                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

                                                                                      FILED
                                                                                  January 29, 2016
William W.,                                                                        RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
Petitioner Below, Petitioner                                                         OF WEST VIRGINIA


vs)     No. 15-0306 (Fayette County 15-C-65)

Karen Pszczolkowski, Warden,
Northern Correctional Facility,
Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner William W.,1 pro se, appeals the order of the Circuit Court of Fayette County,
entered on March 24, 2015, denying his petition for a writ of habeas corpus. Karen Pszczolkowski,
Warden, Northern Correctional Facility, by counsel Laura Young, filed a summary response.

        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.

       Petitioner was indicted in January of 2005 on two counts of first-degree sexual assault, two
counts of incest, and two counts of sexual abuse by a parent, guardian, or custodian. The alleged
victim was petitioner’s granddaughter, S.H., who was born in 1995.

        On the date his trial was to begin, petitioner’s counsel suffered a medical episode and a
mistrial was declared. On the first day of the second trial, petitioner’s counsel again was suffering
from medical issues and was excused and replaced by another lawyer from his firm. Petitioner
subsequently absconded and did not reappear for the remainder of the trial. S.H., then eleven years

       1
         Consistent with our practice in cases involving sensitive facts, we use only petitioner’s
first name and last initial, and identify the minor victim only by her initials. See State ex rel. W.Va.
Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987).

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old, testified against petitioner. Subsequently, the jury found petitioner guilty of all six counts.
Following petitioner’s apprehension, the circuit court sentenced him to fifteen to thirty-five years
of incarceration on each of the two first-degree sexual assault charges; five to fifteen years of
incarceration on each of the two incest charges; and ten to twenty years of incarceration on the
sexual abuse by a parent, guardian, or custodian charges. All counts were to run consecutively
except the incest charges which were to run concurrently. Petitioner was resentenced in October of
2008 for purposes of appeal. This Court refused to hear the appeal by an order entered on June 3,
2009.

        Petitioner filed three prior habeas petitions: Nos. 10-C-170-H, 12-C-77-H, and 13-C-25-H.
In No. 10-C-170-H, petitioner raised ineffective assistance of counsel, denial of his right to be
mentally competent during trial, and excessive sentence. In No. 12-C-77-H, petitioner raised
ineffective assistance of counsel, insufficient evidence, and problems with jury selection. In No.
13-C-25-H, petitioner raised ineffective assistance of counsel and mental incompetency at trial,
and asserted that he should have been evaluated for mental competency. The circuit court denied
petitioner’s petition without a hearing in all three cases, but petitioner appealed the denial of
habeas relief only in Nos. 10-C-170-H and 12-C-77-H. In [William W.] v. Seifert, No. 101620, at 2
(W.Va. Supreme Court, December 7, 2012) (memorandum decision) (“William W. I”), this Court
affirmed the denial of petitioner’s habeas petition in No. 10-C-170-H, noting that the circuit court
judge “presided in every proceeding in [petitioner’s] underlying case, from arraignment, through
two jury trials and sentencing, and with the knowledge and experience gained through presiding in
all of the aforementioned.” (Emphasis omitted.) In [William W.] v. Seifert, No. 12-0490, at 3
(W.Va. Supreme Court, February 11, 2013) (memorandum decision) (“William W. II”), this Court
specifically found that “the circuit court did not err in failing to hold an evidentiary hearing.”

        Petitioner filed the instant petition for a writ of habeas corpus on March 9, 2015, alleging
ineffective assistance of counsel and prosecutorial misconduct. On March 24, 2015, the circuit
court denied the petition. First, the circuit court found that petitioner’s ineffective assistance
claims were “substantially similar” to those made in the prior cases and that previously made
findings that counsel performed effectively encompassed any new claim. See William W. I, No.
101620, at 2 (affirming circuit court’s finding that petitioner was “fairly and effectively
represented by effective trial counsel”); see William W. II, No. 12-0490, at 2 (affirming denial of
habeas relief by finding, inter alia, “no merit in petitioner’s ineffective assistance of counsel
claims.”). Second, the circuit court determined that the prosecutor did not impermissibly ask the
jury to put themselves in the place of the victim or her family during his opening statement.

       Petitioner appeals the circuit court’s March 24, 2015, order denying habeas relief. We
review a circuit court’s order denying a habeas petition pursuant to 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.

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Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006).

         On appeal, petitioner complains that he still has not had a habeas proceeding in which
counsel was appointed and an evidentiary hearing was held. Pursuant to Syllabus Point 2 of Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606, 608 (1981), the doctrine of res judicata will not bar
subsequent habeas petitions until there has been an omnibus evidentiary hearing and appointment
of counsel. In William W. II, we specifically determined that petitioner’s arguments did not require
an evidentiary hearing. No. 12-0490, at 3. Based on our affirmations of its earlier denials of habeas
relief in both William W. I and William W. II, the circuit court found that petitioner’s ineffective
assistance claims were “substantially similar” to those made in the prior cases and determined that
previously made findings that counsel performed effectively encompassed any new claim. As
respondent notes, “[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) (Emphasis added.). Upon our review of petitioner’s
current ineffective assistance claims, we determine that the circuit court’s previous findings
constituted an adequate basis on which to find those claims to be without merit. We conclude that
the circuit court did not clearly err in finding that petitioner’s ineffective assistance of counsel
claim lacked merit.

        Second, petitioner reiterates his position that there was prosecutorial misconduct. The
circuit court found that the prosecutor did not impermissibly ask the jury to put themselves in the
place of the victim or her family during his opening statement. “Only an argument that urges the
jurors to put themselves in the place of the victim or the victim’s family is an improper ‘golden
rule’ argument.” Syl. Pt. 4, State v. Clements, 175 W.Va. 463, 466, 334 S.E.2d 600, 603 (1985).
Petitioner contends that the prosecutor’s use of the phrase “lowest forms of humanity” still
inflamed the jury’s passions against petitioner. Respondent counters that the prosecutor’s
descriptions of a betrayal of trust and the lowest form of humanity were directed at the conduct of
which petitioner stood accused—not at petitioner himself. We note that the charged conduct
comprised a grandfather allegedly sexually abusing his granddaughter. Thus, we find that the
descriptions the prosecutor used were not improper under the facts and circumstances of this case.
We conclude that the circuit court did not abuse its discretion in rejecting this ground of relief and
in denying petitioner’s petition for a writ of habeas corpus.

        For the foregoing reasons, we affirm.

                                                                                               Affirmed.




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ISSUED: January 29, 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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