                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS



John S.,
Petitioner Below, Petitioner                                                        FILED
                                                                                 June 25, 2020
vs) No. 19-0537 (Fayette County 19-C-4)                                         EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION



       Petitioner John S., 1 self-represented litigant, appeals the May 29, 2019, order of the Circuit
Court of Fayette County denying his third petition for a writ of habeas corpus. Respondent Donnie
Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Andrea Nease Proper, filed a
response in support of the circuit court’s order.

       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.

       In June of 2010, petitioner resided with his future wife, 2 his ten-year-old son from a
previous relationship, and his wife’s nine-year-old niece, N.L., over whom his wife had


       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
           Petitioner and his wife married in November of 2010.
                                                  1
guardianship. Petitioner was accused of sexually molesting N.L., and the molestation by petitioner
began within weeks of him moving into his future wife’s home.

        On January 9, 2013, petitioner was indicted in the Circuit Court of Fayette County on nine
counts of first-degree sexual assault pursuant to West Virginia Code § 61-8B-3, based on acts
occurring from June of 2010 through February of 2011; and nine counts of sexual abuse by a
parent, guardian, custodian or person in a position of trust pursuant to West Virginia Code § 61-
8D-5. Following a jury trial in May of 2013, petitioner was found guilty on all counts. The circuit
court subsequently denied petitioner’s post-trial motions and sentenced him to an aggregate term
of ninety-five to 340 years of incarceration.

        Petitioner appealed his convictions, which this Court affirmed in State v. John S. (“John S.
I”), No. 13-0780, 2014 WL 2682873 (W. Va. June 13, 2014) (memorandum decision). In his
criminal appeal, petitioner raised the following assignments of error: (1) petitioner’s convictions
were supported by insufficient evidence; (2) the child victim’s testimony was not credible; (3) the
West Virginia Rules of Evidence were violated by the circuit court admitting hearsay evidence,
including the child victim’s letter to her guardian and her written interview answers; and (4)
petitioner’s trial was unfair because the circuit court failed to disqualify a juror, who was his ex-
wife’s cousin. Id. at *2-5.

        On July 15, 2014, petitioner filed a petition for a writ of habeas corpus in the circuit court.
Relevant here, petitioner alleged that his trial counsel provided ineffective assistance by failing to
retain an expert medical witness for the defense and that his aggregate sentence was
unconstitutionally disproportionate to his offenses. 3 By order entered on November 12, 2014, the
circuit court found that petitioner’s claim of ineffective assistance of trial counsel was factually
inaccurate because trial counsel retained an expert medical witness, Dr. Guertin, whose deposition
testimony was presented to the jury via video and used by counsel “to impeach and discredit the
State’s expert.” The circuit court further found that petitioner’s aggregate sentence of ninety-five
to 340 years of incarceration was “in no form or fashion, violative of any statutory or constitutional
law,” given the fact that through a combination of concurrent and consecutive sentences, the court
“impose[d] a less severe sentence than the maximum permitted by law.” Petitioner appealed the
November 12, 2014, order, which this Court affirmed in John S. v. Ballard (“John S. II”), No. 14-
1184, 2015 WL 5331822 (W. Va. September 11, 2015) (memorandum decision), adopting “the
circuit court’s well-reasoned findings and conclusions.” Id. at *3 (Footnote omitted).

        On January 7, 2019, petitioner filed a third habeas petition, 4 alleging that trial counsel was
ineffective by failing to call the defense expert witness (who resided in Michigan) at trial or

       3
        The other grounds for habeas relief raised in the July 15, 2014, habeas petition were: (1)
double jeopardy; (2) insufficient evidence; (3) erroneous admission of hearsay evidence; (4)
improper comments by prosecutor; (5) cumulative error; and (6) actual innocence.
       4
         Petitioner filed a second habeas petition on November 24, 2015, which was denied by the
circuit court in an order entered on December 1, 2015. Petitioner appealed the December 1, 2015,
(continued . . .)
                                                  2
introduce the expert’s “opinion letter” into evidence. Petitioner further alleged that his aggregate
sentence was unconstitutionally disproportionate to his offenses. By order entered on May 29,
2019, the circuit court denied the petition as without merit.

        Petitioner appeals the circuit court’s May 29, 2019, order. This Court reviews a circuit
court order denying a petition for a writ of habeas corpus 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).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Furthermore,

               “‘[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).

Syl. Pt. 3, id. at 412, 787 S.E.2d at 865.

       On appeal, petitioner argues that this Court should reverse the circuit court’s order and
remand this case for further proceedings. Respondent counters that the circuit court properly
denied the petition. We agree with respondent.

        Here, the circuit court found the claims raised in the instant petition were the same claims
raised by petitioner in the habeas petition in John S. II, and, thus, could be denied based on the
findings set forth in the November 12, 2014, order denying petitioner’s first habeas petition
adopted by this Court in John S. II. See 2015 WL 5331822, at *3. Accordingly, based on our review
of the record, and for the reasons noted by the circuit court in its May 29, 2019, order denying
petitioner’s instant petition, we find no abuse of discretion and no error.

       Having reviewed the circuit court’s May 29, 2019, “Order Denying Petition For Writ Of
Habeas Corpus,” we hereby adopt and incorporate the circuit court’s well-reasoned findings and
conclusions, which we find address petitioner’s assignments of error. The Clerk is directed to


order, which was affirmed by this Court in John S. v. Terry (“John S. III”), No. 15-1225, 2018 WL
1040354 (W. Va. February 23, 2018) (memorandum decision).

                                                 3
attach a copy of the May 29, 2019, order to this memorandum decision. 5 Accordingly, we
conclude that the circuit court’s denial of the instant petition did not constitute an abuse of
discretion.

        For the foregoing reasons, we affirm the circuit court’s May 29, 2019, order denying
petitioner’s third petition for a writ of habeas corpus.

                                                                                          Affirmed.


ISSUED: June 25, 2020


CONCURRED IN BY:

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




       5
           Petitioner’s middle initial and full last name have been redacted. See fn.1.
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