                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Frederico M. Hatcher,
Petitioner Below, Petitioner                                                           FILED
                                                                                     May 23, 2016
vs) No. 15-0414 (Cabell County 15-C-208)                                            RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Pro se petitioner Frederico M. Hatcher appeals the Circuit Court of Cabell County’s April
7, 2015, order denying his petition for post-conviction habeas corpus relief. Respondent David
Ballard, Warden, by counsel David A. Stackpole, filed a response. Petitioner filed a reply. On
appeal, petitioner alleges that (1) the circuit court erred by “totally ignoring” this Court’s holding
in In the Matter of Renewed Investigation of the State Police Crime Laboratory, 219 W.Va. 408,
633 S.E.2d 762 (2006) (“Zain III”) with regard to serology evidence; (2) the circuit court judge
failed to recuse himself; and (3) the circuit court erred in refusing to find that petitioner had a
“due process right to assign ineffective assistance of counsel” in his underlying habeas petition.1

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In 1996, the grand jury returned two indictments against petitioner and several co­
defendants for crimes related to two criminal episodes. The first indictment charged petitioner
with one count of aggravated robbery for hitting a pizza delivery person with a wooden club
while a co-defendant took two pizzas and a bottle of soda. The second indictment charged
petitioner with one count of first-degree murder for the shooting death of a convenience store
clerk.

       Thereafter, the circuit court held two jury trials—a separate trial on each indictment. At
the conclusion of those trials, petitioner was found guilty of both counts. The jury in petitioner’s

        1
         Petitioner lists a fourth assignment of error in his brief to this Court: that the circuit court
erred in ruling that res judicata precluded habeas relief in this matter. As the issue of res judicata
is substantially related to petitioner’s first and third assignments of error, we address the issue in
our discussions of those two grounds.
                                                   1


murder trial found that he should not receive a recommendation of mercy. In August of 1996, the
circuit court held a joint sentencing hearing on both convictions. For the aggravated robbery
conviction, the circuit court sentenced petitioner to 212 years in prison. For the first-degree
murder conviction, the circuit court sentenced petitioner to life without mercy. In February of
1997 and October of 1997, respectively, this Court refused both of petitioner’s direct appeals.

        In April of 1998, petitioner, pro se, filed his first petition for post-conviction habeas
corpus relief.2 Thereafter, the circuit court appointed petitioner habeas counsel and held an
omnibus evidentiary hearing in December of 1998. During that hearing, petitioner informed the
circuit court that he was aware of his rights, had reviewed his claims with counsel, and waived
the right to assert any claims not set forth in his petition or checklist, pursuant to the procedural
requirements set forth in Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). By order
entered in 1999, the circuit court denied petitioner’s first habeas petition. This Court refused
petitioner’s appeal of that order.

        In late December of 1998, petitioner filed a second habeas petition.3 Thereafter, the
circuit court appointed petitioner habeas counsel and held another omnibus evidentiary hearing
in May of 2005. By order entered in May of 2005, the circuit court denied petitioner’s second
habeas petition. This Court affirmed that order in Hatcher v. McBride, 221 W.Va. 5, 650 S.E.2d
104 (2006).

        In 2006, petitioner, pro se, filed a third habeas petition, which was denied the same day.
Petitioner appealed that denial order to this Court and appellate counsel was appointed to
petitioner thereafter. Petitioner’s appellate counsel filed an amended petition for appeal that
challenged the constitutionality of petitioner’s sentence for aggravated robbery and argued that
his prior habeas counsel was ineffective. This Court affirmed the denial of petitioner’s third
habeas petition in State ex rel. Hatcher v. McBride, 221 W.Va. 760, 656 S.E.2d 789 (2007), cert.
denied, 552 U.S. 1269 (2008).

       In July of 2010, petitioner, pro se, filed a fourth habeas petition, which was denied by
order entered on September 8, 2010. Petitioner did not appeal that denial.

      In March of 2015, petitioner, pro se, filed the present habeas petition in which he asserted
two grounds for relief: (1) that the State presented faulty serology results performed by a




       2
         Given the limited record on appeal, it is unclear what grounds petitioner raised in his
first four habeas petitions. However, as will be discussed elsewhere in this memorandum
decision, petitioner does not contend that he raised the issue of serology evidence at any time
prior to his present habeas petition.
       3
         It is unclear from the record on appeal whether petitioner filed his second habeas petition
pro se or by counsel; why he filed that petition prior to the entry of the order denying his first
habeas petition in 1999; and why the omnibus evidentiary hearing on that petition was not held
until 2005.
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serologist other than Fred Zain4 at one of his underlying criminal trials; and (2) ineffective
assistance of trial counsel for failing to properly investigate the State Police Crime Laboratory
given the wide-spread knowledge of faulty serology results.

         In March of 2015, the circuit court appointed petitioner habeas counsel and directed
counsel to amend the petition on or before June 15, 2015, if necessary. However, on April 7,
2015, the circuit court entered an order that denied petitioner’s present habeas petition based
“[u]pon sua sponte review of this matter[.]” By that order, the circuit court found that both of
petitioner’s alleged grounds for relief were barred by res judicata. As to the first ground, the
circuit court found that petitioner knew or should have known of the serology issue at the time of
the filing of his four prior habeas petitions, but he failed to raise the issue in those proceedings.
As to the second ground, the circuit court found that the issue of ineffective assistance of trial
counsel was previously decided by both the circuit court and this Court and, thus, was also res
judicata. Therefore, for the foregoing reasons, the circuit court denied petitioner’s present habeas
petition. This appeal followed.

       This Court reviews a circuit court order denying habeas relief under the following
standard:

               “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’s first assignment of error is that the circuit court abused its
discretion by ignoring this Court’s holding in Zain III. In Syllabus Points 4, 5, and 6 of Zain III,
we held as follows:

               A prisoner against whom a West Virginia State Police Crime Laboratory
       serologist, other than Fred Zain, offered evidence and who challenges his or her
       conviction based on the serology evidence is to be granted a full habeas corpus
       hearing on the issue of the serology evidence. The prisoner is to be represented by
       counsel unless he or she knowingly and intelligently waives that right. The circuit
       court is to review the serology evidence presented by the prisoner with searching
       and painstaking scrutiny. At the close of the evidence, the circuit court is to draft
       a comprehensive order which includes detailed findings as to the truth or falsity of
       the serology evidence and if the evidence is found to be false, whether the
       prisoner has shown the necessity of a new trial based on the five factors set forth
       in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

       4
       Fred Zain worked as a chemist for the West Virginia State Police from 1979 until 1989.
He was found to have falsified evidence in criminal prosecutions.
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                A circuit court that receives a petition for a writ of habeas corpus from a
       prisoner against whom a West Virginia State Police Crime Laboratory serologist,
       other than Fred Zain, offered evidence, and whose request for relief is grounded
       on the serology evidence, is to hear the prisoner’s challenge in as timely a manner
       as is reasonably possible.

              A prisoner who was convicted between 1979 and 1999 and against whom
       a West Virginia State Police Crime Laboratory serologist, other than Fred Zain,
       offered evidence may bring a petition for a writ of habeas corpus based on the
       serology evidence despite the fact that the prisoner brought a prior habeas corpus
       challenge to the same serology evidence, and the challenge was finally
       adjudicated.

219 W.Va. at 409-10, 633 S.E.2d at 763-64. Petitioner now claims that the circuit court ignored
the above-referenced syllabus points when it applied the doctrine of res judicata to his Zain III
challenge. Following a thorough review of the record on appeal, we find no support for
petitioner’s argument. Contrary to his assertion that the circuit court ignored our holding in Zain
III, it is clear that the circuit court cited Zain III in the final order at issue in this appeal as the
exact issue under review.

        Moreover, petitioner’s argument relies upon the factual inaccuracy that the circuit court
decided this issue on grounds of res judicata. To the contrary, the circuit court dismissed
petitioner’s Zain III challenge because it was a skeletal argument that lacked sufficient
evidentiary support. We have explained that

               [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.

Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657, 658 (1973). A habeas petitioner
also bears the burden of establishing that he is entitled to the relief sought. See State ex rel.
Hatcher, 221 W.Va. at 766, 656 S.E.2d at 795 (stating that “a skeletal ‘argument,’ really nothing
more than an assertion, does not preserve a claim”); Markley v. Coleman, 215 W.Va. 729, 734,
601 S.E.2d 49, 54 (2004) (noting that allegations must have adequate factual support for
appointment of counsel, hearing, and/or issuance of writ); Syl. Pts. 1 and 2, State ex rel. Scott v.
Boles, 150 W.Va. 453, 147 S.E.2d 486, 487 (1966).

        In this case, the circuit court’s final order specifically found that petitioner’s “claim
amounts to nothing more than a general or bare assertion without analysis or explanation.”
Having reviewed the record and the parties’ arguments herein, we agree with the circuit court
that petitioner was entitled to no relief on this issue as presented. Petitioner failed to cite any
portion of the record to indicate who testified as to serology evidence; by which laboratory such
serology evidence was tested; at which trial such evidence was heard; what bearing that evidence

                                                   4


had on the trial’s outcome; or any other factual support for his claim. The circuit court only
discussed res judicata after dismissing petitioner’s claim as insufficiently supported by
documentary evidence. Moreover, the circuit court expressly applied res judicata in light of “the
instant serology argument” specific to the circumstances of this case. Therefore, based on those
reasons, we find no merit to petitioner’s first assignment of error.

       Next, petitioner argues that the circuit court judge who denied the instant habeas petition
should have recused himself from this case because he was employed in the Cabell County
Prosecuting Attorney’s Office during the time of petitioner’s indictments and trials. In response,
respondent argues that petitioner failed to file a motion to disqualify the circuit court judge
below5 and failed to cite any portion of the record on appeal to establish a basis for such
disqualification. We agree with respondent. We have long held that our “general rule is that
nonjurisdictional questions not raised at the circuit court level will not be considered to the first
time on appeal.” State v. Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009). Further, Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure provides that a petitioner’s brief to
this Court

       must contain an argument exhibiting clearly the points of fact and law presented,
       the standard of review applicable, and citing the authorities relied on, under
       headings that correspond with the assignments of error. The argument must
       contain appropriate and specific citations to the record on appeal, including
       citations that pinpoint when and how the issues in the assignments of error were
       presented to the lower tribunal. The Court may disregard errors that are not
       adequately supported by specific references to the record on appeal.

See also State v. Larry A.H., 230 W.Va. 709, 716, 742 S.E.2d 125, 132 (2013) (stating that a
petitioner “must carry the burden of showing error in the judgment of which he complains. This
Court will not reverse the judgment of a trial court unless error affirmatively appears from the
record. Error will not be presumed, all presumptions being in favor of the correctness of the
judgment.”). In this case, petitioner failed to raise this issue by motion or otherwise below, and
failed to cite any portion of the record on appeal to support his factual assertions. As such, we
need not address this issue.

        Petitioner’s final assignment of error is that the circuit court erred “when it refused to
acknowledge that [p]etitioner had a due process right to assign ineffective assistance of counsel,
for not being apprised of his constitutional right to have all of the blood evidence that was tested,
properly tested and testified to correctly.” Following our review of the record on appeal, we find
that res judicata applies to this ground. We have held that

               [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: (1) ineffective assistance of counsel at the omnibus habeas corpus

       5
        Rule 17.01 of the West Virginia Trial Court Rules sets forth the grounds for a motion to
disqualify a judge and provides the procedure for filing such a motion.
                                                 5


          hearing; (2) newly discovered evidence; (3) or, a change in the law, favorable to
          the applicant, which may be applied retroactively.

   Losh, 166 W.Va. at 762, 277 S.E.2d at 606, syl. pt. 4.

           Here, it is undisputed that the instant habeas petition is petitioner’s fifth habeas action.
   Two of petitioner’s prior habeas actions resulted in opinions by this Court, one of which denied
   relief on an assertion of ineffective assistance of habeas counsel. See Hatcher, 221 W.Va. at 12,
   650 S.E.2d 111 (denying habeas relief); Hatcher, 221 W.Va. at 766, 656 S.E.2d at 795 (denying
   habeas relief on claim of ineffective assistance of habeas counsel and other claims). While it is
   unclear from petitioner’s brief whether he argues ineffective assistance of trial counsel, habeas
   counsel, or both, it appears that he attempts to argue the merits of an ineffective assistance claim
   as to his trial counsel. Regardless, res judicata applies under the circumstances of this case. As to
   habeas counsel, this Court has previously decided the issue of whether habeas counsel was
   constitutionally ineffective, and, as to trial counsel, petitioner knew or should have known to
   raise this issue in any of his four prior habeas petitions. Therefore, based on the circumstances
   presented herein, we decline to address this issue.

          For the foregoing reasons, we affirm.

                                                                                             Affirmed.

   ISSUED: May 23, 2016

   CONCURRED IN BY:

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




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