                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Patrick J. Meckling,                                                                FILED
Petitioner Below, Petitioner
                                                                                 June 2, 2017
                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0608 (Ohio County 16-C-128)                                        SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Marvin Plumley, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Patrick J. Meckling, pro se, appeals the June 1, 2016, order of the Circuit Court
of Ohio County denying his petition for a writ of habeas corpus. Respondent Marvin Plumley,
Warden, Huttonsville Correctional Center, by counsel Nic Dalton, 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.

        On the evening of July 13, 2007, petitioner and his longtime girlfriend (“victim”) met at a
bar in Wheeling, West Virginia. Following drinking and gambling at the bar, the victim did not
want to leave with petitioner because she was violating a condition of her participation in drug
court by being with him. Petitioner grabbed the victim’s arm and demanded that she “get in [his]
truck.” The victim later attempted to get out of the vehicle, but petitioner “grabbed [her] hair.”
Thereafter, petitioner “punched [her] in the head a few times.” Petitioner and the victim then went
to her apartment where they smoked crack (purchased with the victim’s money) and engaged in
sexual intercourse. On the morning of July 14, 2007, the victim reported the incident to the police
and filed a petition for a domestic violence protective order (“DVPO”). Petitioner was
subsequently indicted for abduction with intent to defile and malicious assault.

        At petitioner’s October 29, 2007, trial, the victim testified that she sought a DVPO only to
make her children “shut up” about her injuries and that the matter “got out way out of hand.”
However, once the State confronted the victim with her handwritten statements, she confirmed that
the statements to the police were truthful. The State also introduced photographs of the victim’s
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injuries. When presented with the photographs, the victim testified that petitioner caused injuries
to her arm and to her eye.1

        During petitioner’s testimony, he commented that the victim “bruises very, very easily.”
Petitioner further testified that the victim obtained the DVPO against him “just to keep [her] kids
happy” and she “dropped” the DVPO a couple days later. Petitioner attempted to testify as to the
precise outcome of that proceeding, but the State objected that the outcome was irrelevant to
petitioner’s criminal case. The circuit court sustained the State’s objection. After petitioner’s
testimony, the defense rested its case as petitioner’s attorney “[did]n’t think the other witnesses
showed up.” The trial transcript does not reflect whether the other witnesses were subpoenaed.

         Following trial, the jury convicted petitioner of abduction with intent to defile and
misdemeanor battery, a lesser included offense of malicious assault. After the jury was released,
the State filed a recidivist information against petitioner pursuant to West Virginia Code §§
61-11-18 and 61-11-19. Petitioner admitted to his two prior felony offenses, but also filed a motion
to dismiss the recidivist information on December 3, 2007. At the December 10, 2007, sentencing
hearing, petitioner argued that a life recidivist sentence would be unconstitutionally
disproportionate given that one of his prior felonies was a conviction for uttering. However, the
circuit court found that the triggering offense under West Virginia Code §§ 61-11-18 and 61-11-19
(abduction with intent to defile) was a violent offense and that petitioner’s other prior felony
conviction was also for a violent offense (unlawful assault). Accordingly, by sentencing order
entered on March 20, 2008, the circuit court denied petitioner’s motion on the ground that a life
recidivist sentence would not be unconstitutionally disproportionate. The circuit court sentenced
petition to a life term of incarceration and to a concurrent sentence of one year of incarceration for
his misdemeanor battery conviction. Petitioner subsequently petitioned this Court to review his
convictions and life recidivist sentence, arguing that (a) petitioner did not receive a fair trial given
that he was briefly placed in handcuffs in view of at least some of the jurors; and (b) petitioner’s
life recidivist sentence was unconstitutionally disproportionate. On May 22, 2008, this Court
refused petitioner’s appeal.

        On March 15, 2009, petitioner filed a petition for a writ of habeas corpus in this Court that
included the following claims: (1) the State coerced the victim into testifying falsely at trial based
on her post-conviction recantation of her trial testimony; (2) petitioner’s trial attorney provided
ineffective assistance; and (3) petitioner’s life recidivist sentence was unconstitutionally
disproportionate. By order entered on May 13, 2009, this Court remanded the petition to the circuit
court for appointment of counsel and an omnibus habeas corpus hearing. The circuit court
appointed habeas counsel for petitioner, who filed an amended petition on February 26, 2010,
raising the additional issue of whether petitioner did not receive a fair trial given that he was
briefly placed in handcuffs in view of at least some of the jurors. Prior to any hearing being held,
the circuit court vacated petitioner’s sentences and granted him a new trial based on the additional
issue raised in the amended petition. In its February 4, 2014, order granting habeas relief, the
circuit court also reserved ruling on the constitutionality of petitioner’s life recidivist sentence and
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           The State also presented the testimony of two Wheeling police officers.

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the status of the victim’s post-conviction recantation of her trial testimony as newly discovered
evidence (two issues on which petitioner’s habeas attorney made additional arguments). The
circuit court further stayed its ruling granting habeas relief to allow respondent time to appeal.
Subsequently, in Ballard ex rel. Mount Olive Correctional Center v. Meckling, 235 W.Va. 109,
115, 772 S.E.2d 208, 214 (2015), this Court reversed the February 4, 2014, order granting
petitioner’s habeas petition on the ground that the circuit court failed to apply a prior holding that
“a juror’s brief view of a defendant in handcuffs is not sufficient to establish reversible error, nor
grounds for a mistrial.”

        Subsequently, on May 14, 2015, petitioner filed a pro se motion requesting that the circuit
court rule on the two claims on which it reserved ruling in its February 4, 2014, order. In an order
entered on May 27, 2015, the circuit court first rejected petitioner’s contention that his life
recidivist sentence was unconstitutionally disproportionate in a ruling that reaffirmed its earlier
determination at the December 10, 2007, sentencing hearing. Second, the circuit court found that
the victim’s post-conviction recantation of her trial testimony did not entitle petitioner to relief
under the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979), which sets forth the
standard for when a defendant is entitled to a new trial because of newly discovered evidence.

        On May 2, 2016, petitioner filed the instant habeas petition raising the following claims:
(1) there was insufficient evidence that petitioner committed abduction with intent to defile; (2) the
State coerced the victim into testifying falsely at trial based on her post-conviction recantation of
her trial testimony; (3) petitioner’s trial attorney provided ineffective assistance; and (4)
petitioner’s life recidivist sentence was unconstitutionally disproportionate. By order entered on
June 1, 2016, the circuit court denied the petition finding that “each of the grounds raised in the
current [p]etition has been previously and finally adjudicated and/or waived by [p]etitioner.”

      Petitioner now appeals the circuit court’s June 1, 2016, order denying 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 challenges the circuit court’s finding that the grounds raised in his
petition were previously adjudicated or waived in the previous habeas proceeding in Meckling.
Respondent counters that the doctrine of res judicata, as enunciated by this Court in Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), bars petitioner’s instant habeas petition. We
agree with respondent.

        Pursuant to syllabus point two of Losh, the doctrine of res judicata bars successive habeas
petitions following an omnibus proceeding, which generally comprises of (1) appointment of
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counsel; and (2) an evidentiary hearing. 166 W.Va. at 762, 277 S.E.2d at 608. However,
petitioner’s prior proceeding is somewhat unique in that, while no hearing occurred, petitioner
received a full grant of habeas relief by the circuit court’s February 4, 2014, order vacating his
sentences and directing a new trial. Therefore, under the facts and circumstances of this case, we
conclude that petitioner’s prior proceeding in Meckling qualifies as an omnibus habeas corpus
proceeding under syllabus point two of Losh.

         “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[.]” Id. at 762, 277 S.E.2d at 608,
syl. pt. 2. In Meckling, we reversed the circuit court’s February 4, 2014, order vacating petitioner’s
sentences and directing a new trial. 235 W.Va. at 115, 772 S.E.2d at 214. Subsequently, Petitioner
filed his May 14, 2015, motion requesting that the circuit court rule on the two claims on which it
reserved ruling in its February 4, 2014, order. The circuit court responded to petitioner’s request by
entering its May 27, 2015, order (1) rejecting petitioner’s contention that his life recidivist
sentence was unconstitutionally disproportionate in a ruling that reaffirmed its earlier
determination at the December 10, 2007, sentencing hearing; and (2) finding that the victim’s
post-conviction recantation of her trial testimony did not entitle petitioner to a new trial. Therefore,
the record reflects that, to the extent that petitioner wanted further relief in his prior proceeding, he
knew how to seek it and did so. We conclude that petitioner, with reasonable diligence, could have
sought relief on all issues that he now alleges remain unresolved following his previous habeas
proceeding and that, accordingly, the circuit court did not err in finding that “each of the grounds
raised . . . has been previously and finally adjudicated and/or waived by [p]etitioner.”

        We note that, if petitioner believes that his habeas attorney failed to adequately develop
certain claims in the prior proceeding, he may file a successive petition raising ineffective
assistance of habeas counsel pursuant to syllabus point 4 of Losh, which sets forth exceptions to
the doctrine of res judicata. 166 W.Va. at 762-63, 277 S.E.2d at 608. However, petitioner does not
claim ineffective assistance of habeas counsel in the instant case. Therefore, we conclude that the
circuit court did not abuse its discretion in denying the instant habeas petition.

        For the foregoing reasons, we affirm the circuit court’s June 1, 2016, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                              Affirmed.
ISSUED: June 2, 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

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