                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


Joshua Lee Slater,                                                                 FILED
Petitioner Below, Petitioner                                                    June 29, 2018
                                                                              EDYTHE NASH GAISER, CLERK
vs) No. 17-0491 (Kanawha County 14-P-130 & 16-P-150)                          SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Michael Martin, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Joshua Lee Slater, pro se, appeals the April 17, 2017, order of the Circuit Court
of Kanawha County denying his second and third petitions for writ of habeas corpus. Respondent
Michael Martin, Warden, Huttonsville Correctional Center, by counsel Sarah B. Massey, filed a
response in support of the circuit court’s order.1 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.

       In State v. Slater (“Slater I”), 222 W.Va. 499, 502-03, 665 S.E.2d 674, 677-78 (2008), this
Court set forth the underlying facts of this case:

               [Petitioner] lived with his long-time girlfriend, Angela Walls, and their two
       small children in a trailer in Sissonville[, West Virginia]. On November 29, 2005,
       [petitioner] and Ms. Walls got into an argument. At some point, [petitioner] hit Ms.
       Walls on the side of her head and threw a hammer, hitting her in the leg and causing
       minor bruising.
               When Ms. Walls indicated that she was taking the children to her mother’s
       house, [petitioner] ordered her to stay at gunpoint. He also threatened to kill Ms.
       1
         Although Ms. Massey filed a response on respondent’s behalf, Ms. Massey no longer
represents respondent in this matter. Respondent is now represented by Deputy Attorney General
Robert L. Hogan.

                                                1
       Walls’ entire family. [Petitioner] then ordered Ms. Walls into the bedroom where
       he pointed a twelve-gauge shotgun at her and threatened to shoot her. While they
       were in the bedroom, [petitioner] ordered Ms. Walls to change into camouflage
       clothing. After she did so, he informed her that she had 14 hours to live, and then he
       was going to take her into the woods, tie her to a tree, “buckshot” her in both her
       knees, knock her teeth out so there would be no dental records, and set her body on
       fire so she could not be found. Shortly thereafter, Ms. Walls and the children
       escaped through the bedroom window, and Ms. Walls drove to her mother’s house.

               Subsequently, [petitioner] went to Ms. Walls’ mother’s house. By that time,
       Ms. Walls, her mother Lori Walls, and the children had fled to Ms. Walls’
       grandmother’s house. [Petitioner] attempted to open the door to the Walls’ house
       with a key[,] but was unable to do so. He then broke the window in the back door
       with the barrel of a gun and kicked in the back door. A short time later, a police
       officer arrived at the Walls’ house. Although [petitioner] fled the house, he was
       arrested later that day.

              [Petitioner] was found guilty by a jury of kidnaping, for which he was
       sentenced to life with mercy; domestic battery, for which he received a determinate
       term of one year; wanton endangerment, for which he was sentenced to a
       determinate term of five years; and daytime burglary by breaking and entering, for
       which the trial court sentenced him to an indeterminate term of not less than one nor
       more than fifteen years. These sentences are to run consecutively.

        In appealing his various convictions and sentences in Slater I, petitioner raised the
following assignments of error: (1) sufficiency of evidence to support his burglary conviction; (2)
sufficiency of the evidence to support his kidnaping conviction; (3) constitutionality of his
aggregate sentence; (4) alleged instructional error regarding the law of wanton endangerment; and
(5) alleged instruction error regarding jury inferences. Id. at 503-10, 665 S.E.2d at 678-85. This
Court rejected petitioner’s arguments and affirmed his convictions and sentences. Id.

        Subsequently, in an initial habeas corpus proceeding where petitioner alleged ineffective
assistance of trial counsel, an omnibus hearing was held on July 9, 2010, and April 4, 2011. At the
July 9, 2010, hearing, petitioner’s habeas attorney presented the testimony of petitioner, his
mother, and his aunt. Respondent presented the testimony of petitioner’s trial attorney at the April
4, 2011, hearing. By order entered February 22, 2012, the circuit court denied petitioner’s habeas
petition, finding, inter alia, that petitioner’s trial attorney was not ineffective. In State v. Slater
(“Slater II”), No. 12-0330, 2013 WL 5418574, at *2-3 (W.Va. September 27, 2013)
(memorandum decision), petitioner’s habeas appellate attorney challenged the constitutionality of
the kidnaping statute, West Virginia Code § 61-2-14a, and the jury instruction regarding
inferences. This Court rejected petitioner’s arguments and affirmed the circuit court’s denial of
habeas relief. Id.

        On March 11, 2014, and March 31, 2016, petitioner filed his second and third habeas
petitions, alleging that his habeas attorney and his habeas appellate attorney provided ineffective
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assistance. By order entered April 17, 2017, the circuit court found that no need existed for a
hearing or appointment of counsel and denied habeas relief.

       On May 26, 2017, petitioner appealed the circuit court’s April 17, 2017, order denying his
second and third habeas petitions and, on June 26, 2017, filed a motion for appointment of
appellate counsel. By order entered June 30, 2017, this Court ruled that “petitioner’s motion for
appointment of counsel will be considered with the merits[.]”

       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, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). In syllabus points five and
six of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we held:

       5.     In the West Virginia courts, claims of ineffective assistance of counsel are
       to be governed by the two-pronged test established in Strickland v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (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.[2]

       6.      In 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.

        On appeal, petitioner argues that the circuit court erred in denying habeas relief without
holding a hearing and appointing counsel on his claims that his habeas attorney and his habeas
appellate attorney provided ineffective assistance. Respondent counters that the circuit court’s
denial of habeas relief should be affirmed. We agree with respondent.


       2
        The second prong of the Strickland/Miller standard is often referred to as the prejudice
prong. See State v. Hutton, 235 W.Va. 724, 739, 776 S.E.2d 621, 636 (2015).


                                                 3
        For the reasons stated by the circuit court in its order, we concur with its findings that
petitioner’s ineffective assistance claims were largely based on issues either raised in his first
habeas proceeding or should have been raised with reasonable diligence and, to the extent that the
claims were not barred by the doctrine of res judicata,3 they were matters of strategy rather than
deficient performance.

         Furthermore, we agree with respondent’s position that, even if habeas counsel and habeas
appellate counsel were deficient in some way, petitioner did not suffer any prejudice. In Slater I,
we rejected petitioner’s challenges to his kidnaping and burglary convictions, finding that there
was sufficient evidence that he committed those offenses. 222 W.Va. at 505-06, 665 S.E.2d at
680-81. In Slater II, we affirmed the denial of habeas relief in the first such proceeding—including
the ruling that petitioner’s trial attorney was not ineffective—finding that his criminal conduct had
been “egregious.” 2013 WL 5418574, at *8; see also Slater I, 222 W.Va. at 510, 665 S.E.2d at 685
(Starcher, J., dissenting) (stating that “[t]he facts of this case alone are such that it gives one pause
to dissent to the majority opinion”). Finally, we find that petitioner both disputes the accuracy of
the trial transcript despite the court reporter’s certificate that it is “a true and correct transcript” of
the underlying criminal proceedings and also makes allegations that are contrary to previously
made findings.4 Accordingly, based on our review of the record, we find that any alleged deficient
performance on the part of habeas counsel or habeas appellate counsel did not change the result of
the previous proceeding and appeal.

       We find that the circuit court properly determined that no need existed for a hearing or
appointment of counsel before it denied habeas relief. As we held in syllabus point 3 of Anstey:

                “‘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

        3
            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[.]
        4
        We give two examples of petitioner making allegations that are contrary to previously
made findings. Petitioner states that he did not hit his girlfriend with a hammer and cause a bruise
on her leg. However, petitioner acknowledged in Slater I that he caused “minor bruises to [the
victim’s] face and leg.” 222 W.Va. at 507, 665 S.E.2d at 682. Petitioner further alleges that law
enforcement officers tampered with the evidence at the scene, including a phone, but, in Slater II,
we found that petitioner “grabbed the phone and broke it.” 2013 WL 5418574, at *4.

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       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).”

237 W.Va. at 412, 787 S.E.2d at 866.

        Therefore, we conclude that the circuit court did not abuse its discretion in denying
petitioner’s second and third habeas petitions. Because we find no error in the circuit court’s order,
we deny petitioner’s motion for appointment of appellate counsel. Having reviewed the April 17,
2017, “Final Order Denying Petitions for Writ of Habeas Corpus,” we hereby adopt and
incorporate the circuit court’s well-reasoned findings and conclusions as to all of the assignments
of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to
this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 29, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating.




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