                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Elliot G.,
Petitioner Below, Petitioner                                                        FILED
                                                                                 August 29, 2014
                                                                               RORY L. PERRY II, CLERK
vs) No. 13-1298 (Harrison County 13-C-363)                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION

         Petitioner Elliot G.,1 appearing pro se, appeals the order of the Circuit Court of Harrison
County, entered December 4, 2013, that summarily dismissed his third petition for writ of habeas
corpus. Respondent warden, by counsel Julie A. Warren, filed a summary response. 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.

        It was reported to a tip hotline that petitioner was sexually abusing his stepdaughter, C.S.2
During the investigation, police and Child Protective Services (“CPS”) interviewed C.S. who
reported that petitioner had sexually assaulted her the previous day. C.S. was taken to the hospital
where a nurse found a “healed hymen laceration” and “anus intact without injury.” During the
medical evaluation, it was discovered that C.S. was still wearing the same underwear from the
previous day. DNA testing showed that petitioner’s genetic material was in the crotch area of
C.S.’s underwear.

       At trial, C.S. testified that the day before she met with police and CPS, petitioner had put
his penis in her mouth, “crotch,” and “rear end” and that petitioner had asked her if it felt good.
C.S. further testified that on a previous occasion, petitioner put his penis in her “crotch” and
mouth. Petitioner testified at trial as the only defense witness. Petitioner denied molesting C.S. and
offered an explanation for why his genetic material was found on C.S.’s underwear. Petitioner
       1
        Because of sensitive facts, we protect the identities of those involved. See State ex rel.
W.Va. Dept. of Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1
(1987).
       2
           C.S. was born on August 16, 1992, and the tip was received on April 9, 2004.
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testified that he masturbated while on a toilet in the family’s home and that C.S.’s underwear
probably brushed against some of his genetic material at a later time when she was using the toilet.

       Following trial, petitioner was convicted of four counts of first degree sexual assault and
two counts of sexual abuse by a parent, guardian, or custodian. After a presentence investigation,
he was sentenced to a total of 60 to 140 years in prison. Petitioner appealed, but his appeal was
refused by this Court on October 6, 2005.

        Petitioner filed his first petition for a writ of habeas corpus in 2006. The circuit court
provided petitioner with counsel, and an omnibus hearing was held on June 12, 2006. At the
hearing, the circuit court questioned petitioner about the Losh 3checklist he filed and confirmed
that petitioner understood that he was waiving all grounds he was not raising. Petitioner chose to
raise the following grounds: (1) denial of counsel; (2) ineffective assistance of counsel; (3)
consecutive sentences for the same transaction; (4) suppression of helpful evidence; (5) double
jeopardy; (6) refusal to subpoena witnesses; (7) constitutional errors in evidentiary rulings; (8)
erroneous jury instructions; (9) prejudicial statements by the prosecution; (10) insufficiency of the
evidence; and (11) a severer sentence than expected. In support of his petition, petitioner offered
his own testimony and the testimony of his trial counsel. On March 8, 2007, the circuit court
denied relief.

        In January of 2009, petitioner filed a second habeas petition in which he raised, inter alia,
the ineffective assistance of counsel in the prior habeas proceeding. The circuit court again
appointed counsel for petitioner and afforded him another hearing on September 9, 2009. At the
beginning of the hearing, respondent warden moved for summary judgment on all grounds
previously adjudicated and/or waived. After the circuit court granted the motion, the only claim
remaining was the ineffective assistance of first habeas counsel who testified at the September 9,
2009, hearing. Subsequently, the circuit court denied the second petition on April 15, 2010.
Petitioner appealed the circuit court’s second denial of habeas relief, but this Court refused his
appeal on October 20, 2010.

         On August 21, 2013, petitioner filed the instant habeas petition alleging the following
grounds: (1) ineffective assistance of second habeas counsel; (2) ineffective assistance of first
habeas counsel; (3) ineffective assistance of trial counsel; (4) failure by the prosecution to provide
timely discovery; (5) impermissible delay in the circuit court’s ruling on C.S.’s competency to
testify; (6) a flawed indictment due to the fact that the grand jury only heard the prosecution’s side
of the case; and (7) denial of a fair trial because of cumulative error. Respondent warden responded
to the petition and asked the circuit court to summarily dismiss it because all grounds had been
previously adjudicated and/or waived. Petitioner filed a reply to respondent warden’s response. On
December 4, 2013, the circuit court summarily dismissed petitioner’s third petition, finding as
follows:



       3
           See Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).
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               Having reviewed the Motion for Successive Petition and Third Petition,
       reviewed the court file for Civil Action Number 06-C-14-1, reviewed the court file
       for Civil Action Number 09-C-11-1, and reviewed the applicable case law, the
       Court concludes that the Petitioner is not entitled to a third writ of habeas corpus
       because all contentions in fact or law relied upon in the Third Petition for post-
       conviction habeas corpus relief have been finally adjudicated or waived in Civil
       Action Numbers 06-C-14-1 and 09-C-11-1. Furthermore, the documentary
       evidence filed in Civil Action Number 09-C-11-1 shows to the Court’s satisfaction
       that the Petitioner is not entitled to relief upon his claim of ineffective assistance of
       second habeas counsel.

        Petitioner now appeals the circuit court’s December 4, 2013, order summarily dismissing
the instant petition. We review a circuit court’s order that summarily dismisses a habeas petition
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). In addition, in Syllabus
Point 2 of Losh, this Court held as follows:

       A judgment denying relief in post-conviction habeas corpus is res judicata on
       questions of fact or law which have been fully and finally litigated and decided, and
       as to issues which with reasonable diligence should have been known but were not
       raised, and this occurs where there has been an omnibus habeas corpus hearing at
       which the applicant for habeas corpus was represented by counsel or appeared pro
       se having knowingly and intelligently waived his right to counsel.

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

        On appeal, petitioner argues that the circuit court should have appointed him habeas
counsel and given him a hearing for a third time. Respondent warden counters that while a
petitioner is entitled to due process of law, “he is not entitled to appeal upon appeal, attack upon
attack, and habeas corpus upon habeas corpus.” Call v. McKenzie, 159 W.Va. 191, 194, 220
S.E.2d 665, 669 (1975). In his reply, petitioner criticizes respondent warden’s reliance on Call.
However, this Court has made similar statements more recently. For example, in White v. Haines,
215 W.Va. 698, 705 n. 9, 601 S.E.2d 18, 25 n. 9, cert. denied, 543 U.S. 938 (2004), this Court
affirmed the circuit court’s denial of a second habeas petition, determining that the petitioner there
was not entitled to “another bite at the apple.”

       We find that the same logic applies to the instant case. The only claim that is possibly not
barred by the doctrine of res judicata is petitioner’s contention that second habeas counsel was
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ineffective.4 The circuit court stated that from a review of the record from the second habeas
proceeding, it was satisfied that petitioner could not show that counsel was ineffective. However,
even assuming, arguendo, that counsel’s performance was deficient in some way, this Court finds
that petitioner could not then meet the prejudice prong of the applicable standard.5 Petitioner’s
genetic material was found on his stepdaughter’s underwear, and his explanation as to how that
material could have gotten on her underwear if he did not sexually assault her is less than
convincing. Therefore, this Court determines that the result of the second habeas proceeding
would not have been any different regardless of counsel’s performance. Accordingly, the Court
concludes that the circuit court did not abuse its discretion in denying petitioner’s third petition for
a writ of habeas corpus.

       For the foregoing reasons, we affirm.


        4
            In Syllabus Point 4 of Losh, this Court held 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; newly discovered
                 evidence; or, a change in the law, favorable to the applicant, which
                 may be applied retroactively.

166 W.Va. at 762-763, 277 S.E.2d at 608.

Petitioner also mentions, in passing, “newly discovered evidence” and a purported favorable
change in the law. These claims can be quickly refuted. First, petitioner asserts that a newly
discovered medical report shows that it was another individual who sexually abused C.S.
However, in his third petition, petitioner alleged that trial counsel “simply didn’t know what to do
with” a medical record that showed a different person sexually abusing C.S. (Petitioner also made
a similar argument in his direct appeal.) If the report or record was available at trial, it fails to meet
the definition of “newly discovered evidence.” See Syl., State v. Frazier, 162 W.Va. 935, 253
S.E.2d 534 (1979). Second, petitioner alleges that Crawford v. Washington, 541 U.S. 36 (2004),
has changed the way grand juries are to be conducted. However, in Crawford, the Supreme Court
reinvigorated an accused’s constitutional right to confront witnesses at trial (not the grand jury
stage). Accordingly, Crawford does not stand for the change in the law that petitioner believes it
does.
        5
          In West Virginia, claims of ineffective assistance of counsel are governed by the
two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984), which requires the
following: (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 proceeding would have been different. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d
114 (1995) (adopting Strickland ).
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                                     Affirmed.

ISSUED: August 29, 2014

CONCURRED IN BY:

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




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