                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Tex H.,
Petitioner Below, Petitioner                                                      FILED
                                                                              March 24, 2017
vs) No. 16-0033 (Fayette County 15-C-306-H)                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Tex H.,1 pro se, appeals the December 23, 2015, order of the Circuit Court of
Fayette County dismissing his petition for a writ of habeas corpus. David Ballard, Warden, Mount
Olive Correctional Complex, by counsel Zachary Aaron Viglianco, filed a summary 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.2 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.


       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
        On September 15, 2016, petitioner filed a motion to supplement the record with various
documents. We grant, in part, and deny, in part, the motion and order the record supplemented
with the circuit court’s October 23, 2009, order denying petitioner’s petition for a writ of habeas
corpus and the transcript of the February 11, 2009, habeas corpus hearing in Fayette County
Circuit Case No. 07-C-439.


                                                1
         In November of 2004, petitioner was convicted in the Circuit Court of Fayette County of
eight counts of incest, eight counts of sexual abuse in the second degree, and eight counts of sexual
abuse by a parent or custodian. The victim was petitioner’s step-granddaughter, S.L.M., who
testified against him at trial.3 The circuit court sentenced petitioner to consecutive terms for an
aggregate sentence 199 to 480 years in prison.

        In January of 2005, petitioner filed a motion for new trial asserting that S.L.M. wanted to
recant her testimony. On February 7, 2005, S.L.M. executed an affidavit stating that she lied at trial
and petitioner did not commit sexual offenses against her. After a hearing, the circuit court denied
the motion for new trial. Following the denial of petitioner’s motion for a new trial, he appealed his
convictions to this Court and argued that the circuit court committed reversible error in refusing to
hear S.L.M.’s recantation. On November 17, 2005, this Court refused petitioner’s criminal appeal.

        Petitioner has filed four petitions for a writ of habeas corpus. Petitioner received a hearing
and appointment of counsel in his second habeas proceeding. On February 11, 2009, at the
beginning of the hearing, petitioner’s attorney listed the issues that petitioner wanted the circuit
court to consider. Next, petitioner’s habeas attorney began presentation of petitioner’s case by
introducing the deposition testimony of his trial attorney into evidence. Petitioner’s attorney also
called S.L.M. as a witness and, in the first part of her testimony, introduced into evidence three
exhibits regarding S.L.M.’s recantation: (1) S.L.M.’s February 7, 2005, affidavit stating that she
lied at trial and petitioner did not commit sexual offenses against her; (2) a 2005 letter S.L.M.
wrote petitioner in prison apologizing for her trial testimony; and (3) a statement provided by
S.L.M. to the police, transcribed in 2006, in which she also recanted her trial testimony. When the
February 7, 2005, affidavit was introduced into evidence, S.L.M. testified that she signed the
affidavit of her own “free will” and that, when she was asked by the police if she was being
threatened to change her testimony, she answered, “no.”

        However, following the admission of the three exhibits, S.L.M. testified that her trial
testimony was truthful, that petitioner did commit the sexual offenses, that she lied in both the
affidavit and the police statement, and that she signed the false affidavit because her aunt paid her
$2,000 to do so. At the conclusion of S.L.M.’s testimony, petitioner’s attorney accepted the circuit
court’s offer to confer with petitioner in private. After that conference, petitioner’s attorney called
petitioner as a witness to testify regarding his allegations that his trial counsel was ineffective.

         By order entered October 23, 2009, the circuit court denied petitioner’s request for habeas
relief. First, the circuit court found that S.L.M.’s trial testimony was “clear, unequivocal, true[,]
and accurate” and that, during the February 11, 2009, hearing, she “clearly and unequivocally,
fully and convincingly, disavowed” her subsequent recantation of that testimony. The circuit court
further found that “substantial” evidence was presented at trial, “upon which an impartial jury of
twelve adults could and did justifiably find . . . [p]etitioner guilty beyond a reasonable doubt of all
crimes,” of which he was convicted. The circuit court also rejected petitioner’s allegations of

       3
         At a February 11, 2009, habeas corpus hearing, S.L.M. testified that she was twelve or
thirteen years old when the alleged conduct occurred.

                                                  2
ineffective assistance of counsel. The circuit court specifically found that the grounds for habeas
relief raised in petitioner’s May 28, 2008, Losh checklist “fail[ed] to rise to the requisite
constitutional dimension to be sufficient habeas corpus relief.”4 Finally, the circuit court deemed
all issues not raised in petitioner’s amended habeas petition or the Losh checklist “intentionally,
knowingly[,] and voluntarily waived.”

        On November 19, 2015, petitioner filed the instant habeas petition on the ground that he
was innocent of the alleged offenses against S.L.M.5 Petitioner based his claim of innocence on
the following grounds: (1) the circuit court failed to provide petitioner with due process of law in
his second habeas proceeding; (2) petitioner’s habeas attorney failed to provide effective
assistance in that proceeding; and (3) at trial, the State failed to disclose exculpatory evidence in
the form of a diary alleged authored by S.L.M. and evidence regarding “a mentally challenged
adult female”—in whose case petitioner was accused, but not indicted. The circuit court dismissed
the petition on December 23, 2015, finding that “[p]etitioner has . . . exhausted all of his available
post-conviction judicial remedies” because “[p]etitioner, with counsel, has already failed in an
[o]mnibus [h]abeas [c]orpus 2009 hearing” in an application of the doctrine of res judicata
pursuant to syllabus point four of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

        Petitioner now appeals the circuit court’s December 23, 2015, order dismissing his habeas
petition. 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).

        On appeal, petitioner raises twenty-three issues. “This Court will not pass on a
non[-]jurisdictional question which has not been decided by the trial court in the first instance.”
Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958). Accordingly, we
address only those issues raised in the instant habeas petition before the circuit court, plus
petitioner’s contention that the circuit court failed to make findings adequate to support the
dismissal of that petition. Respondent asserts that none of petitioner’s issues have merit. We agree.


       4
           See Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).
       5
        Petitioner filed a third habeas petition on October 8, 2010, which the circuit court
dismissed on October 10, 2010. Petitioner appealed the dismissal of that petition in [Tex H.] v.
Ballard, No. 101437, at 3 (W.Va. Supreme Court, March 12, 2012) (memorandum decision), in
which this Court affirmed the circuit court’s October 10, 2010, order.


                                                  3
        As an initial matter, petitioner contends that his second habeas proceeding was not
conducted fairly. See State ex rel. Peck v. Goshorn, 162 W.Va. 420, 422, 249 S.E.2d 765, 766
(1978) (finding that concept of fundamental fairness is synonymous with due process of law).
Based on our review of the circuit court’s October 23, 2009, order and the transcript of the
February 11, 2009, hearing, we find that petitioner’s second habeas proceeding was fundamentally
fair.6 First, the circuit court acted in accordance with syllabus point two of Losh, pursuant to which
an omnibus habeas corpus proceeding is generally comprised of (1) appointment of counsel; and
(2) an evidentiary hearing. 166 W.Va. at 762, 277 S.E.2d at 608. Next, at the February 11, 2009,
hearing, the circuit court heard argument by petitioner’s habeas attorney regarding the existence of
exculpatory evidence and the attorney’s statement that prosecutorial misconduct was an issue “set
forth in . . . the amended [habeas] petition.” In response, respondent’s attorney argued that there
was “no evidence [that] the State had any reason to have any knowledge of [S.L.M.’s] recantation
prior to trial.” Thus, the substantive issue present in petitioner’s instant habeas petition—whether
the State improperly withheld exculpatory evidence—was addressed in his second habeas
proceeding. Lastly, the circuit court’s October 23, 2009, order reflects that it addressed the two
issues on which petitioner presented witness testimony (S.L.M.’s recantation and ineffective
assistance of trial counsel) and every other issue raised in petitioner’s pleadings in the second
habeas proceeding. Therefore, we reject petitioner’s assignment of error that the circuit court
failed to provide him with due process of law in that proceeding.7

        As his second issue, petitioner contends that his attorney in the second habeas proceeding
failed to provide effective assistance. That a habeas petitioner is entitled to effective assistance is
evident in our holding in syllabus point 4 of Losh, which provides that the doctrine of res judicata
generally bars subsequent petitions:


       6
     We note that petitioner was due a fair proceeding, not a perfect one. See Sprouse v. Clay
Communication, Inc., 158 W.Va. 427, 464, 211 S.E.2d 674, 698 (1975).
       7
         Petitioner notes that, in both his third habeas proceeding and the instant proceeding, he
filed motions for the disqualification of The Honorable John W. Hatcher, Jr., from presiding in his
case. In the instant habeas proceeding, the Chief Justice denied petitioner’s motion for
disqualification of Judge Hatcher and directed the judge to continue presiding in this case by an
administrative order entered on December 21, 2015. The motion for disqualification filed by
petitioner in his third habeas proceeding was never ruled upon due to an apparent oversight.
However, petitioner contends that the lack of a ruling on that prior motion tainted every
subsequent proceeding with procedural unfairness. We disagree. In Shenandoah Sales & Service,
Inc. v. Assessor of Jefferson County, 228 W.Va. 762, 773, 724 S.E.2d 733, 744 (2012), we found
that a failure to follow proper procedure in ruling on a motion for disqualification was harmless
error when there is insufficient evidence to warrant the circuit judge’s disqualification. In the
instant case, as reflected in the Chief Justice’s December 21, 2015, administrative order, there was
insufficient evidence to warrant Judge Hatcher’s disqualification. Therefore, we conclude that the
lack of a ruling on the motion for disqualification filed by petitioner in his third habeas proceeding
was harmless and did not taint every proceeding that came after it.

                                                  4
               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 . .
       .

166 W.Va. at 762-63, 277 S.E.2d at 608 (emphasis added).

        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): (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. Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
Moreover, “[i]n 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.” Miller, 194 W.Va.
at 6-7, 459 S.E.2d at 117-18, syl. pt. 6, in part.

        Regarding the alleged exculpatory evidence referred to in petitioner’s petition, he contends
that his habeas attorney knew of the diary allegedly authored by S.L.M. and should have
introduced it into evidence at the February 11, 2009, hearing. However, we find that any decision
to forego introducing the diary into evidence was a strategic choice that petitioner’s habeas
attorney was entitled to make. While petitioner claims that the diary was authored by S.L.M., he
admits that it never has been authenticated as such. It is not unreasonable to assume that
respondent’s attorney would have objected to the diary’s admission on that ground depending on
S.L.M.’s response to any question about it. On the other hand, S.L.M. readily admitted that she
signed the February 7, 2005, affidavit, wrote the 2005 letter to petitioner in prison, and provided
the statement that was transcribed in 2006. Thus, petitioner’s attorney previously showed that
S.L.M. recanted her trial testimony that petitioner committed sexual offenses against her.
Therefore, in addition to the question of the diary’s authenticity, it would have been duplicative of
what was already established at the hearing. Accordingly, we conclude that petitioner’s habeas
attorney’s failure to introduce the diary allegedly authored by S.L.M. was not ineffective
assistance.8

       8
         Although the record is not clear, it appears that the other evidence claimed as exculpatory
in petitioner’s instant habeas petition—evidence regarding “a mentally challenged adult female”
whom petitioner was accused of sexually abusing—was presented at trial in this case pursuant to
Rule 404(b) of the West Virginia Rules of Evidence regarding prior bad acts. Petitioner assigns no
error to that evidence’s admission as such. Rather, petitioner contends that the State should have
been required to inform the jury that, when those accusations were presented to the grand jury,
petitioner was not indicted for any offense against the other female. We reject this argument for
two reasons. First, the argument constitutes a misapplication of Brady v. Maryland, 373 U.S. 83,
87 (1963), which held that the prosecution has an obligation to produce exculpatory material to the
(continued . . .)
                                                 5
        Petitioner also complains that his habeas attorney was unprepared when S.L.M. reaffirmed
the truth of her trial testimony that petitioner molested her. However, we find that petitioner is
relying on hindsight to argue his attorney was ineffective in calling S.L.M. as a witness, which
argument is not allowed under the Strickland/Miller standard. First, we find that, earlier in her
testimony, S.L.M. gave no indication that she was about to disavow the recantation of her trial
testimony because S.L.M. testified that she signed the February 7, 2005, affidavit of her own “free
will” and that, when she was asked by the police if she was being threatened to change her
testimony, she answered, “no.” Second, we find that petitioner’s habeas attorney prepared for
S.L.M’s testimony at the February 11, 2009, hearing by deposing his trial attorney. As petitioner’s
habeas attorney argued—and S.L.M testified—she approached his trial attorney when she wanted
to recant her testimony following trial. Thus, we find that petitioner’s habeas attorney prepared for
S.L.M.’s testimony and was not ineffective in calling her. It was just that S.L.M.’s eventual
disavowal of her recantation was unexpected, evidenced by the circuit court’s observation that it
had “no idea” that S.L.M.’s testimony would unfold as it did. Therefore, we reject petitioner’s
contention that his habeas attorney failed to provide effective assistance in his second habeas
proceeding.

        Given that petitioner was provided with both due process of law and effective assistance of
counsel, we find that his second habeas proceeding qualifies as an omnibus habeas corpus
proceeding under syllabus point two of Losh. Accordingly, we find that the circuit court’s finding
that the doctrine of res judicata bars the instant petition given his “[o]mnibus [h]abeas [c]orpus
2009 hearing” is adequate to sustain the petition’s dismissal. Therefore, we conclude that the
circuit court did not abuse its discretion in dismissing petitioner’s instant habeas petition.

       For the foregoing reasons, we affirm the circuit court’s December 23, 2015, order
dismissing petitioner’s petition for a writ of habeas corpus.

                                                                                          Affirmed.

ISSUED: March 24, 2017

CONCURRED IN BY:

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



defense. Second, we disagree with petitioner that the jury in this case would have been any less
likely to convict him had it known that he was not indicted on similar charges regarding “a
mentally challenged adult female.”

                                                 6
