                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Angela Dawn Miller,
Petitioner Below, Petitioner
                                                                                     FILED
vs.)   No. 18-1001 (Wyoming County 17-C-96)                                       June 3, 2020
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
J.D. Sallaz, Superintendent, Lakin                                                 OF WEST VIRGINIA
Correctional Center,
Respondent Below, Respondent



                               MEMORANDUM DECISION


         Petitioner Angela Dawn Miller, self-represented, appeals the October 11, 2018, order of
the Circuit Court of Wyoming County denying her fourth petition for a writ of habeas corpus.
Respondent J.D. Sallaz, Superintendent, Lakin Correctional Center, by counsel Caleb A. Ellis,
filed a summary response in support of the circuit court’s order.

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

        In August of 1994, petitioner was convicted in the Circuit Court of Wyoming County of
first-degree murder. The circuit court sentenced petitioner to a life term of incarceration without
the possibility of parole. Petitioner appealed her conviction on several grounds, and we affirmed
in State v. Miller (“Miller I”), 197 W. Va. 588, 593, 476 S.E.2d 535, 540 (1996). Thereafter, in
2001, petitioner filed a petition for a writ of habeas corpus in the circuit court and raised twenty-
five grounds for relief, including ineffective assistance of trial counsel and insufficient evidence.
The court entered an order on January 31, 2002, dismissing twenty-four of petitioner’s asserted
grounds for relief.

        Subsequently, the circuit court held an evidentiary hearing to address the only remaining
issue, petitioner’s assertion that during deliberations, some jurors returned to the courtroom to
attempt to identify a witness. By order entered on July 19, 2002, the circuit court rejected that
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claim and denied petitioner’s habeas petition. Petitioner filed an appeal from the circuit court’s
denial of habeas relief, and this Court refused that appeal by order entered on February 26, 2004.
In 2004, petitioner filed a second habeas petition in the circuit court. By order entered on March
18, 2005, the circuit court summarily denied that habeas petition.

         Despite the denial, the circuit court appointed petitioner counsel in 2010, and counsel filed
an amended habeas petition. That petition was denied by order entered on January 21, 2014.
Petitioner sought post-judgment relief, which was denied. This Court declined to review the denial
of habeas relief in Miller v. Nohe (“Miller II”), No. 14-0482, 2015 WL 1740514 (W. Va. Apr. 13,
2015) (memorandum decision), because the appeal was untimely. In Miller II, this Court notably
remarked that “the circuit court clearly established that petitioner’s prior direct criminal appeal
and [first] habeas corpus proceeding barred further prosecution of these claims under the doctrine
of res judicata.” Id. at *2. Notwithstanding this Court’s decision in Miller II, petitioner filed a third
habeas petition in the circuit court, and the court denied that petition by order entered on June 10,
2016. Petitioner did not appeal the June 10, 2016, order.

       On June 27, 2017, petitioner filed a fourth habeas petition in the circuit court, the denial of
which is the subject of this appeal. Petitioner argued that both her first and second habeas counsel
were ineffective in failing to adequately present her claims that (1) her psychiatrist’s expert
testimony was improperly excluded at trial; (2) there was insufficient evidence to support a first-
degree murder conviction; and (3) trial counsel was ineffective. Petitioner further argued that she
had newly-discovered evidence that a juror had a familial connection with individuals having prior
experience with the criminal justice system, and the juror, therefore, should have been disqualified
from serving on the jury in petitioner’s criminal proceeding. With regard to petitioner’s assertions
concerning habeas counsel, the circuit court determined that petitioner was attempting to have “yet
another bite at the apple.” (Emphasis omitted.) The circuit court further rejected her claim of
newly-discovered evidence, in part, because it was based on speculative assertions without
evidentiary support and, in part, based on the individual juror polling conducted when the jury
returned their verdict.

       Petitioner now appeals the circuit court’s October 11, 2018, order denying her fourth
habeas petition. We review as directed in Syllabus Point 1 of Anstey v. Ballard, 237 W. Va. 411,
787 S.E.2d 864 (2016):

                “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).

However, because we have before us the denial of petitioner’s fourth habeas petition, we first
consider the application of Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606
(1981):

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               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.

        Petitioner argues that she is entitled to another habeas proceeding, with the appointment of
counsel, and an evidentiary hearing despite our finding in Miller II that the first habeas proceeding
triggered the doctrine of res judicata to bar successive petitions raising the same claims. 2015 WL
1740514, at *2. We disagree and find that although petitioner couches her first three assignments
of error as requiring the review of the effectiveness of habeas counsel, petitioner actually seeks
our review of claims that have been thoroughly considered.

        In so finding, we acknowledge that the circuit court found that petitioner re-raised three
claims under the guise of ineffective assistance of habeas counsel and adequately addressed the
application of res judicata. Based on our review of the record, we concur with the circuit court’s
findings that the sufficiency of the evidence, petitioner’s psychiatrist’s proffered testimony, and
trial counsel’s performance were previously and finally adjudicated in petitioner’s first habeas
proceeding. We further concur with the circuit court’s findings that petitioner’s disagreement with
its prior rulings did not indicate that habeas counsel was ineffective and that, instead, petitioner
attempted to have “another bite at the apple.” (Emphasis omitted). Given our determination in
Miller II that petitioner’s first habeas proceeding constituted a full and fair opportunity to raise
claims not asserted in Miller I, we find that petitioner is not entitled to another such proceeding.
See White v. Haines, 215 W. Va. 698, 705 n.9, 601 S.E.2d 18, 25 n.9 (2004) (affirming denial of
the petitioner’s second habeas petition, finding that “it is difficult to muster any sound reasoning
for giving [him] another bite at the apple”); Call v. McKenzie, 159 W. Va. 191, 194, 220 S.E.2d
665, 669 (1975) (“While a defendant is entitled to due process of law, [she] is not entitled to appeal
upon appeal, attack upon attack, and habeas corpus upon habeas corpus.”).

       With regard to petitioner’s remaining claim, that she had evidence that arguably was not
“discovered” at the time petitioner filed her three prior habeas petitions, petitioner’s allegations of
juror misconduct are speculative at best. 1 Because the allegations were unfounded, they “do[ ] not

       1
           In the Syllabus of State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979), we held:

               “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 plaintiff 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
       (continued . . .)
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justify the issuance of a writ, the appointment of counsel, and the holding of a hearing.” Losh, 166
W. Va. at 771, 277 S.E.2d at 612. The circuit court adequately explained that there was no evidence
that the juror knew of the criminal activity involving her family members at the time of petitioner’s
trial. Moreover, there is no evidence of a family connection between the juror and those involved
in the case petitioner references. The circuit court likewise found that the polling of the jury, and
the juror’s explicit agreement with the verdict, dispelled petitioner’s allegation that the juror was
“rushed” into voting. Accordingly, we conclude that the circuit court did not abuse its discretion
in denying petitioner’s fourth habeas petition inasmuch as three of petitioner’s allegations are
barred by the doctrine of res judicata and the only remaining reviewable claim was properly denied
for a lack of evidentiary support.

        For the foregoing reasons, we affirm the circuit court’s October 11, 2018, order denying
petitioner’s fourth petition for a writ of habeas corpus.

                                                                                          Affirmed.


ISSUED: June 3, 2020

CONCURRED IN BY:

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




       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).
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