                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Troy G.,                                                                             FILED
Petitioner Below, Petitioner                                                       January 14, 2013
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 11-0959 (Logan County 05-C-357 & 05-C-371)                                OF WEST VIRGINIA



David Ballard, Warden,
Respondent Below, Respondent

                                  MEMORANDUM DECISION

       Petitioner G.’s1 appeal, filed by counsel D. Adrian Hoosier II, arises from the Circuit
Court of Logan County, wherein petitioner’s third petition for writ of habeas corpus was denied
by order entered on May 12, 2011. Respondent Ballard2, by counsel C. Casey Forbes, filed a
response, along with a supplemental appendix, in support of the circuit court’s decision.

       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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

         In March of 1996, a jury found petitioner guilty of fifty-seven counts of various sexual
offenses. At sentencing, the trial court ordered petitioner to serve forty to one hundred years in
prison. Following sentencing, petitioner filed a direct appeal of his convictions, which this Court
refused. Petitioner subsequently filed his first petition for writ of habeas corpus in 1997. Without
an omnibus evidentiary hearing, the first habeas court denied petitioner’s petition. This Court
refused the appeal. In 2000, petitioner filed his second petition for writ of habeas corpus in
circuit court. After holding an omnibus evidentiary hearing, the second habeas court denied
petitioner habeas corpus relief in its fifteen-page order. Petitioner filed his third petition for writ
of habeas corpus in November of 2005. The third habeas court denied petitioner habeas corpus
relief in its May of 2011 order, from which petitioner now appeals.


1
  Because the victim in the underlying case is related to petitioner and was a minor at the time of
the sexual offenses, we follow our traditional practice in cases involving sensitive facts and use
only petitioner’s last initial. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d
123, 127 n.1 (1990).
2
  Pursuant to Rule 41(c) of the West Virginia Revised Rules of Appellate Procedure, we have
replaced the respondent party’s name with Warden David Ballard. The initial respondent on
appeal, Thomas McBride, is no longer the warden at Mount Olive Correctional Complex.

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       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).

       We also bear in mind the following:

       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.

Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

        On appeal, petitioner argues that the third habeas court erred in failing to make findings
of fact and conclusions of law concerning his allegation of ineffective habeas counsel from his
first habeas petition. Respondent Ballard responds that the third habeas court found that
petitioner’s arguments concerning ineffective habeas counsel were previously addressed by the
circuit court in petitioner’s prior petitions for writ of habeas corpus. We agree and find no abuse
of discretion or error by the third habeas court. A review of the record reflects that the second
habeas court made findings and conclusions as to petitioner’s claim that he was denied effective
assistance of habeas counsel for his first petition.

        Petitioner also argues that the third habeas court erred in denying him habeas corpus
relief by failing to make findings of fact concerning his contention that he was denied due
process at the grand jury proceedings. Petitioner argues that the grand jury in his underlying
criminal matter consisted of only fifteen members, rather than the requisite number of sixteen
members. In response, Respondent Ballard argues that the instant habeas court did not err with
regard to addressing this issue because it found that petitioner waived any issues he did not raise
in his two previous habeas corpus petitions and further, this issue is not constitutional in nature
and is not subject to review in a habeas proceeding. Nevertheless, respondent argues that even if
this issue is reviewed, there was no error by the trial court because Rule 6(a) of the West
Virginia Rules of Criminal Procedure explains that “[t]he grand jury shall consist of 16
members, but any fifteen or more members attending shall constitute a quorum.” Our review of
the record reflects no error or abuse of discretion by the instant habeas court with regard to this
issue.




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        Lastly, petitioner argues that the third habeas court erred in denying petitioner habeas
corpus relief based on newly discovered evidence. In particular, petitioner argues that affidavits
given by two witnesses contain information that would have dramatically changed the outcome
of his trial by changing the number of counts for which he was convicted. Respondent Ballard
responds that the habeas court made findings and conclusions that these affidavits contained
material that was available to petitioner before or at the time of trial and do not constitute newly
discovered evidence. Moreover, the Court has held as follows:

       “‘A new trial will not be granted on the ground of newly-discovered evidence
       unless the case comes within the following rules: (1) The evidence must appear to
       have been discovered since the trial, and, from the affidavit of the new witness,
       what such evidence will be, or its absence satisfactorily explained. (2) It must
       appear from facts stated in his affidavit that [defendant] was diligent in
       ascertaining and securing his evidence, and that the new evidence is such that due
       diligence would not have secured it before the verdict. (3) Such evidence must be
       new and material, and not merely cumulative; and cumulative evidence is
       additional evidence of the same kind to the same point. (4) The evidence must be
       such as ought to produce an opposite result at a second trial on the merits. (5) And
       the new trial will generally be refused when the sole object of the new evidence is
       to discredit or impeach a witness on the opposite side.’ Syllabus Point 1, Halstead
       v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).” Syllabus, State v. Frazier, 162
       W.Va. 935, 253 S.E.2d 534 (1979).

Syl. Pt. 3, In re Renewed Investigation of the State Police Crime Lab., Serology Div., 219 W.Va.
408, 633 S.E.2d 762 (2006). Respondent argues that these affidavits do not satisfy all prongs of
the five-part test, and therefore, even if they did constitute newly discovered evidence, a new
trial would not be warranted. Our review of the record uncovers no error by the circuit court in
denying habeas corpus relief to petitioner based on this argument. Having reviewed the circuit
court’s “Order” entered on May 12, 2011, we hereby adopt and incorporate the circuit court’s
well-reasoned findings and conclusions as to the assignments of error raised in this appeal.3 The
Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm the circuit court’s decision denying habeas
corpus relief.


                                                                                         Affirmed.




3
 Consistent with our explanation in the first footnote of this memorandum decision, the parties’
names in the circuit court order have been redacted to leave only their initials.


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ISSUED: January 14, 2013

CONCURRED IN BY:

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




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