s

       4
         In Syllabus Point Four of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), this
Court 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: 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.
       5
          In the Syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979), this Court
held as follows:

               A new trial will not be granted on the ground of newly-discovered
               evidence unless the case comes within the following rules: (1) The
               evidence must appear to have been discovered since the trial, and,
               from the affidavit of the new witness, what such evidence will be, or
               its absence satisfactorily explained. (2) It must appear from facts
               stated in his affidavit that plaintiff was diligent in ascertaining and
               securing his evidence, and that the new evidence is such that due
               diligence would not have secured it before the verdict. (3) Such
               evidence must be new and material, and not merely cumulative; and
               cumulative evidence is additional evidence of the same kind to the
                                                 3
claim that Ms. Stanley’s affidavit constitutes new evidence is dubious in the extreme. The affidavit
was obtained nearly eight years before petitioner filed his instant petition. This Court’s records
reflect that the affidavit was obtained from Ms. Stanley during the appeal of the denial of
petitioner’s third habeas petition, approximately six months after the circuit court’s August 31,
2004 order. Although not procured in time for the circuit court’s consideration, petitioner raised
the affidavit in his appeal in Supreme Court No. 050841. Petitioner has had several other habeas
proceedings since this Court’s June 29, 2005 refusal order. Raising it, again, now seems, at the
very least, tardy. Furthermore, the circuit court’s findings, to the effect that the affidavit would not
have produced an opposite result at trial, are entitled to deference. 6 Therefore, this Court
concludes that Ms. Stanley’s affidavit is not new evidence.

        Petitioner encounters the same problem in arguing that the grand jury transcript was
improperly withheld from him. The circuit court found that petitioner had not been previously
provided with the transcript through mere “inadvertence” and that petitioner could have obtained it
prior to October of 2012 if he had acted with reasonable diligence “at each of the prior omnibus
habeas corpus proceedings and [petitioner’s direct] appeal.” Furthermore, after reviewing the
pages of the grand jury transcript that petitioner attaches to his brief, this Court finds nothing in the
excerpts that would have produced an opposite result at trial.7 Therefore, this Court determines
that the grand jury transcript does not constitute new evidence. Accordingly, this Court concludes


that the circuit court did not abuse its discretion in summarily dismissing petitioner’s sixth habeas


                same point. (4) The evidence must be such as ought to produce an
                opposite result at a second trial on the merits. (5) And the new trial
                will generally be refused when the sole object of the new evidence is
                to discredit or impeach a witness on the opposite side.” Syllabus
                Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).
        6
           Petitioner alleges that Ms. Stanley’s affidavit supports his contention that he killed the
victim in self-defense. However, petitioner’s self-defense argument was raised in his second
habeas proceeding in which petitioner testified at a October 6, 1998 hearing that there was a factual
basis for the defense because the victim came at him with a knife. Therefore, the affidavit is merely
cumulative of sworn testimony already considered.
        7
           The pages of the transcript reflect that because a witness could not be located, the
investigating officer testified to the grand jury that petitioner had made an incriminating statement
to the witness. It is unclear how this helps petitioner. According to the officer, the witness also
indicated that the murder weapon had been a baseball bat, not a tree branch. However, in State v.
Catlett, 180 W.Va. 447, 448, 376 S.E.2d 834, 836 (1988), this Court noted that Ms. Stanley had
testified that she saw a club in the kitchen sink, but that when it was finally discovered, the alleged
murder weapon was believed to be a tree branch. The investigating officer was probably accurate
when he told the grand jury that it was “a blunt instrument of some type.”

                                                   4
petition.8

        For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: November 12, 2013

CONCURRED IN BY:

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




        8
          Petitioner notes that he also attempted to re-raise the ineffectiveness of trial counsel on
the basis of Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), in which the
Supreme Court addressed the situation where counsel’s ineffective advice led to the rejection of an
offer of a plea agreement. This argument is without merit for two reasons. First, the only evidence
petitioner submitted tending to show that his counsel urged him to decline an alleged plea offer
was a time sheet showing that counsel conducted plea negotiations with the State. Petitioner did
not submit any evidence that an actual offer had been made or, if made, what the terms were.
Second, if petitioner wanted to argue that there was a plea offer that counsel erroneously advised
him to decline and that he should have the benefit of that offer, petitioner could have done so under
preexisting West Virginia law. See Tucker v. Holland, 174 W.Va. 409, 327 S.E.2d 388 (1985)
(writ granted with directions to the trial court to permit the tender, for consideration by the court,
of a plea of guilty to third degree arson based on a finding that counsel erroneously advised the
petitioner to plead nolo contendere when there had been no agreement to such a plea).
Accordingly, the circuit court correctly determined that every claim other than newly discovered
evidence had either been waived or finally adjudicated in petitioner’s prior proceedings.
                                                  5
