                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Tex H.,                                                                             FILED
Petitioner Below, Petitioner                                                     June 17, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 18-0016 (Fayette County 17-C-330)                                           OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Tex H.,1 pro se, appeals the December 11, 2017, order of the Circuit Court of
Fayette County dismissing his petition for a writ of habeas corpus and denying his motion for
appointment of counsel, motion for discovery, and motion to disqualify the presiding judge.
Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex,2 by counsel Caleb
A. Ellis, filed a 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. 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
        Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.


                                                  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 of
incarceration for an aggregate sentence of 199 to 480 years. On November 17, 2005, this Court
refused petitioner’s criminal appeal.

        Petitioner has filed five petitions for a writ of habeas corpus. Petitioner’s first petition was
dismissed without a hearing by order entered November 16, 2006. On December 14, 2006,
petitioner filed a motion for appointment of counsel for purposes of appealing the circuit court’s
November 16, 2006, order. However, petitioner’s motion was not filed in his first habeas
proceeding, but in the underlying criminal case. The circuit court entered a December 26, 2006,
order appointing petitioner an attorney in the criminal case. The circuit court appointed an attorney
to represent petitioner not in an appeal of the November 16, 2006, dismissal, but in a “habeas
corpus” proceeding “before this [c]ourt.” Subsequently, petitioner pro se filed his second habeas
petition on November 19, 2007, and the same attorney was reappointed as habeas counsel for
petitioner in that proceeding.

          Petitioner received a hearing in his second habeas proceeding, during which he submitted
a Losh checklist on May 28, 2008. 4 At a February 11, 2009, evidentiary hearing, petitioner’s
attorney listed the issues that petitioner wanted the circuit court to consider. Petitioner’s habeas
attorney introduced the deposition testimony of his trial attorney into evidence and petitioner
testified as to his allegations that trial counsel provided ineffective assistance. S.L.M. was also
called as a witness by petitioner regarding a prior alleged recantation of her trial testimony. By
order entered October 23, 2009, the circuit court denied petitioner’s second habeas petition. The
circuit court 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.” The circuit court deemed all issues not raised in petitioner’s amended habeas petition or
the Losh checklist “intentionally, knowingly[,] and voluntarily waived.” Petitioner appealed the
October 23, 2009, denial of habeas relief; however, this Court refused his appeal by order entered
September 9, 2010.

        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 (“Tex
H. I”), No. 101437, 2012 WL 2988769 (W.Va. Mar. 12, 2012) (memorandum decision), in which
this Court affirmed the circuit court’s October 10, 2010, order.



       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.
       4
         In Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we
compiled a non-exclusive list of potential grounds that a circuit court should address with a habeas
petitioner as to whether each ground was being either waived or raised in the proceeding.
                                                   2
       Petitioner filed a fourth habeas petition on November 19, 2015, which the circuit court
dismissed on December 23, 2015. Petitioner appealed the dismissal of that petition in Tex H. v.
Ballard (“Tex H. II”), No. 16-0033, 2017 WL 1102791 (W.Va. Mar. 24, 2017) (memorandum
decision). This Court affirmed the dismissal of petitioner’s fourth habeas petition, finding that “his
second habeas proceeding qualifie[d] as an omnibus habeas corpus proceeding under . . . Losh [v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981)].” Id. at *5.

        Petitioner filed the instant habeas petition on November 14, 2017. To overcome the
doctrine of res judicata, as set forth in syllabus point two of Losh,5 petitioner argued that the
attorney who represented him in the second habeas proceeding was actually appointed to appeal
the dismissal of his first petition and the attorney’s failure to appeal the prior dismissal tainted the
second proceeding with unfairness. Petitioner further argued that the judge who presided in all of
his habeas proceedings, including the instant one, was prejudiced against him. Accordingly,
petitioner filed a motion to disqualify the judge in addition to motions for appointment of counsel
and discovery. By order entered December 11, 2017, the circuit court rejected petitioner’s claims,
dismissed the instant petition, and denied the various motions, including the motion for the judge’s
disqualification.

        It is from the circuit court’s December 11, 2017, order dismissing his habeas petition that
petitioner now appeals. In syllabus points one and three of Anstey v. Ballard, 237 W.Va. 411, 787
S.E.2d 864 (2016), we held:

          1.      “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).

          ****


5
    In syllabus point two of Losh, we held:

                           A judgment denying relief in post-conviction habeas corpus
                  is res judicata on questions of fact or law which have been fully and
                  finally litigated and decided, and as to issues which with reasonable
                  diligence should have been known but were not raised, and this
                  occurs where there has been an omnibus habeas corpus hearing at
                  which the applicant for habeas corpus was represented by counsel
                  or appeared pro se having knowingly and intelligently waived his
                  right to counsel.

166 W.Va. at 762, 277 S.E.2d at 608.

                                                   3
       3.      “‘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).

In syllabus point four of Losh, 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;
       newly discovered evidence; or, a change in the law, favorable to the applicant,
       which may be applied retroactively.

166 W.Va. at 762-63, 277 S.E.2d at 608.

        On appeal, petitioner raises a multitude of issues. Respondent counters that petitioner
raised only two issues before the circuit court: (1) his habeas attorney’s failure to appeal the
dismissal of his first habeas petition after allegedly being appointed to do so; and (2) the alleged
prejudice of the presiding judge necessitating the judge’s disqualification. Upon our review of the
instant petition, we agree with respondent’s characterization and will address only those issues
petitioner raised before the circuit court. See Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522,
102 S.E.2d 733 (1958) (holding that we “will not pass on a non[-]jurisdictional question which has
not been decided by the trial court in the first instance”).

        Petitioner argues that the attorney who represented him in the second habeas proceeding
was actually appointed to appeal the dismissal of his first petition and failed to do so. 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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (adopting Strickland).6
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.” Id. at 6-7, 459
S.E.2d at 117-18, syl. pt. 6.

           In rejecting this ground for relief, the circuit court found that there was no appointment of

       6
        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).
                                                    4
appellate counsel in the first habeas proceeding. Upon review of the record, we agree and find that
petitioner’s motion was not filed in his first habeas proceeding, but in the underlying criminal case.
In the circuit court’s December 26, 2006, order, also entered in the criminal case, the court
appointed counsel not to represent petitioner in an appeal of the November 16, 2006, dismissal,
but in a “habeas corpus” proceeding “before this [c]ourt.” We find that, based on the record,
petitioner’s habeas attorney believed that he was appointed to file an amended petition in the first
proceeding and did not learn that the first petition had been dismissed until a later date. Thereafter,
the same attorney was also appointed to represent petitioner in the second habeas proceeding.

         This Court has consistently declined to review some issues such as ineffective assistance
of counsel if they are not first factually developed in a habeas proceeding. See Losh, 166 W.Va. at
767, 277 S.E.2d at 610 (finding that certain issues, “such as incompetency of counsel, of which
[the inmate] would have been unaware at trial, must be litigated in a collateral proceeding”); Syl.
Pt. 10, in part, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992) (holding that “[t]he prudent
defense counsel first develops the record regarding ineffective assistance of counsel in a habeas
corpus proceeding before the lower court, and may then appeal if such relief is denied”). In the
second proceeding, the habeas attorney developed the issue of ineffective assistance of trial
counsel by introducing the deposition testimony of petitioner’s trial attorney into evidence and by
presenting petitioner’s testimony. Consequently, respondent argues that, assuming arguendo the
habeas attorney misunderstood the nature of his original appointment, it did not prejudice
petitioner. We agree. As we found in Tex H. II, petitioner’s second proceeding met the standards
for an omnibus habeas proceeding: an evidentiary hearing and effective assistance of counsel. 2017
WL 1102791, at *3-5. In addition, after the denial of habeas relief in the second proceeding, a
different attorney represented petitioner on appeal. In Tex H. I, we rejected petitioner’s contention
that both his habeas trial counsel and his habeas appellate counsel were ineffective. 2012 WL
2988769, at *2. Therefore, given that petitioner cannot show that he was prejudiced from the lack
of an appeal in his first habeas proceeding, we find that the circuit court properly rejected this
ground for relief.

        We further find that we addressed petitioner’s allegations of bias against the presiding
judge in Tex H. II wherein we found “insufficient evidence to warrant [the judge]’s
disqualification.” 2017 WL 1102791, at *3 n.7. Respondent argues that petitioner presents no new
allegations and that petitioner’s disagreement with the judge’s substantive rulings constitute an
insufficient basis on which to disqualify the judge. See State v. Brown, 177 W.Va. 633, 641, 355
S.E.2d 614, 622 (1987) (finding that there was no reason to question the trial judge’s impartiality
and that the judge’s “rulings on the appellant’s pretrial motions had a reasonable basis in law”).
We agree with respondent and find that the circuit court properly rejected this ground for relief.
Similarly, assuming arguendo that the judge should have transmitted petitioner’s motion for
disqualification to this Court for a ruling by the Chief Justice pursuant to West Virginia Trial Court
Rule 17.01(b), the fact that the judge denied the motion himself constituted harmless error. See
Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W.Va. 762, 773, 724 S.E.2d
733, 744 (2012) (finding 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 judge’s
disqualification).

                                                  5
         Finally, we find that the circuit court properly denied petitioner’s motion for appointment
of counsel and his motion for discovery because the court was able to render a decision based on
“the petition, exhibits, affidavits[, and] other documentary evidence filed therewith.” Syl. Pt. 3,
Anstey, 237 W.Va. at 412, 787 S.E.2d at 866 (Internal quotations and citations omitted.); see Syl.
Pt. 3, State ex rel. Parsons v. Zakaib, 207 W.Va. 385, 532 S.E.2d 654 (2000) (holding that
discovery in a habeas proceeding is at the court’s discretion). Therefore, we conclude that the
circuit court did not err in dismissing petitioner’s habeas petition and denying his various motions.

        For the foregoing reasons, we affirm the circuit court’s December 11, 2017, order
dismissing petitioner’s petition for a writ of habeas corpus and denying his motion for appointment
of counsel, motion for discovery, and motion to disqualify the presiding judge.

                                                                                         Affirmed.


ISSUED: June 17, 2019

CONCURRED IN BY:

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




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