                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Jessie D.,                                                                         FILED
Petitioner Below, Petitioner
                                                                                 May 3, 2019
                                                                              EDYTHE NASH GAISER, CLERK
vs) No. 17-0582 (Mingo County 16-C-174)                                       SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Jessie D.,1 pro se, appeals the May 22, 2017, order of the Circuit Court of Mingo
County denying his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,2 by counsel Julianne Wisman, filed a response
in support of the circuit court’s order. 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.

       On February 28, 1995, a Mingo County jury found petitioner guilty of four counts of
       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
        Since the filing of the appeal in this case, the superintendent at Mount 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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first-degree sexual assault and four counts of sexual abuse by a parent, guardian, or custodian. The
circuit court subsequently sentenced Petitioner to an aggregate term of thirty-five to eighty-five
years of incarceration.

        Prior to the instant habeas corpus proceeding, petitioner filed six previous habeas petitions.
Petitioner had an omnibus hearing on February 8, 1999, in connection with his first habeas
proceeding. Petitioner’s habeas attorney submitted a Losh checklist indicating each and every
ground that Petitioner felt might entitle him to relief.3 The circuit court inquired on the record
whether habeas counsel had discussed with petitioner all grounds that might apply to his case and
had advised petitioner that any grounds not raised would be deemed voluntarily and intentionally
waived. Petitioner’s habeas attorney informed the circuit court that he had discussed with his client
every potential ground for relief and had explained the conclusive effect of a final decision on
successive habeas petitions. Petitioner signed the Losh checklist submitted by his attorney and
initialed all the grounds he wished to assert. The circuit court accepted the checklist, admitted it
into the record, and accordingly found that Petitioner had knowingly and intelligently waived all
grounds for relief not asserted.

       On March 19, 1999, the circuit court entered a final order denying all grounds for relief
with the exception of the ground alleging that petitioner had been sentenced under the wrong
version of West Virginia Code § 61-8B-3, regarding two of his first-degree sexual assault
convictions. The circuit court granted relief on that ground and resentenced petitioner under the
version of West Virginia Code § 61-8B-3 in effect at the time of the commission of those offenses.

        Subsequently, in petitioner’s sixth habeas proceeding, the circuit court held an evidentiary
hearing on April 4 and 25, 2011, (“2011 hearing”) given petitioner’s claim that his prior habeas
attorney provided ineffective assistance. However, petitioner’s attorney at the 2011 hearing
(“2011 counsel”) explained that Petitioner’s ineffective assistance claim was ultimately based on
trial counsel’s performance in the underlying criminal case because his “[prior] habeas counsel
failed to recognize” certain errors of Petitioner’s trial attorney. Accordingly, the circuit court
determined that Petitioner was precluded from re-raising that claim, finding:

       So, based upon all those matters, every opportunity has been given in the past to
       fully litigate all those issues and they, in fact, have been litigated. The omnibus
       proceeding has already been held. Therefore, we are holding this proceeding as a
       subsequent habeas proceeding and the Court finds that all the issues that are set
       forth in the transcript with regard to actions by trial counsel, actions by the trial
       court, actions by the prosecuting attorney, by the jury, and by the spectators all
       were fully litigated or and raised and decided and appealed or they could have been


       3
         In Losh v. McKenzie, 166 W. Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we
compiled a nonexclusive 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.


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        with reasonable diligence because they were set forth in the transcript and all those
        issues were raised, litigated[,] and decided.

        The 2011 hearing continued on the issue of newly discovered evidence, which may be
raised in a successive habeas petition.4 Petitioner intended to call Kyle S. to testify regarding
comments that petitioner’s son had allegedly made to Kyle S. that tended to support petitioner’s
claim of innocence. The comments, if true, would represent a change from petitioner’s son’s
testimony at trial. Respondent objected on the ground of hearsay. Petitioner’s 2011 counsel argued
that Kyle S.’s testimony should be allowed because the comments that petitioner’s son had made
to him constituted statements against petitioner’s son’s interest given that it contradicted
Petitioner’s son’s testimony at trial.5 The circuit court sustained respondent’s hearsay objection.

       Petitioner presented the testimony of his stepdaughter, who was the victim in the
underlying criminal case,6 and his former wife. Both witnesses stood by their trial testimony.
When questioned by petitioner’s 2011 counsel, his stepdaughter testified as follows:

        Q. So[,] if someone else said that you and your mother would laugh and joke about
        what happened to [Petitioner]—

        A. —That’s nothing to laugh about—the molestation of a child.

        Q. So, that wouldn’t be true?

        A. No.

        Q. And[,] you’ve never joked about putting an innocent man in jail?

        4
            In syllabus point four of Losh v. McKenzie, 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;
        newly discovered evidence; or, a change in the law, favorable to the applicant,
        which may be applied retroactively.

(Some emphasis added.).
        5
            Petitioner’s son would have been a child when he testified at his father’s trial.
        6
         As reflected in the testimony of petitioner’s stepdaughter, petitioner’s sexual abuse of his
stepdaughter occurred from the time she was five years old until the time she was eight years old.
Petitioner’s stepdaughter was eight years old when she originally testified at trial.

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       A Never[.]

       ....

       Q. So[,] you understand that this is your last chance that if any of that was untrue
       that this is our last chance to get thru that?

       A. I will never change my statement. It happened, and I’ll take a lie detector test. A
       five year old does not get Chlamydia at five if something did not happen to her.

The victim’s mother responded to petitioner’s 2011 counsel’s questions as follows:

       Q. If someone else were to say that you and [the victim] would laugh and joke
       about putting an innocent man in jail, is that true?

       A. No, it isn’t.

       Q. Do you know why someone would say something like that?

       A. I have no idea.

       Q. You understand that this is the last opportunity if anything was said at trial that
       isn’t true to correct that? Do you feel that anything was said at trial that isn’t true?

       A. No.

       Q. So you stand by your testimony then and today?

       A. Yes.

        In its May 5, 2011, order denying petitioner’s sixth habeas petition, the circuit court found
that “[t]he witnesses both testified that their trial testimony was truthful, and testified that their
testimony did not need changed or updated.” Petitioner appealed the denial of habeas relief, but
this Court affirmed the circuit court’s May 5, 2011, order in [Jessie D.] v. Ballard, No. 11-1062,
2012 WL 6097616 (W. Va. Dec. 7, 2012) (memorandum decision).7

        On September 23, 2016, petitioner filed a habeas petition alleging that his 2011 counsel
provided ineffective assistance in his sixth habeas proceeding. By order entered May 22, 2017, the
circuit court denied habeas relief, finding that:

       . . . Petitioner asserts ineffective assistance of counsel as grounds for relief.
       However, in support of his argument, [p]etitioner merely reasserts all the grounds

       7
           We take judicial notice of the record in Jessie D.

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        in his prior habeas corpus proceedings, adding an additional ground of ineffective
        assistance of counsel in the . . . habeas proceedings[,] and the allegations of
        ineffective [assistance] of counsel appears to this court to be a pretext to re-litigate
        issues previously fully litigated[.]

        Petitioner now appeals the circuit court’s May 22, 2017, order denying habeas relief. 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).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). In West Virginia, claims of
ineffective assistance of counsel are governed by the two-pronged test established in Strickland v.
Washington, 466 U.S. 668 (1984), which requires the following: (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) (adopting
Strickland).

         On appeal, petitioner argues that his 2011 counsel failed to investigate and raise other
claims in addition to the newly discovered evidence claim in his sixth habeas proceeding. Based on
our review of the record, we concur with the circuit court’s finding at the April of 2011 hearing
that “all the issues that are set forth in the transcript with regard to actions by trial counsel, actions
by the trial court, actions by the prosecuting attorney, by the jury, and by the spectators all were
fully litigated” in prior proceedings. As we held in syllabus point two of Losh v. McKenzie, 166 W.
Va. 762, 277 S.E.2d 606 (1981), “[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[.]”
(Some emphasis added.). In his first habeas proceeding, petitioner signed the Losh checklist
submitted by his original habeas attorney to indicate each and every ground that petitioner felt
might entitle him to relief after being advised that any grounds not raised would be deemed
voluntarily and intentionally waived. Therefore, we agree with the circuit court’s finding that any
ground not raised at that time was waived.

       With regard to petitioner’s newly discovered evidence claim, we find that petitioner’s 2011
counsel presented both argument and testimony in support of that claim in the sixth habeas
proceeding. Based on our review of the record, we find that the denial of the newly discovered
evidence claim was not because petitioner’s 2011 counsel performed poorly, but because the claim
lacked merit as both the victim and the victim’s mother stood by their trial testimony. We further
note petitioner’s argument that the circuit court failed to make detailed findings with regard to his
2011 counsel’s performance. However, we agree with respondent’s position that the circuit court’s
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finding in its May 22, 2017, order, adequately stated the reason that petitioner’s sixth habeas
petition lacked merit: that petitioner was using the claim that his 2011 counsel provided ineffective
assistance as “a pretext to re-litigate issues previously fully litigated[.]” Therefore, we conclude
that the circuit court did not abuse its discretion in denying habeas relief.

        For the foregoing reasons, we affirm the circuit court’s May 22, 2017, order, denying
petitioner’s petition for a writ of habeas corpus.

                                                                                          Affirmed.


ISSUED: May 3, 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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