                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



                                                                                  FILED
William S.,
                                                                            September 23, 2016
Petitioner Below, Petitioner                                                     RORY L. PERRY II, CLERK

                                                                               SUPREME COURT OF APPEALS

vs) No. 15-1175 (Mercer County 15-C-221)                                           OF WEST VIRGINIA




David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner William S.,1 pro se, appeals the June 22, 2015, order of the Circuit Court of
Mercer County denying his petition for a writ of habeas corpus. Respondent David Ballard,
Warden, Mt. Olive Correctional Complex, by counsel Zachary Aaron Viglianco, filed a summary
response, and 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 2003, petitioner was found guilty of thirty-two counts of first degree sexual abuse and
sixteen counts of sexual abuse by a custodian. The circuit court sentenced petitioner to consecutive
terms of one to five years of incarceration for each of the first degree sexual abuse convictions and
ten to twenty years of incarceration for each of the sexual abuse by a custodian convictions for a
total of fifty-two to two hundred years of incarceration. Petitioner appealed his convictions to this
       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).


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Court. That appeal was refused on April 28, 2004, in Case No. 032689.

       Subsequent to the refusal of petitioner’s criminal appeal, he filed four petitions for a writ of
habeas corpus. In petitioner’s first habeas proceeding, he was appointed counsel and an omnibus
hearing was held on October 31, 2008. The circuit court denied that habeas petition on February 6,
2009. Petitioner appealed the circuit court’s February 6, 2009, order to this Court which refused
his appeal on November 12, 2009 in Case No. 091235.

       In his second habeas proceeding, petitioner alleged that counsel in his first habeas
proceeding was ineffective. The circuit court appointed petitioner counsel and held an evidentiary
hearing on November 8, 2011. In an order entered November 16, 2011, the circuit court
determined that counsel was not ineffective in the first habeas proceeding and denied petitioner’s
second petition. In State ex rel. William S. v. Ballard, No. 11-1640, 2013 WL 149606, at *2
(W.Va. January 14, 2013) (memorandum decision), this Court affirmed the November 16, 2011,
order denying habeas relief.

       In petitioner’s third habeas proceeding, his petition was denied by the circuit court’s May
21, 2013, order which was not appealed.

        Petitioner filed his instant habeas petition on June 15, 2015, alleging (1) ineffective
assistance of habeas counsel; and (2) a change in the law, favorable to petitioner, regarding
ineffective assistance of counsel during plea negotiations. On June 22, 2015, the circuit court
denied petitioner’s habeas petition on the ground that it was barred by the doctrine of res judicata.
The circuit court found that petitioner “raised grounds which were raised in the prior proceeding[s]
or which with reasonable diligence could have been known and raised.”

        On December 2, 2015, petitioner appealed the circuit court’s June 22, 2015, order denying
his habeas petition.2 On April 21, 2016, respondent filed both a summary response and a motion to
file a supplemental appendix containing a transcript of a March 14, 2003, status hearing in
petitioner’s criminal case. By order entered June 2, 2016, we denied the motion to file a
supplemental appendix, but, instead, took judicial notice of the March 14, 2003, hearing transcript.

       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.

       2
          By a scheduling order, entered January 7, 2016, this Court granted a motion by petitioner
to file his notice of appeal out-of-time.

                                                  2
Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). In Syllabus Point 4 of Losh
v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we 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: (1) ineffective assistance of counsel at the omnibus habeas corpus
       hearing; (2) newly discovered evidence; (3) or, a change in the law, favorable to the
       applicant, which may be applied retroactively.

         On appeal, petitioner argues that the doctrine of res judicata does not bar him from filing
his instant habeas petition because he received ineffective assistance of counsel in his prior habeas
proceedings and because there has been a change in the law that is favorable to him. With regard to
the ineffective assistance of habeas counsel, petitioner avers that his habeas counsel failed to raise
the issue of ineffective assistance of trial counsel during plea negotiations. Petitioner states that,
prior to his criminal trial, the State offered him a plea bargain pursuant to which he would plead
guilty to a single count of sexual abuse by a custodian which carried a sentence of ten to twenty
years of incarceration. Petitioner alleges that he refused the plea offer upon the erroneous advice of
his trial counsel. Petitioner asserts that, at the time of his prior habeas proceedings, this Court had
already held that there could be ineffective assistance within the context of plea negotiations. See
Becton v. Hun, 205 W.Va. 139, 142-45, 516 S.E.2d 762, 765-68 (1999) (applying
Miller/Strickland standard to counsel’s failure to inform defendant of plea offer).3

        Petitioner next contends that the decisions in Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376,
182 L.Ed.2d 398 (2012), and Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d 379
(2012), represent a change in the applicable federal law that is favorable to him. Respondent
counters that the Becton, Lafler, and Frye decisions are distinguishable from the facts of
petitioner’s case. Respondent asserts that the March 14, 2003, hearing transcript reflects that
petitioner’s trial counsel not only communicated the State’s plea offer to petitioner, but also clearly
advised petitioner to seriously consider it.

       3
           In Syllabus Point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we held, as
follows:

                         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.


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       According to the March 14, 2003, transcript, petitioner’s counsel requested that the circuit
court confirm with petitioner that “he does not, in fact, wish to accept a plea[.]”4 Petitioner’s
counsel explained, as follows:

       [COUNSEL]: . . . I would represent to the Court that I have had conversations, this
       morning, with [the assistant prosecutor], and the State has offered [petitioner] a
       plea to a single count of abuse by a guardian or custodian which would carry a
       sentence of ten to twenty years, and [petitioner] has indicated that he does not wish
       to accept that plea—and wants to take the matter to trial, and I have advised him,
       certainly, of the various options and . . . recommended that he seriously consider
       that offer, . . . and I simply wanted [petitioner] the opportunity to affirm that on the
       record.

Thereafter, the circuit court made the following inquiries of the parties:

       THE COURT: Mr. Prosecutor, . . . is that the offer made by your office?

       [PROSECUTOR]: Yes, Your Honor.

       THE COURT: And that was communicated to you, [petitioner]?

       [PETITIONER]: Yeah.

       THE COURT: And you have rejected that [offer]?

       [PETITIONER]: Yeah.

       THE COURT: Anything else?

       [COUNSEL]: No, sir.

        We find that the March 14, 2003, hearing transcript confirms that petitioner’s trial counsel
both communicated the State’s plea offer to petitioner and clearly advised him to seriously
consider it, distinguishing petitioner’s case from the Becton, Lafler, and Frye cases. Therefore, we
find that no exception to the doctrine of res judicata applies to petitioner’s case and conclude that
the circuit court did not abuse its discretion in denying petitioner’s habeas petition.



       4
        In requesting that the circuit court confirm that petitioner did not want to accept the State’s
plea offer, petitioner’s trial counsel noted that petitioner was found competent following a
psychological evaluation.

                                                  4
For the foregoing reasons, we affirm the circuit court’s June 22, 2015, order denying petitioner’s
petition for a writ of habeas corpus.

                                                                                       Affirmed.

ISSUED: September 23, 2016

CONCURRED IN BY:

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




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