                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


Ronald W. Holcomb,
Petitioner Below, Petitioner                                                       FILED
                                                                                June 3, 2020
vs.) No. 19-0172 (Mercer County 18-C-282)                                    EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Donnie Ames, Superintendent, Mt. Olive
Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION

       Petitioner Ronald W. Holcomb, self-represented, appeals the February 7, 2019, order of
the Circuit Court of Mercer County denying his second petition for a writ of habeas corpus.
Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Mary
Beth Niday, 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.

        In June of 2007, petitioner was indicted in the Circuit Court of Mercer County on the
separate offenses of first-degree murder and abuse by a parent resulting in the death of a child.
Petitioner proceeded to trial, and the jury found him guilty of the lesser-included offense of second-
degree murder and abuse by a parent resulting in the death of a child. By order entered on July 31,
2009, the circuit court sentenced petitioner to a determinate term of forty years of incarceration for
each offense of which he was convicted and ordered that petitioner serve the sentences
consecutively. Petitioner appealed his convictions. By order entered on November 18, 2010, this
Court refused petitioner’s appeal. On February 27, 2012, petitioner filed his first petition for a writ
of habeas corpus in the circuit court. Petitioner was denied habeas corpus relief, and we affirmed
that denial in 2017. See Holcomb v. Ballard, No. 16-1176, 2017 WL 4772896 (W. Va. Oct. 23,
2017) (memorandum decision).

        On October 11, 2018, petitioner, pro se, filed a second petition for a writ of habeas corpus
in the circuit court. Petitioner raised thirteen grounds for relief and reserved the right to raise
additional grounds if later discovered. Of the thirteen grounds for relief, two asserted that West
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Virginia Code § 61-8D-2a(a), which sets forth the offense of abuse by a parent resulting in the
death of a child, was unconstitutional for nonsensical reasons. 1 Petitioner also asserted that his
sentences were unconstitutionally disproportionate, even though that principle does not apply to
his case. 2 Petitioner further asserted ineffective assistance of trial counsel, habeas counsel, and/or
habeas appellate counsel. In addition, petitioner argued that he had the right to file a successive
habeas petition, alleging that he was not adequately advised of his obligation under Losh v.
McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), to raise all applicable habeas grounds in the
omnibus proceeding or have them waived. By order entered on February 7, 2019, the circuit court
rejected petitioner’s contention that habeas counsel failed to adequately discuss the Losh checklist
with him, 3 determined that petitioner’s allegations of ineffective assistance of habeas counsel
could be summarily denied based on the record, and found all other grounds barred by the doctrine
of res judicata, as previously adjudicated and/or waived in the Holcomb habeas proceeding.

        Petitioner now appeals the circuit court’s February 7, 2019, order. This Court reviews
circuit court orders 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.” Syl. Pt. 1, Mathena v. Haines, 219 W. Va.
       417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). However, because we have
before us the denial of petitioner’s second habeas petition, we first consider the application of
Syllabus Point 4 of Losh:


       1
         Petitioner first argued that the Legislature’s enactment of West Virginia Code § 61-8D-
2a(a) constituted a bill of attainder but failed to explain how he was subjected to “trial by
legislature.” Baker v. Civil Service Comm’n, 161 W. Va. 666, 677, 245 S.E.2d 908, 914 (1978)
(quoting U.S. v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1712, 14 L.Ed.2d 484, 488 (1965)).
Petitioner further argued that, while first-degree murder and abuse by a parent resulting in the
death of a child constitute separate offenses, the elements of the child abuse offense needed to be
“harmonized” with those of first-degree murder for West Virginia Code § 61-8D-2a(a) to be
constitutional.
       2
         “While our constitutional proportionality standards theoretically can apply to any criminal
sentence, they are basically applicable to those sentences where there is either no fixed maximum
set by statute or where there is a life recidivist sentence.” Syl. Pt. 4, Wanstreet v. Bordenkircher,
166 W. Va. 523, 276 S.E.2d 205 (1981).
       3
        The checklist of grounds typically used in habeas corpus proceedings, usually referred to
as the Losh checklist, originates from our decision in Losh where we set forth the most common
grounds for habeas relief. See 166 W. Va. at 768-70, 277 S.E.2d at 611-12.
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               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.

166 W. Va. at 762-63, 277 S.E.2d at 608.

        Petitioner argues that the doctrine of res judicata does not apply to this case by alleging
that he was not adequately advised of his obligation under Losh to raise all applicable habeas
grounds in the omnibus proceeding or have them be deemed waived. Based on our review of the
December 12, 2014, omnibus hearing transcript, the Losh checklist was discussed twice. First,
during habeas counsel’s examination of a witness, respondent’s counsel questioned if petitioner
was alleging an error in the grand jury presentation. Habeas counsel responded that petitioner did
not waive that ground on the Losh checklist. Second, during petitioner’s testimony, the circuit
court asked petitioner if he met with habeas counsel to discuss the Losh checklist and whether
petitioner checked “all the issues that [petitioner] wanted [habeas counsel] to raise in [the] habeas
corpus petition.” Petitioner answered affirmatively to both questions. Therefore, we find that
petitioner was adequately advised of his obligation to raise all applicable habeas grounds in the
omnibus proceeding.

       Petitioner further argues that the circuit court should have held an evidentiary hearing and
appointed counsel regarding his ineffective assistance of habeas counsel claims. 4 In Syllabus Point
3 of Anstey, we held:

               “‘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

       4
           In Syllabus Point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), we held:

              In the West Virginia courts, claims of ineffective assistance of counsel are
       to be governed by the two-pronged test established in Strickland v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (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
       proceedings would have been different.

“Failure to meet the burden of proof imposed by either part of the Strickland/Miller test is fatal to
a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden, West Virginia Penitentiary, 207 W.
Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citing State ex rel. Daniel v. Legursky, 195 W. Va. 314,
321, 465 S.E.2d 416, 423 (1995)).


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       evidence filed therewith show to such court’s satisfaction that the petitioner is
       entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner, 156 W. Va. 467, 194
       S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W. Va. 698, 601 S.E.2d 18
       (2004).

237 W. Va. at 412, 787 S.E.2d at 864. Here, based on our review of both the record and our
decision in Holcomb, we find that petitioner’s ineffective assistance of habeas counsel allegations
were insufficient to warrant an evidentiary hearing and the appointment of counsel.

        Finally, petitioner argues that the circuit court failed to make specific findings of fact and
conclusions of law with regard to each ground for relief raised in his petition. In Syllabus Point 1
of State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997), we held that “West Virginia
Code [§] 53-4A-7(c) (1994) requires a circuit court denying or granting relief in a habeas corpus
proceeding to make specific findings of fact and conclusions of law relating to each contention
advanced by the petitioner, and to state the grounds upon which the matter was determined.” Here,
we find that the circuit court’s findings satisfied the requirement set forth in Syllabus Point 1 of
Watson where it (1) rejected petitioner’s contention that habeas counsel failed to adequately
discuss the Losh checklist with him; (2) determined that petitioner’s allegations of ineffective
habeas counsel could be summarily denied based on the record; and (3) found all other grounds
barred by the doctrine of res judicata, as previously adjudicated and/or waived in the Holcomb
habeas proceeding. Therefore, we conclude that the circuit court did not abuse its discretion in
denying petitioner’s second habeas petition.

        For the foregoing reasons, we affirm the circuit court’s February 7, 2019, order denying
petitioner’s second petition for a writ of habeas corpus.

                                                                                      Affirmed.

ISSUED: June 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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