                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


Herman Catlett,
Petitioner Below, Petitioner
                                                                                        FILED
vs.) No. 19-0179 (Berkeley County 17-C-55)                                           April 23, 2020
                                                                                   EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
Donnie Ames, Superintendent, Mt. Olive                                                 OF WEST VIRGINIA
Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Herman Catlett, by counsel Nicholas J. Matzureff, appeals the January 31, 2019,
order of the Circuit Court of Berkeley County denying his seventh amended petition for a writ of
habeas corpus. Respondent, Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by
counsel Shannon Frederick Kiser, filed a response in support of the habeas court’s decision. On
appeal, petitioner argues that the habeas court erred in denying habeas corpus relief because
petitioner received ineffective assistance of counsel and was denied the opportunity to elaborate
on his ineffective assistance of counsel claims at an omnibus evidentiary hearing.

       This 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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

         The body of Charles Arvin (“the victim”) was found in his vehicle on July 1, 1984. The
victim’s vehicle 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 with Ms. Stanley’s fingerprints. Petitioner and Ms.
Stanley were subsequently arrested and charged with the victim’s 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 the victim’s murder and agreed to testify at petitioner’s trial.

        Ms. Stanley testified at petitioner’s trial as follows: (1) the victim came to petitioner’s and
Ms. Stanley’s residence 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

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petitioner called her into 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 plastic bags over the body and drag it to the victim’s vehicle. Petitioner then
drove the vehicle 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 seven petitions for habeas corpus
relief in the circuit court and two additional habeas petitions in federal court. In his previous habeas
court habeas corpus proceedings, petitioner was afforded two omnibus hearings, one in 1991 and
one in 1998. Petitioner filed his seventh and most recent petition for a writ of habeas corpus on
June 29, 2018. He argued before the habeas court that his 2002 habeas counsel was ineffective for
failing to raise a Brady 2 violation regarding the nondisclosure of a letter from the FBI to one
Lieutenant Kenneth Blake. In that letter, the FBI notified Lieutenant Blake that Fred Zain, who
performed forensic work on petitioner’s criminal case, had previously failed two FBI forensic
courses. Petitioner further argued that his prior habeas counsel was ineffective for failing to have
further DNA testing performed on the State’s evidence and for failing to assert due process
violations with regard to the testimony of Sergeant W. Randy Smith, who testified regarding hairs
discovered at the crime scene.

       On January 31, 2019, the habeas court denied petitioner’s petition for a writ of habeas
corpus. It found that all of the allegations raised by petitioner had previously been finally
adjudicated or waived. It also found that petitioner has had three prior full post-conviction habeas
proceedings with appointed counsel and hearings before the habeas court. Syllabus Point 4 of Losh
v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981) provides that

               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.

166 W. Va. at 762-63, 277 S.E.2d at 608.



       1
        Several days before petitioner’s trial, the alleged murder weapon, a tree branch, was
discovered in the basement of petitioner and Ms. Stanley’s residence. The State had the branch
analyzed and found no traces of latent fingerprints, blood, or hair.
       2
        Brady v. Maryland, 373 U.S. 83 (1963) (requiring the State to preserve and produce
exculpatory evidence in criminal proceedings).


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         The habeas court also determined that even if the merits of petitioner’s arguments had been
considered, he would not have been entitled to habeas corpus relief. Although petitioner’s 2002
habeas counsel did not specifically raise a Brady violation regarding the testimony of Mr. Zain,
the main focus of that proceeding was the evidence used at trial in light of In re West Virginia
State Police Crime Lab, Serology Division, 190 W. Va. 321, 438 S.E.2d 501 (1993) (herein
referred to as Zain I). 3 The habeas court found that although Mr. Zain testified in petitioner’s trial,
his testimony largely concerned chain of custody. While Mr. Zain performed an analysis of the
murder weapon, he found no blood, hair, or tissue on the weapon. As such, the habeas court found
that Mr. Zain’s testimony was not prejudicial to petitioner’s case, and his 2002 habeas counsel was
not ineffective for allegedly failing to raise a Brady claim regarding the nondisclosure of the FBI
letter. The habeas court further determined that prior habeas counsel was not ineffective for failing
to order further DNA testing of the evidence. The habeas court found that this allegation was
previously adjudicated or waived. It noted that petitioner admitted to killing the victim under oath
on multiple occasions. The habeas court also found that if further DNA testing had been performed,
it would have just further incriminated petitioner. Habeas counsel was therefore not ineffective for
failing to have the evidence independently tested. The habeas court also determined that prior
habeas counsel was not ineffective for failing to raise due process violations regarding Sergeant
Smith’s testimony. Sergeant Smith testified that hairs found on a blanket wrapped around the
victim’s body matched Ms. Stanley’s hair in length, color, texture, and pigmentation. The habeas
court found that Sergeant Smith did not testify that the hair belonged to Ms. Stanley, merely that
it matched in appearance as no hair evidence was introduced at petitioner’s trial. The habeas court
also found that it was unclear if petitioner even had standing to challenge Sergeant Smith’s
testimony. It is from the habeas court’s January 31, 2019, order that petitioner appeals.

       This Court reviews appeals of 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.” Syllabus point 1, Mathena v. Haines, 219
       W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009).

         On appeal, petitioner raises two assignments of error. First, petitioner contends that the
habeas court erred in denying habeas corpus relief on the basis of ineffective assistance of counsel.
He argues, as referenced above, that his previous habeas counsel was ineffective for failing to
assert a Brady violation in regard to the State’s evidence of Mr. Zain’s incompetence and
falsification of evidence in prior cases. He also argues that prior habeas counsel was ineffective in

       3
        In Zain I, it was discovered that Mr. Zain, former director of the Division of Public Safety
serology department, falsified forensic evidence in several criminal cases. See In re W. Va. State
Police Crime Lab, Serology Div., 190 W. Va. 321, 438 S.E.2d 501 (1993).



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failing to obtain independent DNA testing of the evidence, failing to obtain the raw data and
specific testing procedures Mr. Zain used, and failing to assert a due process violation regarding
Sergeant Smith’s trial testimony. We disagree.

        Claims of ineffective assistance of counsel are governed by the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), which states that, in order to prevail on a
claim of ineffective assistance of counsel, petitioner must show that “(1) [c]ounsel’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.” Syl. Pt. 5, in relevant part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
Furthermore,

       [i]n reviewing counsel’s performance, courts must apply an objective standard and
       determine whether, in light of all the circumstances, the identified acts or omissions
       were outside the broad range of professionally competent assistance while at the
       same time refraining from engaging in hindsight or second-guessing of trial
       counsel’s strategic decisions. Thus, a reviewing court asks whether a reasonable
       lawyer would have acted, under the circumstances, as defense counsel acted in the
       case at issue.

Id. at 6, 459 S.E.2d at 117. This Court “always . . . presume[s] strongly that counsel’s performance
was reasonable and adequate[,]” and

       [t]he test of ineffectiveness has little or nothing to do with what the best lawyers
       would have done. Nor is the test even what most good lawyers would have done.
       We only ask whether a reasonable lawyer would have acted, under the
       circumstances, as defense counsel acted in the case at issue. We are not interested
       in grading lawyers’ performances; we are interested in whether the adversarial
       process at the time, in fact, worked adequately.
Id. at 16, 459 S.E.2d at 127 (emphasis in original). Certainly, with the benefit of hindsight, “one
always may identify shortcomings, but perfection is not the standard for ineffective assistance of
counsel.” Id. at 17, 459 S.E.2d at 128.

        Here, petitioner fails to satisfy the first prong of Strickland/Miller. He asserts that prior
habeas counsel was ineffective for failing to raise a Brady violation regarding the FBI letter about
Mr. Zain. In syllabus point 2 of Zain I, this Court held that, “[a]lthough it is a violation of due
process for the State to convict a defendant based on false evidence, such conviction will not be
set aside unless it is shown that the false evidence had a material effect on the jury verdict.” 190
W.Va. at 322, 438 S.E.2d at 502. In syllabus point 3 of Zain I, this Court further held:

               “Where improper evidence of a non[-]constitutional nature is introduced by
       the State in a criminal trial, the test to determine if the error is harmless is: (1) the
       inadmissible evidence must be removed from the State’s case and a determination
       made as to whether the remaining evidence is sufficient to convince impartial minds
       of the defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is
       found to be insufficient, the error is not harmless; (3) if the remaining evidence is

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       sufficient to support the conviction, an analysis must then be made to determine
       whether the error had any prejudicial effect on the jury.” Syllabus Point 2, State v.
       Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct.
       1081, 63 L.Ed.2d 320 (1980).

         Mr. Zain’s involvement in petitioner’s case was considered in his 2002 habeas proceeding
wherein it was determined that Mr. Zain’s testimony was not prejudicial to petitioner’s case. Mr.
Zain testified regarding chain of custody and asserted that he found no blood, tissue, or DNA on
the murder weapon. Therefore, prior habeas counsel was not ineffective for failing to obtain
evidence discrediting Mr. Zain’s testimony. Further, even when Mr. Zain’s testimony is removed
from the case, there was still sufficient evidence to sustain petitioner’s conviction for first-degree
murder. The murder weapon was found in the basement of the residence in which petitioner
resided. The victim’s body was discovered covered in trash, which contained a letter addressed to
petitioner, and the fingerprints of Ms. Stanley were discovered on several items. Ms. Stanley later
pled guilty to being an accessory after the fact and testified at petitioner’s trial that he killed the
victim with a tree branch. Further, petitioner admitted several times under oath at his second habeas
proceeding that he killed the victim. We therefore find that prior habeas counsel was not ineffective
for failing to raise a Brady violation.

        Likewise, prior habeas counsel was not ineffective for failing to obtain independent DNA
testing of the murder weapon or for failing to assert a due process violation regarding Sergeant
Smith’s trial testimony. Mr. Zain testified at trial that there was no DNA evidence found on the
murder weapon. More importantly, petitioner confessed to the murder under oath. We further find
that prior habeas counsel committed no error in failing to challenge the grand jury testimony of
Sergeant Smith. Sergeant Smith testified that hairs matching the texture, pigmentation, length, and
color of Ms. Stanley’s were found on the blanket in which the victim’s body was wrapped.
Sergeant Smith did not testify that the hairs were a direct match for Ms. Stanley. Most importantly,
there was no hair evidence introduced at petitioner’s trial and therefore no need for prior habeas
counsel to challenge the testimony.

        Petitioner’s second assignment of error is that the habeas court erred in denying him the
opportunity to expand upon his ineffective assistance of counsel claim during an omnibus
evidentiary hearing. He asserts that the habeas court arbitrarily overlooked prior habeas counsel’s
ineffectiveness and the errors at his trial in denying him an omnibus hearing.

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

               “‘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
       S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W. Va. 698, 601 S.E.2d 18
       (2004).




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        Here, based on our review of both the record and our decision in Anstey, we find no error
in the habeas court’s decision not to hold an omnibus hearing.

        For the foregoing reasons, we affirm the habeas court’s January 31, 2019, denial of
petitioner’s petition for a writ of habeas corpus.

                                                                                       Affirmed.

ISSUED: April 23, 2020

CONCURRED IN BY:

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

DISQUALIFIED:

Chief Justice Tim Armstead




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