                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Ruben C.,
Petitioner Below, Petitioner                                                     FILED
vs.) No. 19-0185 (Berkeley County 17-C-340)                                    April 6, 2020
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
J.T. Binion, Superintendent,                                                    OF WEST VIRGINIA

Huttonsville Correctional Center,
Respondent Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Ruben C., 1 by counsel Sherman L. Lambert, Sr., appeals the January 31, 2019,
order of the Circuit Court of Berkeley County denying his second petition for post-conviction
habeas corpus relief. Respondent, J.T. Binion, Superintendent, Huttonsville Correctional Center,
by counsel Andrea Nease Proper, filed a response in support of the habeas court’s denial of the
petition for a writ of habeas corpus. On appeal, petitioner argues that the habeas court erred in
denying him a writ of habeas corpus without an omnibus evidentiary hearing, and that it erred in
failing to find that trial counsel’s assistance was ineffective.

        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 affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

       Petitioner and the victim, M.C.-1 (“victim”), were married for seventeen years and had two
children, C.C. and M.C.-2. 2 On December 14, 2011, the victim obtained a domestic violence

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
       2
        Because the victim and one of the children share the same initials, we refer to them,
respectively, as M.C.-1 and M.C.-2 where necessary in this memorandum decision. At the time of
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protective order against the petitioner following an incident that occurred on December 7, 2011.
The victim testified at trial that, on December 7, 2011, she was riding with petitioner in a car when
she told him she wanted a divorce. She testified that he became very upset, drove her to an
unknown location, hit her in the chest three times, and destroyed her glasses. Following that
incident, petitioner moved out of the home.

        On January 20, 2012, the victim returned to her home from a shopping trip to find petitioner
waiting for her. As she entered the home, petitioner took the bags of food she was carrying and
threw them on the floor. Petitioner then hit the victim in the face twice and pushed her onto the
sofa while yelling at her. He forced her into the bedroom and onto the bed where he drew a knife
and cord and told her numerous times that, if she did not reconcile with him, he would kill her.
Ultimately, in fear for her life, the victim promised petitioner that they would reconcile. Petitioner
then forcibly removed the victim’s clothes and had sexual intercourse with her while the knife and
cord remained on the bed within petitioner’s reach.

        Later that day, the children returned from school. When C.C. arrived home, he was
surprised to see petitioner there because he had previously moved out. C.C. noticed that the victim
had been crying. C.C. asked petitioner what he did to her and petitioner replied that they had only
been talking. Both the victim and C.C. testified that while petitioner was watching television with
M.C.-2 in the living room, the victim slipped into C.C.’s bedroom and asked him to quietly call
the police. The police arrived approximately ten minutes later and arrested petitioner. The victim
gave a statement to police in Spanish. C.C. translated the statement and wrote it down on M.C.-
1’s behalf. 3 The victim found the knife and cord, which petitioner had hidden, and gave them to
the police. Although C.C. testified that he had never seen the knife or the cord before, the family’s
landlord testified that he had given the knife to petitioner and that petitioner had used it to butcher
animals outside the family’s home. Some of the victim’s injuries were photographed immediately
following the incident.

         At petitioner’s May of 2012 trial, the jury heard testimony regarding the events described
above. The jury also heard from several witnesses who testified that the victim had bruising and
red marks on her face and neck after the January 20, 2012, incident as well as a bloodied lip. The
photographs of the victim’s injuries were published to the jury and admitted into evidence. At the
conclusion of the trial, the jury found petitioner guilty of first-degree sexual assault, domestic
battery, and violation of a domestic violence protection order. Thereafter, the trial court denied
petitioner’s post-trial renewed motion for judgment of acquittal and motion for a new trial. By
order entered February 21, 2013, petitioner was sentenced to not less than fifteen nor more than
thirty-five years of incarceration for the count of first-degree sexual assault, one year of
incarceration and a $250 fine for the domestic battery charge, and time served and a $500 fine for
the violation of the domestic violence protection order. Because petitioner had been incarcerated


the underlying incident between petitioner and M.C.-1, C.C. was age sixteen and M.C.-2 was age
twelve.
       3
       Translation was necessary as the victim’s native language is Spanish, and she does not
speak English.


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for the charges since January of 2012, the court ordered that he had served his sentences for the
domestic battery charge and the violation of the domestic violence protection order. Petitioner was
ordered to begin serving his sentence for the first-degree sexual assault conviction with no credit
toward his sentence on that count.

        In April of 2013, petitioner appealed his conviction and sentence to this Court. In May of
2014, this Court affirmed petitioner’s conviction and sentence by memorandum decision. See State
v. Ruben C., No. 13-0341, 2014 WL 2404301 (W. Va. May 30, 2014)(memorandum decision)
Petitioner then filed a petition for a writ of habeas corpus, with an accompanying Losh 4 list, in the
circuit court. Petitioner raised several grounds in support of an ineffective assistance of counsel
claim. On October 27, 2015, the habeas court entered an order denying the petition for a writ of
habeas corpus. The court found that petitioner’s counsel sufficiently argued throughout the trial,
including during his opening statement and closing argument that the victim fabricated her story,
which was the defense’s primary theory. The habeas court also concluded that petitioner’s trial
counsel (1) effectively cross-examined the officers on the victim’s injuries, and (2) made a
strategic decision not to ask the victim whether her injuries were self-inflicted because her answer
would likely not have advanced the defense’s theory. The habeas court’s decision was affirmed by
this Court in Ruben C. v. Ballard, No. 15-1111, 2016 WL 6678989 (W. Va. Nov. 14,
2016)(memorandum decision).

        Petitioner filed his second petition for post-conviction habeas corpus relief on July 19,
2017, in which he argued that the trial court abused its discretion in advising the victim of her Fifth
Amendment right against self-incrimination while on the stand and in failing to grant her
immunity.5 Petitioner also argued that he received ineffective assistance of counsel. The habeas
court denied the petition for a writ of habeas corpus on January 31, 2019. The court found that the
issue of the trial court’s handling of the victim’s Fifth Amendment rights was previously finally
adjudicated. It further determined that the issue of ineffective assistance of counsel was expressly
waived by petitioner’s failure to raise the issue during his first habeas proceeding. The court noted
that Petitioner had also signed a Losh list expressly waiving allegations of constitutional error in
the trial court’s ruling on evidence and any prejudicial statements made by the trial judge. The
habeas court also determined that petitioner was entitled to no relief on the merits of his allegations.
Petitioner failed to state how the trial court erred in advising the victim of her Fifth Amendment
rights or what alternative procedure the trial court could have taken. Petitioner also failed to state
what trial counsel should have done differently. The habeas court found trial counsel’s handling
of the victim’s testimony to be reasonable. It is from this order that petitioner now 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



       4
           Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
       5
        Petitioner presented evidence suggesting the victim violated the law. Accordingly, the trial
court advised the victim of her Fifth Amendment right against self-incrimination.
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        of 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).

         On appeal, petitioner raises two assignments of error. First, he contends that the habeas
court erred in denying his second petition for a writ of habeas corpus without providing him an
omnibus evidentiary hearing. Petitioner argues that he was denied the opportunity to expand upon
his assertion that the trial court erred in advising the victim when to invoke her Fifth Amendment
rights against self-incrimination during the trial. In the alternative, petitioner asserts the trial court
could have appointed independent legal counsel to represent the victim. Petitioner also argues that
the trial court should have granted the victim immunity. In that regard, he cites to State v. Harvey,
165 W. Va. 164, 267 S.E.2d 727 (1980), in which this Court held that, in some cases, it may be
necessary to grant a witness immunity in order to preserve a defendant’s Sixth Amendment right
to subpoena witnesses and have them testify. He states that this Court found that a trial court has
the discretion under West Virginia Code § 57-5-2 6 to determine if immunity should be granted to
a particular witness.

        We find petitioner’s first assignment of error to be meritless. This is petitioner’s second
petition for a writ of habeas corpus. In his first petition, petitioner was afforded a full omnibus
evidentiary hearing and raised several allegations of ineffective assistance of trial counsel. During
those proceedings, petitioner signed a Losh list, expressly waiving all allegations except ineffective
assistance of habeas counsel, newly discovered evidence, or a change in the law. Thus, petitioner
waived all other claims of error. 7 As for petitioner’s claim that he should have been granted an

        6
            West Virginia Code § 57-5-2 states that

        In any criminal proceeding no person shall be excused from testifying or from
        producing documentary or other evidence upon the ground that such testimony or
        evidence may criminate or tend to criminate him if the court in which he is
        examined is of the opinion that the ends of justice may be promoted by compelling
        such testimony or evidence. And if, but for this section, the person would have been
        excused from so testifying or from producing such evidence, then if the person is
        so compelled to testify or produce other evidence and if such testimony or evidence
        is self-criminating, such self-criminating testimony or evidence shall not be used or
        receivable in evidence against him in any proceeding against him thereafter taking
        place other than a prosecution for perjury in the giving of such evidence, and the
        person so compelled to testify or furnish evidence shall not be prosecuted for the
        offense in regard to which he is so compelled to testify or furnish evidence, and he
        shall have complete legal immunity in regard thereto.
        7
        In Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), this
court held that

                [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
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omnibus hearing to expand upon his claims of ineffective assistance of trial counsel, it has been
waived. Further, petitioner’s original appellate counsel raised, on direct appeal, several issues
concerning the victim’s Fifth Amendment rights at trial. This Court reviewed the trial court’s
statements and the victim’s testimony on appeal and found no error. Since this issue has previously
been fully adjudicated, and in accordance with syllabus point 3 of Anstey v. Ballard, 237 W. Va.
411, 787 S.E.2d 864 (2016), we find that the habeas court did not err in denying petitioner an
omnibus evidentiary hearing to expand upon these issues. 8

       In his second assignment of error, petitioner argues that he received ineffective assistance
of counsel at his criminal trial. Specifically, petitioner contends that his trial counsel should have
objected to the trial court’s handling of the victim’s Fifth Amendment rights during her testimony.
He asserts that had trial counsel objected to the inappropriate comments made by the trial court in
advising the victim of her Fifth Amendment rights, the outcome of the case would have probably
been affected.

        We reject petitioner’s second assignment of error. As stated above, petitioner has waived
all allegations except ineffective assistance habeas counsel, newly discovered evidence, or a
change in the law. See Losh 166 W. Va. at 762, 277 S.E.2d at 608. Here, petitioner asserts that he
received ineffective assistance of trial counsel. This issue is clearly barred by res judicata because
petitioner failed to raise the issue in his first habeas corpus proceeding. Thus, it will not now be
considered by this Court.

       For the foregoing reasons, we affirm the habeas court’s January 31, 2019, order.

                                                                                              Affirmed.




       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.

(emphasis added.)
       8
           In Anstey, this Court held that

       “‘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.’
       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).

Id. 237 W. Va. at 429, 787 S.E.2d at 882.



                                                   5
ISSUED: April 6, 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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