                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


James H. Farris,

Petitioner Below, Petitioner
                                                       FILED
                                                                                    June 10, 2013
vs) No. 12-1094 (Jefferson County 09-C-342)                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden, Mount Olive Correctional Complex,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner James H. Farris’s appeal, filed by counsel Christopher Prezioso, arises from the
Circuit Court of Jefferson County, wherein petitioner’s petition for writ of habeas corpus was
denied by order entered on August 23, 2012. Respondent David Ballard, Warden, by counsel
Brandon C.H. Sims, filed a response in support of the circuit court’s decision. Petitioner
thereafter 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 Rules of Appellate
Procedure.

         In 1996, a jury convicted petitioner on four counts of second degree sexual assault. He
was sentenced to thirty to seventy-five years in prison. Petitioner thereafter filed two petitions for
writ of post-conviction habeas corpus. The first was denied in 2000. The second was also denied,
from which petitioner brings the instant appeal.

       Petitioner argues that the circuit court erred in refusing to hold an omnibus evidentiary
hearing on his second petition when he argued that (1) his trial counsel was deficient, (2) there
was an improper conspiracy to convict him, (3) he was incompetent during his trial proceedings,
and (4) his sentence violates the Eighth Amendment of the United States Constitution.
Respondent contends that the circuit court committed no error in denying habeas corpus relief.
Respondent argues that petitioner’s arguments were either raised and addressed in his first
habeas corpus petition, were waived in his first petition, or are not reviewable issues.

       This Court reviews appeals of circuit court orders denying habeas corpus 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


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       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).

       We also bear in mind the following:

       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 uncovers no error or abuse of discretion by the circuit court in
denying habeas corpus relief to petitioner. Petitioner either waived his claims or did not raise any
new arguments concerning ineffective assistance of habeas counsel, newly discovered evidence,
or a change in the law that would retroactively apply in his favor as directed by aforementioned
Syllabus Point Four of Losh v. Mckenzie, supra. The record provides that petitioner has not
raised any grounds in his second habeas corpus petition that warrant relief. Under these
circumstances, the circuit court properly denied petitioner’s second habeas corpus petition.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.

ISSUED: June 10, 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




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