                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Roger Harper,                                                                       FILED
Petitioner Below, Petitioner
                                                                                 April 21, 2017
                                                                                 RORY L. PERRY II, CLERK
vs) No. 16-0558 (Roane County 16-C-10)                                         SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

David Ballard, Warden,
Mount Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION

       Petitioner Roger Harper, pro se, appeals the order of the Circuit Court of Roane County,
entered on May 26, 2016, dismissing his petition for a writ of habeas corpus. Respondent David
Ballard, Warden, Mount Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a
summary 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 January of 1990, petitioner was indicted on two counts of first-degree murder and one
count of malicious wounding after an altercation at a bar, in which he killed two people and
wounded another. The circuit court committed petitioner to Weston State Hospital for mental
evaluation. While petitioner was determined to be competent to stand trial and criminally
responsible for his conduct, one examiner provisionally diagnosed petitioner with intermittent
explosive disorder.1 The examiner opined that, to confirm that diagnosis, alcohol intoxication
would need to be ruled out. The examiner noted that there were “some questions” as to whether
intermittent explosive disorder was an actual mental condition.

       Petitioner’s trial attorneys sought funding to retain a mental health expert to determine
whether petitioner suffered from intermittent explosive disorder. Upon the circuit court’s approval
of funding, petitioner’s trial attorneys retained Dr. Ralph Smith, Jr., a psychiatrist. Dr. Smith did

       1
        According to that examiner’s report, intermittent explosive disorder is characterized by
“[an] episodic loss control.”

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not diagnose petitioner with intermittent explosive disorder. Rather, Dr. Smith found petitioner
suffered from alcohol abuse. Not satisfied with Dr. Smith’s report, petitioner’s trial attorneys filed
a motion for funding to hire an additional expert.

       The circuit court held a hearing on petitioner’s trial attorneys’ motion for a second expert
on March 4, 1991, at which Dr. Smith was called as a witness. Dr. Smith testified that he was
among that group of mental health professionals who doubted intermittent explosive disorder as a
valid diagnosis. However, Dr. Smith stated that he accepted that the disorder was a recognized
medical diagnosis documented in the Diagnostic and Statistical Manual of Mental Disorders
(“DSM”) then in effect.2 Dr. Smith testified that he evaluated whether petitioner had intermittent
explosive disorder based on the objective criteria listed in the DSM and determined that petitioner
was excluded from having the disorder because one of the rejection criteria was a diagnosis of
substance abuse, which Dr. Smith made in petitioner’s case. Dr. Smith confirmed that he found
that petitioner did not have intermittent explosive disorder “to a reasonable degree of medical
certainty” and that he could not think of any reason why he would have been biased against
making such a diagnosis if justified by the objective criteria. By an order entered on April 18,
1991, the circuit court denied the motion for funding to retain an additional expert on the ground
that “defense counsel was looking for an expert that had the same view as counsel did in regard to
the [i]ntermittent [e]xplosive [d]isorder . . . and that said motion is both unreasonable and
unnecessary[.]”

        In October of 1991, petitioner was found guilty of two counts of first-degree murder and
one count of malicious wounding following a jury trial. With regard to petitioner’s first-degree
murder convictions, the jury did not make any recommendation of mercy. Accordingly, the circuit
court sentenced petitioner to two life terms of incarceration without the possibility of parole, and to
a term of two to ten years of incarceration for petitioner’s conviction for malicious wounding. The
circuit court ordered petitioner to serve his sentences consecutively. Petitioner petitioned this
Court to review his convictions in 1992, and the Court refused his appeal.

         In 1993, petitioner filed a petition for a writ of habeas corpus. The proceedings related to
that filing were protracted. On March 31, 2003, petitioner’s then-counsel filed an amended habeas
petition, which the circuit court dismissed. In its November 14, 2005, order, the circuit court found
that the amended petition was “a mere recitation of possible grounds for relief . . . without
sufficient factual support.” The circuit court designated the dismissal as without prejudice
pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus
Proceedings and gave petitioner leave to file another amended petition. Following the Rule 4(c)
dismissal, petitioner received new habeas counsel, Attorney Dennis H. Curry. Attorney Curry filed
an amended habeas petition on May 25, 2007, alleging that petitioner was denied his right to
present a meaningful defense by the circuit court’s denial of his motion for funding to retain an
additional expert. By an order entered on November 29, 2007, the circuit court found that this
amended petition set forth “a prima facie case” for habeas relief and directed respondent to file a
response. Respondent filed his response on February 11, 2008.
       2
           The DSM in effect in 1991 was the 1987 revision of the third edition.

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        The circuit court denied petitioner’s May 25, 2007, amended habeas petition by an order
entered January 28, 2011. In that order, the circuit court first addressed whether petitioner waived
all grounds for relief other than the issue of the denial of his motion for funding to retain an
additional expert in his criminal proceeding. The circuit court found that petitioner waived all
other grounds on October 4, 2008, when he informed the court by letter that Attorney Curry’s
previously-filed motion to withdraw as counsel resulted from a misunderstanding where he
miscomprehended his attorney’s instructions. Petitioner informed the circuit court that “he did not
desire to waste [Attorney] Curry’s time or the [c]ourt’s time with issues without merit.” The circuit
court found that petitioner specifically stated that “[he] desired to retain [Attorney] Curry as
counsel.”

        The circuit court proceeded to address the single issue raised by Attorney Curry in the May
25, 2007, amended petition, finding that “it was determined by the parties” that the court could
decide the issue “without further evidentiary hearing.” With regard to whether petitioner should
have been allowed to retain an additional expert in his criminal proceeding, the circuit court
reached the same conclusion as it did in its April 18, 1991, order: that the request for another
evaluation to determine whether petitioner had intermittent explosive disorder was “unreasonable
and unnecessary” given that “Dr. Smith conducted an objective evaluation.” The circuit court
noted that it came to this conclusion after “[a] review of Dr. Smith’s testimony.” On May 24, 2011,
Attorney Curry filed a motion for relief from judgment on petitioner’s behalf pursuant to Rule
60(b) of the West Virginia Rules of Civil Procedure. The circuit court denied the Rule 60(b)
motion by an order entered on June 27, 2011. Petitioner appealed the circuit court’s June 27, 2011,
order to this Court which affirmed the denial of the Rule 60(b) motion in State ex rel. Harper v.
Ballard, No. 11-1083, at 2 (W.Va. Supreme Court, February 11, 2013) (memorandum decision).

       On February 14, 2016, petitioner filed the instant habeas petition alleging that Attorney
Curry was ineffective by (1) coercing him into waiving the grounds for relief raised in the
amended petition filed by a previous attorney on March 31, 2003, and dismissed by the circuit
court on November 14, 2005; and (2) appealing the June 27, 2011, order denying Rule 60(b)
motion for relief from judgment instead of appealing the underlying order, entered on January 28,
2011, that denied the amended habeas petition filed by Attorney Curry on May 25, 2007. By order
entered on May 26, 2016, the circuit court dismissed the instant petition on the ground that “the
grounds for relief [petitioner] has asserted in the current [p]etition have been previously and finally
adjudicated or waived.”

        Petitioner now appeals the circuit court’s May 26, 2016, order dismissing his habeas
petition. 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.


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Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). A court having jurisdiction
over habeas corpus proceedings may dismiss a petition for a writ of habeas corpus without a
hearing “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 (1973).

         On appeal, petitioner contends that the circuit court erred in dismissing his instant habeas
petition without a hearing because he raised ineffective assistance of habeas counsel. Respondent
counters that the circuit court properly found that the issues raised in the instant petition were
previously and finally adjudicated and that those issues also lack sufficient merit to warrant a
hearing. We agree with respondent that the issues were previously and finally adjudicated—but
further find, on the merits, that Attorney Curry was not ineffective.

        We first set forth the applicable law. With regard to the application of the doctrine of res
judicata in habeas cases, we held in syllabus point four of Losh v. McKenzie, 166 W.Va. 762, 277
S.E.2d 606 (1981), as follows:

                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[.]

With regard to ineffective assistance of counsel, such claims are governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (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. Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

        Petitioner first alleges that Attorney Curry coerced him into waiving the grounds for relief
raised in the March 31, 2003, amended habeas petition that was filed by a previous attorney. We
find that this issue was adjudicated in the January 28, 2011, order, in which the circuit court found
that petitioner waived those grounds. The circuit court noted that the basis for its finding was a
October 4, 2008, letter in which petitioner informed the court that Attorney Curry’s
previously-filed motion to withdraw as counsel resulted from a misunderstanding where he
miscomprehended his attorney’s instructions. Petitioner informed the circuit court that “he did not
desire to waste [Attorney] Curry’s time or the [c]ourt’s time with issues without merit.” The circuit
court found that petitioner specifically stated that “[he] desired to retain [Attorney] Curry as
counsel.”

        Upon our review of the record, we also agree with the circuit court’s finding that petitioner
voluntarily waived the previously-raised grounds and note that our determination is partially based
on a lack of credibility on the part of petitioner in making this claim. Petitioner alleges that the
circuit court found that the issues raised in the March 31, 2003, petition set forth “a prima facie
case” for habeas relief in its November 29, 2007, order. However, the November 29, 2007, order
reflects that it was the subsequent amended habeas petition filed by Attorney Curry on May 25,
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2007, that set forth “a prima facie case.” In contrast, the circuit court earlier dismissed the March
31, 2003, petition (without prejudice) in a November 14, 2005, order, on the ground the issues
raised therein lacked “sufficient factual support.” Therefore, we find that petitioner’s claim on
appeal that the issues in the March 31, 2003, petition were “viable” is contradicted by the record.
Accordingly, we conclude that petitioner’s allegation that Attorney Curry coerced him into
waiving the grounds for relief raised in the March 31, 2003, amended habeas petition both fails on
the merits and is barred by the doctrine of res judicata as previously and finally adjudicated.

        Second, petitioner alleges that Attorney Curry was ineffective in failing to appeal the
January 28, 2011, order denying the May 25, 2007, amended habeas petition. Given that Attorney
Curry instead appealed the June 27, 2011, order denying the Rule 60(b) motion, petitioner claims
that we never reviewed his argument that he was denied a meaningful defense in his criminal case
on the merits.3 However, we find that the issue of whether petitioner was denied a meaningful
defense by the circuit court’s refusal to approve funding for a second mental health expert was
adjudicated on the merits twice by that court. Two separate circuit judges in two separate
proceedings found that Dr. Smith, an expert retained by petitioner’s trial attorneys, fairly evaluated
petitioner and determined, based on objective criteria, that petitioner did not have intermittent
explosive disorder as his trial attorneys hoped to show that he had. Thus, the circuit court denied
funding for a second expert—and reaffirmed that decision in petitioner’s first habeas
proceeding—on the ground that “defense counsel was looking for an expert that had the same view
as counsel.” Each judge reached that decision after conducting “[a] review of Dr. Smith’s
testimony” at the March 4, 1991, hearing.

        Moreover, the first judge presided at the March 4, 1991, hearing and had the opportunity to
determine Dr. Smith’s credibility during his testimony. Therefore, we find that, even if Attorney
Curry appealed the January 28, 2011, order from the first habeas proceeding, we would still have
affirmed the circuit court’s decision on the ground that we defer to credibility determinations. See
State v. Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995). Accordingly, we find
that the issue of whether petitioner was denied a meaningful defense was previously and finally
adjudicated and that, assuming arguendo that Attorney Curry was ineffective by failing to appeal
the January 28, 2011, order, such an appeal would not have changed the outcome of the first
habeas proceeding. We conclude that the circuit court did not abuse its discretion in dismissing
petitioner’s instant habeas petition.

        For the foregoing reasons, we affirm the circuit court’s May 26, 2016, order dismissing his
petition for a writ of habeas corpus.

                                                                                           Affirmed.


       3
         In syllabus point 4 of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), we held that
“[i]n reviewing an order denying a motion under Rule 60(b), . . . the function of the appellate court
is limited to deciding whether the trial court abused its discretion in ruling that sufficient grounds
for disturbing the finality of the judgment were not shown in a timely manner.”

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ISSUED: April 21, 2017

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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