                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


Michael D. Hicks,
Petitioner Below, Petitioner                                                        FILED
                                                                                 August 29, 2014
vs) No. 14-0113 (Kanawha County 12-MISC-576)                                   RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner Michael D. Hicks, appearing pro se, appeals the January 15, 2014, order of the
Circuit Court of Kanawha County that denied his instant petition for a writ of habeas corpus.
Respondent warden, by counsel Laura Young, filed a response. 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.

        In 1994, petitioner was indicted for the murder of Terrance Spencer. Petitioner was
convicted of first degree murder; however, this Court reversed the conviction. See State v. Hicks,
198 W.Va. 656, 482 S.E.2d 641 (1996). While it based the reversal on other grounds, the Court
rejected petitioner’s assignment of error that the evidence was insufficient to support his
conviction. Id. at 666, 482 S.E.2d at 651. The Court explained that the jury could have properly
considered the discrepancies in the testimony of the two eye witnesses and still concluded that
their testimony was truthful. Id. Accordingly, the Court concluded that “a rational trier of fact
could have found the essential elements of the crime proved beyond a reasonable doubt.” Id.

         At petitioner’s 1998 retrial, the two witnesses, Terri Bannister and Carli Campbell,
testified that they witnessed petitioner shooting the victim in the back of the head, strangling him
with a belt or belts, and suffocating him with a garbage bag.1 The witnesses testified that petitioner
killed the victim because the victim had cheated Ms. Bannister, who was petitioner’s girlfriend at
the time, out of money Ms. Bannister gave the victim to purchase drugs.




       1
          Ms. Bannister’s testimony was actually her testimony from the first trial; it was read to
the jury because she failed to appear at the second trial despite being subpoenaed.

                                                  1

        Lt. Howard Brent Myers, a forensic scientist with the West Virginia State Police Crime
Lab (“state crime lab”), testified that blood found on a tennis shoe and wall trim at the crime scene
could have come from either Ms. Bannister or petitioner. Ms. Bannister, who testified pursuant to
a plea bargain, testified that she helped dispose of the victim’s body. Also, both petitioner and Ms.
Bannister lived at the location where the murder occurred.

        Petitioner denied that he killed the victim or that he was even present during the murder.
Petitioner asserted that Ms. Bannister and Ms. Campbell conspired to blame the murder on him.
The jury at the retrial found petitioner guilty of first degree murder and did not recommend mercy.
Accordingly, petitioner was sentenced to a life term in prison without the possibility of parole.
This Court refused petitioner’s appeal.

        Petitioner filed his first petition for a writ of habeas corpus in 2001. Petitioner received an
omnibus hearing on March 11, 2004, and as an additional part of the habeas proceeding,
petitioner’s counsel requested that Lt. Myers perform more precise DNA testing on the blood
found on the tennis shoe and wall trim. (In the intervening years, DNA testing had improved.) The
new test showed that the blood belonged to Ms. Bannister, and not to petitioner. On May 10, 2004,
the circuit court denied petitioner’s petition. The court found that given all of the evidence and
testimony, “[t]he results of the DNA testing presented as a part of this case did not call the jury’s
verdict into question.” Petitioner appealed the denial of his petition. This Court refused his appeal
on January 20, 2005.

         In 2006, petitioner filed a second habeas petition based on In the Matter of Renewed
Investigation of the State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d
762 (2006). Petitioner argued that Lt. Myers’s trial testimony about the blood was false and that
the State did not test all items that should have been tested. Petitioner was appointed counsel and
given another hearing on February 23, 2007. Lt. Myers testified with regard to the results of the
DNA testing. Lt. Myers testified that he conducted DNA testing, not serological testing, on the
evidence offered against petitioner. In addition, Lt. Myers testified that certain evidence was not
tested because there was not a great likelihood of obtaining results from the evidence based on the
type of DNA testing used at that time or because there was insufficient amounts of material to test.
On January 7, 2008, the circuit court denied petitioner’s second habeas petition. The circuit court
found that DNA evidence rather than serology evidence was offered against petitioner at trial. The
circuit court also found that petitioner did not allege that the DNA testing was falsified in any way.
The circuit court concluded, for a second time, that the result of the more recent DNA testing did
not call into question the jury’s verdict. Petitioner filed an appeal, which this Court refused on
September 9, 2008.

       Petitioner filed the instant habeas petition on October 31, 2012, alleging that counsel
provided ineffective assistance in his first habeas proceeding by not developing his claim that
more precise DNA testing should have been performed on the blood evidence. Petitioner was
appointed counsel; however, counsel later withdrew because he concluded that petitioner wanted
him to raise claims against prior habeas counsel that were frivolous and unethical. Petitioner
moved to have substitute counsel appointed. Instead, the circuit court entered an order summarily
dismissing the instant petition. The circuit court determined that petitioner’s argument “hinges on
                                                   2

whether the more recently tested DNA evidence would have changed the jury verdict under a
Strickland v. Washington analysis.”2 The circuit court found that the issue with regard to the more
recent DNA testing had been finally adjudicated in the prior proceedings. Therefore, the circuit
court concluded that petitioner was entitled to no relief.

        Petitioner now appeals the circuit court’s January 15, 2014, summary dismissal of his
instant petition. We apply the following standard of review in habeas cases:

       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). In addition, in Syllabus
Point 2 of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), this Court held as follows:

       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.

         On appeal, petitioner asserts that rather than summarily dismissing the instant petition, the
circuit court should have granted his motion for substitute counsel and conducted a habeas hearing
for a third time. Respondent warden counters that the circuit court did not err in summarily
dismissing the petition. We agree.

        First, although petitioner alleges that first habeas counsel was ineffective, it was that
counsel who requested that more precise DNA testing be performed on the blood evidence. The
flaw in petitioner’s position is that the fact that Ms. Bannister has been shown to be the sole source
of the blood on the tennis shoe and wall trim does nothing to undermine the verdict against
petitioner because (1) Ms. Bannister admitted that she helped dispose of the victim’s body; and (2)
Ms. Bannister also lived at the location where the murder occurred. Thus, confirmation that it was
her blood on the items does not exculpate petitioner.3 Second, in Hicks, this Court determined that
       2
          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), which requires the
following: (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 proceeding would have been different. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d
114 (1995) (adopting Strickland ).
       3
           Petitioner suggests that the more recent DNA result could be used to impeach Ms.
                                                3

the testimony of Ms. Bannister and Ms. Campbell was sufficient to support a guilty verdict
because the jury could have properly considered the discrepancies in their respective accounts and
still concluded that the testimony was truthful. For the aforementioned reasons, the more precise
DNA result in the first habeas proceeding does not change that determination. Therefore, not only
was petitioner’s claim with regard to the more precise DNA result adjudicated in the prior
proceedings, this Court also finds that the claim was adjudicated correctly. The Court concludes
that the circuit court did not abuse its discretion in summarily dismissing petitioner’s instant
petition.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.


ISSUED: August 29, 2014

CONCURRED IN BY:

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




Bannister’s testimony because she testified that she was not aware of any person, other than the
victim, bleeding at the time of the crime. We find such a use of the more recent DNA result—for
impeachment purposes only—would not justify granting a new trial in the instant case. See Syl.,
State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).
                                                 4
