                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



                                                                                   FILED
Jonathan Lind,
Petitioner Below, Petitioner                                                   October 13, 2017
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 16-1033 (Kanawha County 16-P-37)                                            OF WEST VIRGINIA


David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Jonathan Lind, pro se, appeals the October 20, 2016, order of the Circuit Court
of Kanawha County denying his petition for a writ of habeas corpus. Respondent David Ballard,
Warden, Mt. Olive Correctional Complex, by counsel Robert L. Hogan, 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.

       On March 31, 2006, petitioner killed Edward Ayers in the victim’s home. According to
the investigating officer’s grand jury testimony, petitioner then stole the victim’s credit card and
vehicle and went on a shopping spree. On July 26, 2006, the grand jury returned a five-count
indictment against petitioner: one count of murder, in violation of West Virginia Code § 61-2-1;
one count of first-degree robbery, in violation of West Virginia Code § 61-2-12(a)(1); and three
counts of forgery of a credit card, in violation of West Virginia Code § 61-3-24a(c).

       On the first day of trial, March 26, 2007,1 the circuit court denied petitioner’s March 20,
2007, motion for appointment of co-counsel. The circuit court found that the motion was not
timely filed and that given petitioner’s attorney’s extensive experience, he “would be more than

       1
        We take judicial notice of the trial transcript in petitioner’s criminal case, Criminal Action
No. 06-F-299.

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adequately represented.”

        During the presentation of the State’s case, Steven Jones testified that he accompanied
petitioner on the shopping spree following the victim’s death, during which petitioner used the
victim’s credit card at various retailers and traded the victim’s vehicle for crack cocaine. Mr.
Jones was cross-examined by petitioner’s trial attorney.

        Petitioner testified in his case-in-chief that he went to the victim’s house to “make some
money” by providing sexual favors to the victim. However, an altercation eventually ensued and
petitioner hit the victim with a claw hammer and then took the victim’s wallet, keys, and vehicle.
Petitioner testified that he traded the vehicle for crack cocaine the following morning. Petitioner
admitted that he used the victim’s credit card on two occasions when he was with Mr. Jones.
However, petitioner testified that Mr. Jones used the credit card on the third occasion after
petitioner had given it to Mr. Jones while the two were at the drive-thru at a McDonald’s. Also,
the circuit court allowed petitioner to testify that the victim had a tendency to get into
altercations with other persons.

         Petitioner next called Robert Shingleton to testify as to an altercation Mr. Shingleton had
with the victim in 2004. Mr. Shingleton took the stand outside the presence of the jury and
testified that he would follow his attorney’s advice to invoke his constitutional privilege not to
incriminate himself given the pending appeal of his malicious wounding conviction that resulted
from the 2004 altercation.2 Thereafter, the circuit court excused Mr. Shingleton and petitioner
rested his case.3

       Following jury instructions and closing arguments, the jury convicted petitioner of
second-degree murder, first-degree robbery, and three counts of forgery of a credit card. By
order entered on June 1, 2007, the circuit court sentenced petitioner to an aggregate term of
incarceration of 33 to 150 years. Petitioner sought review of his convictions and sentence in this
Court, which refused his appeal on March 20, 2008.

        On October 2, 2008, petitioner filed a petition for a writ of habeas corpus in the circuit
court, requesting that his conviction be overturned and that he receive a new trial. The circuit
court entered an order appointing an attorney to represent petitioner in that habeas proceeding.
On February 10, 2009, petitioner filed an amended habeas petition. The circuit court held an
evidentiary hearing on February 18, 2009.

        By order entered on April 17, 2009, the circuit court denied petitioner habeas relief. First,
the circuit court found that Mr. Shingleton’s unavailability as a witness did not unduly prejudice
petitioner’s defense. Second, the circuit court found that petitioner’s sentence was not

       2
           See State v. Shingleton, 222 W.Va. 647, 671 S.E.2d 478 (2008) (per curiam).
       3
          During petitioner’s three-day trial, each party presented several other witnesses. However,
that testimony is not relevant to the issues petitioner has raised in his habeas proceedings.

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unconstitutionally disproportionate to his crimes. However, the circuit court failed to note
whether it ensured that petitioner’s attorney had explained to him that any claim on the Losh
checklist that was not raised in the habeas proceeding would be deemed waived.4

       On April 28, 2009, petitioner filed a notice of appeal. Petitioner’s first habeas counsel
was relieved from further representation and a new attorney was appointed to represent him in
his habeas appeal. However, no appeal was filed from the circuit court’s April 17, 2009, order
denying petitioner’s first habeas petition.

        On November 17, 2009, petitioner filed a second habeas petition. By order entered on
February 5, 2010, the circuit court appointed an attorney to represent petitioner. On October 22,
2010, petitioner’s habeas attorney filed an amended petition. The material submitted to the
circuit court by petitioner, pro se, and by his attorney in the second habeas proceeding raised
various constitutional claims, several of which petitioner failed to raise in the first habeas
proceeding, as well as those claims that were denied in that proceeding. On December 12 and 14,
2012, the circuit court held an evidentiary hearing in the second habeas proceeding. In the
interest of allowing petitioner a full and thorough review, the circuit court allowed him to present
evidence on all grounds for relief asserted in his amended habeas petition, including those that
the circuit court denied in the first habeas proceeding.

        By order entered on January 9, 2014, the circuit court denied petitioner’s second habeas
petition. The circuit court first found that, while the appellate attorney in the first habeas
proceeding failed to file an appeal, petitioner was not prejudiced by that failure because all
grounds “he asserted in his initial habeas petition and in his second habeas petition have been
collectively considered, addressed, and ruled upon in the instant [o]rder.” Next, the circuit court
found that, in the second habeas proceeding, petitioner was advised of “his obligation to raise all
grounds for post-conviction relief in one proceeding.”

        Third, the circuit court found that petitioner’s trial attorney from the first habeas
proceeding testified that he discussed the Losh checklist with petitioner and that petitioner “fully
understood that any issue he did not raise at that time was waived forever.” The circuit court
further found that, during petitioner’s testimony, “he conceded that [his attorney] had reviewed
the Losh [l]ist with him and that he understood it at that time.” Next, the circuit court determined
that petitioner’s habeas attorney was not ineffective by failing to raise the issue of trial counsel’s
performance because the trial record reflected “no grounds on which to base any allegation of
ineffective assistance of trial counsel.”

        Fifth, the circuit court rejected petitioner’s contention that he could not be found guilty of
first-degree robbery if his intent to steal from the victim was not formed until after the use of
force. The circuit court found that petitioner’s argument was not supported by his own trial

       4
         In Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we
compiled a non-exclusive list of potential grounds that a circuit court should address with a habeas
petitioner as to whether each ground was being either waived or raised in the proceeding.

                                                  3
testimony that he clearly intended to take the victim’s property. Finally, with regard to those
grounds petitioner previously raised in the first habeas proceeding, the circuit court adopted and
incorporated by reference the findings set forth in its April 17, 2009, order denying petitioner’s
habeas relief.

        Petitioner appealed the circuit court’s January 9, 2014, order denying his second habeas
petition to this Court, which affirmed the denial of his second habeas petition in Lind v. Ballard
(“Lind I”), No. 14-0116, 2015 WL 5125884, at *7 (W.Va. August 31, 2015) (memorandum
decision).5 In Lind I, we declined to consider the issue of whether petitioner’s habeas attorney in
his second proceeding was ineffective, finding that the claim “would more appropriately be
raised in a new petition for writ of habeas corpus.” Id. at *4.

        Petitioner filed a third habeas petition on January 29, 2016, raising ineffective assistance
of counsel in his second such proceeding.6 By order entered on October 26, 2016, the circuit
court denied the habeas petition without a hearing and without the appointment of counsel.
Petitioner filed an appeal from the circuit court’s October 26, 2016, order and a motion for
appointment of appellate counsel on November 2, 2016. By scheduling order entered on
November 21, 2016, we deferred ruling on the motion for appointment of appellate counsel,
which we now consider with the merits of petitioner’s appeal.

        We apply the following standard of review in habeas appeals:

                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 syllabus points 1 and 4 of
Losh, we held as follows:

               An omnibus habeas corpus hearing as contemplated in W.Va. Code [§§]
        53-4A-1 [through 53-4A-11] occurs when: (1) an applicant for habeas corpus is
        represented by counsel or appears pro se having knowingly and intelligently
        waived his right to counsel; (2) the trial court [e]nquires into all the standard
        grounds for habeas corpus relief; (3) a knowing and intelligent waiver of those
        grounds not asserted is made by the applicant upon advice of counsel unless he
        knowingly and intelligently waived his right to counsel; and, (4) the trial court

        5
            We take judicial notice of the appellate record in Lind I.
        6
            Petitioner filed supplements to his habeas petition on April 7, 2016, and September 2,
2016.


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       drafts a comprehensive order including the findings on the merits of the issues
       addressed and a notation that the defendant was advised concerning his obligation
       to raise all grounds for post-conviction relief in one proceeding.

               . . . .

               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. Pts. 1 and 4, 166 W.Va. at 762-763, 277 S.E.2d 607-608.

         On appeal, petitioner contends that he still has not had an omnibus habeas corpus hearing
because (1) his appellate attorney failed to appeal the circuit court’s April 17, 2009, denial of relief
in the first habeas proceeding; (2) the April 17, 2009, order lacked a notation that the court ensured
that petitioner’s attorney had explained to him that any claim on the Losh checklist that was not
raised would be deemed waived; and (3) the court generally failed to make sufficient findings
regarding the issues that petitioner raised in his habeas proceedings. Respondent counters that
petitioner has had a prior omnibus hearing, which triggers the application of the doctrine of res
judicata to generally bar the filing of successive habeas petitions pursuant to syllabus point 4 of
Losh. We agree with respondent.

        We find that petitioner has had a prior omnibus hearing and that the doctrine of res
judicata applies to this case. First, we found in Lind I that by allowing petitioner to re-raise the
claims in the second habeas proceeding, the circuit court cured the failure of the appellate
attorney in the first habeas proceeding to file an appeal in that case. 2015 WL 5125884, at *4.
Second, the circuit court included a notation in its January 9, 2014, order denying habeas relief
that petitioner was advised of “his obligation to raise all grounds for post-conviction relief in one
proceeding.” Moreover, in Lind I, we concurred with the circuit court’s finding that the trial
attorney in the first habeas proceeding had, in fact, “explained the Losh list and waiver
requirements to petitioner and [that] petitioner understood his rights.” Id. at *4. Third, we find
that in both petitioner’s criminal case and his three habeas proceedings, the circuit court has
made ample findings showing that petitioner’s grounds for habeas relief are without merit, which
we will now explain in our analysis under syllabus point 4 of Losh.

        Petitioner alleges that his second habeas trial attorney failed (1) to present the testimony
of Mr. Shingleton; (2) to assert that the jury was not properly instructed with regard to the intent
to steal, which is necessary to support a conviction for first-degree robbery; (3) to argue that
petitioner was denied due process of law when co-counsel was not appointed in his criminal trial;
(4) to assert that there was insufficient evidence to support the third conviction for forgery of a
credit card; (5) to call Mr. Jones as a witness so that he could be impeached; (6) to assert that the
circuit court’s June 1, 2007, sentencing order failed to set forth sufficient findings to support
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petitioner’s sentence; and (7) to argue that count two of the indictment, which charged petitioner
with first-degree robbery, was defective.

       In syllabus point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we held as
follows:

              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.

        We find that our decision in Lind I precludes petitioner’s arguments except for his claim
that count two of the indictment was defective.7 First, the circuit court determined that Mr.
Shingleton’s unavailability as a witness did not unduly prejudice petitioner’s defense in a finding
that was later incorporated and adopted by reference in the circuit court’s January 9, 2014, order,
from which petitioner had an adequate appeal. On appeal, in Lind I, petitioner raised Mr.
Shingleton’s unavailability as a witness as part of his ineffective assistance of trial counsel
claim.8 We found in Lind I that petitioner waived that claim on his Losh checklist. 2015 WL
5125884, at *5. We further found in Lind I that even if there was no waiver, petitioner’s trial
attorney adequately represented him and that “there are no grounds to support a claim of
ineffective assistance of counsel.” Id. at *3. Therefore, we conclude that Mr. Shingleton’s
unavailability as a witness was fully and finally adjudicated in Lind I.

         Also, in the circuit court’s January 9, 2014, order, it rejected petitioner’s contention that
he could not be found guilty of first-degree robbery if his intent to steal from the victim was not
formed until after the use of force. In rejecting this argument, the circuit court found that
petitioner’s own trial testimony reflected that he intended to take the victim’s property. However,
on appeal, in Lind I, petitioner argued that his trial attorney failed to request a complete jury
instruction regarding the intent to steal. We rejected this argument by finding that petitioner’s
trial attorney adequately represented him and that “there are no grounds to support a claim of
ineffective assistance of counsel.” 2015 WL 5125884, at *3. Therefore, we conclude that
petitioner’s claim that the jury was not properly instructed with regard to the intent to steal was
fully and finally adjudicated in Lind I.


       7
        As respondent notes, our memorandum decision in Lind I constitutes an adjudication on
the merits. See In Re: T.O., 238 W.Va. 455, __, 796 S.E.2d 564, 573 (2017); State v. McKinley,
234 W.Va. 143, 151, 764 S.E.2d 303, 311 (2014).
       8
         Petitioner argued that his trial attorney should have requested a continuance of his trial
until such time as that Mr. Shingleton became available as a witness.


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         We find that our conclusion in Lind I that petitioner’s trial attorney provided effective
assistance also precludes his argument that he was denied due process of law when co-counsel
was not appointed. As the circuit court found, petitioner was “more than adequately represented”
by trial counsel.

        Next, we group together and address petitioner’s claims that there was insufficient
evidence to support the third conviction for forgery of a credit card and that his second habeas
attorney should have called Mr. Jones as a witness so that he could be impeached. Petitioner
alleges that Mr. Jones perjured himself at petitioner’s trial because it was Mr. Jones—not
petitioner—who used the victim’s credit card to buy food at McDonald’s. However, we rejected
in Lind I petitioner’s argument that the State knowingly used perjured testimony as “nothing in
the record indicates that any witness committed perjury.” 2015 WL 5125884, at *6. Therefore,
we conclude that these issues were fully and finally adjudicated in Lind I.

         Also, in Lind I, we concurred with the circuit court’s determination that petitioner’s
sentence was not unconstitutionally disproportionate to his crimes, finding that he “murdered a
man, robbed him, and engaged in forgery.” Id. at *5. Therefore, we conclude that in adjudicating
the proportionality claim, our decision in Lind I summarized the reasons why the circuit court
sentenced petitioner as it did in its June 1, 2007, sentencing order. Accordingly, we find no merit
in petitioner’s claim that the circuit court’s sentencing rationale is not reflected in the record.

        We now turn to petitioner’s argument that count two of the indictment, which charged
petitioner with first-degree robbery, was defective. In syllabus points 1 and 2 of State v. Miller,
197 W.Va. 588, 476 S.E.2d 535 (1996), this Court held as follows:

               Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires
       that a defendant must raise any objection to an indictment prior to trial. Although a
       challenge to a defective indictment is never waived, this Court literally will
       construe an indictment in favor of validity where a defendant fails timely to
       challenge its sufficiency. Without [an] objection, the indictment should be upheld
       unless it is so defective that it does not, by any reasonable construction, charge an
       offense under West Virginia law or for which the defendant was convicted.

               Generally, the sufficiency of an indictment is reviewed de novo. An
       indictment need only meet minimal constitutional standards, and the sufficiency of
       an indictment is determined by practical rather than technical considerations.

 “Animus furandi, or the intent to steal or to feloniously deprive the owner permanently of his
property, is an essential element in the crime of robbery.” Syl. Pt. 2, State v. Hudson, 157 W.Va.
939, 206 S.E.2d 415 (1974). Count two alleges that petitioner feloniously committed violence on
the victim’s person and “then and there feloniously and violently did steal, take[,] and carry




                                                7
away” specified items of his property. Therefore, we conclude that count two of the indictment
met minimal constitutional standards and charged an offense under West Virginia law.9

       In syllabus point 1 of Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973), we held as
follows:

               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.

We find that all of the grounds petitioner alleges that his second habeas trial attorney failed to
raise are without merit and/or were encompassed within the issues fully and finally adjudicated
in his appeal in Lind I. Therefore, we conclude that the circuit court properly denied petitioner’s
third habeas petition without a hearing and without the appointment of counsel. Finally, given
that the circuit court properly denied petitioner’s habeas petition, we deny petitioner’s motion for
appointment of appellate counsel pursuant to West Virginia Code § 53-4A-4(a), which provides
that such motions in habeas appeals shall be denied when “the grounds assigned therefor are
without merit or are frivolous . . . .”10

        For the foregoing reasons, we affirm the circuit court’s October 20, 2016, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                         Affirmed.


ISSUED:     October 13, 2017


       9
         Petitioner also contends that count two of the indictment is defective because the
investigating officer’s testimony failed to provide the grand jury an evidentiary basis on which it
could find probable cause that petitioner committed first-degree robbery. However, we find that
the grand jury transcript belies this contention.
       10
          With regard to appointment of counsel in habeas cases, petitioner argues that the United
States Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), constitutes a favorable
change in the law, which is another exception to the doctrine of res judicata. See Syl. Pt. 4, Losh,
166 W.Va. at 762-63, 277 S.E.2d at 608. Respondent counters that petitioner’s contention that
appointment of counsel is constitutionally required is based on a misreading of Martinez. We agree
with respondent. In Martinez, the Supreme Court reiterated that, as a matter of constitutional law,
“there is no right to counsel in collateral proceedings.” 566 U.S. at 9. As the Supreme Court’s
decision in Martinez did not hold that appointment of counsel is required in habeas proceedings,
we find that petitioner’s reliance on that decision is misplaced.

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CONCURRED IN BY:

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




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