                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Gerald K. M.,                                                                       FILED
Petitioner Below, Petitioner                                                     January 14, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 12-0021 (Kanawha County 11-MISC-321 )                                   OF WEST VIRGINIA



David Ballard, Warden of Mount Olive
Correctional Complex, Respondent Below,
Respondent

                                 MEMORANDUM DECISION

        Petitioner M.1’s appeal, filed pro se, arises from the Circuit Court of Kanawha County,
wherein his fourth petition for writ of habeas corpus was denied by order entered on November
15, 2011. Respondent Ballard, by counsel Laura Young, filed a response in support of the circuit
court’s decision. Petitioner submitted a reply.

       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 1995, the circuit court sentenced Petitioner M. to two consecutive terms of fifteen to
thirty-five years following his conviction of two counts of first degree sexual assault. Petitioner
M. subsequently appealed these convictions, which this Court refused. Thereafter, petitioner
filed petitions for writs of habeas corpus in circuit court, the first three of which were denied and
on appeal were refused. In November of 2011, the circuit court denied petitioner’s fourth petition
for writ of habeas corpus, stating that the instant petition was “based on grounds previously
reviewed by the [circuit court] and does not set forth any new grounds for relief.” Petitioner
appeals.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:



1
  Because the victim in the underlying case was a minor at the time of petitioner’s crimes, 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).

                                                 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.” 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).

        On appeal, Petitioner M. argues that none of the six grounds he raised in the instant
habeas corpus petition were adjudicated in his first habeas petition. He argues that, accordingly,
res judicata does not apply and the circuit court should have considered each of his arguments in
its order denying relief. He further argues that the March of 2003 hearing on his first habeas
corpus petition cannot be considered an omibus hearing because he did not knowingly and
intelligently waive the grounds not asserted in that hearing. In response, the State argues
petitioner has raised the same issues that he did in his prior habeas corpus petitions and any other
issues he raised in the instant petition that were not raised before have been waived. Petitioner’s
reply reiterates that none of the grounds he raised in the instant petition were previously litigated.

       We find no abuse of discretion by the circuit court’s denial of the fourth petition for
habeas corpus. With regard to subsequent petitions for writs of habeas corpus, we have held as
follows:

          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). Our review of the record
reflects that petitioner raised issues in his fourth petition that were either raised previously or
have been waived. Moreover, our review indicates that petitioner was not restricted on
presenting any evidence or arguments at his initial omnibus evidentiary hearing. In light of
Syllabus Point 4 of Losh v. McKenzie, petitioner does not raise any viable issue for our review.
Having reviewed the circuit court’s “Ordering [sic] Denying Amended Petition for Writ of
Habeas Corpus” entered on November 15, 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. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum
decision.2

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


2
 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.

                                                  2

                                       Affirmed.

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




                                  3

