                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                     FILED
Gerald M.,
Petitioner Below, Petitioner                                                      June 17, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 17-1047 (Kanawha County 17-P-151)                                           OF WEST VIRGINIA



Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Gerald M.,1 pro se, appeals the October 17, 2017, order of the Circuit Court of
Kanawha County denying his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,2 by counsel Scott E. Johnson, 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.

       In 1995, the circuit court sentenced petitioner to two consecutive terms of fifteen to thirty-
five years of incarceration following his conviction on two counts of first-degree sexual assault
       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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
        Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.
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against a minor. Petitioner subsequently appealed these convictions, which this Court refused by
order entered September 16, 1996.

         Petitioner has filed five petitions for writs of habeas corpus. Petitioner filed a first habeas
petition on October 6, 1997, alleging (1) failure to strike jurors; (2) improper admission of bad act
evidence; (3) failure to have the victim psychologically evaluated; (4) violation of the
Confrontation Clause; (5) failure to disclose exculpatory evidence; (6) improper cross-examination
of petitioner’s character witnesses; (7) petitioner’s absence from bench conferences; (8) failure to
grant petitioner’s request for a reduction of sentence; and (9) improper ex parte communications
with the jury. Petitioner received an evidentiary hearing and appointment of counsel in his first
habeas proceeding. Following the evidentiary hearing, the circuit court denied habeas relief by
order entered November 23, 2003.

         Subsequently,3 petitioner filed a fourth habeas petition, alleging: (1) ineffective assistance
of trial counsel; (2) improper admission of bad act evidence; (3) violation of the Confrontation
Clause; (4) improper expert testimony; (5) unconstitutionally impaneled jury; and (6) improper ex
parte communications with the jury. By order entered November 15, 2011, the circuit court denied
habeas relief, finding that the petition was “based on grounds previously reviewed by the [circuit
court] and does not set forth any new grounds for relief.” Petitioner appealed the denial of his
fourth habeas petition in Gerald K.M. v. Ballard, No. 12-0021, 2013 WL 149598 (W.Va. Jan. 14,
2013) (memorandum decision). This Court affirmed the denial of habeas relief, finding that
“petitioner was not restricted on presenting any evidence or arguments at his . . . omnibus
evidentiary hearing [in his first habeas proceeding].” Id. at *2. On March 9, 2017, petitioner filed
a fifth habeas petition, alleging: (1) ineffective assistance of habeas counsel; (2) excessive
sentencing; (3) actual innocence; and (4) cumulative error. By order entered October 17, 2017, the
circuit court addressed each of petitioner’s grounds for relief and denied his habeas petition. It is
from the circuit court’s October 17, 2017, order that petitioner now appeals.

       In syllabus point one of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016), we held:

               “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).

Furthermore, in syllabus point four of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981),
we held:


       3
         Petitioner filed a second habeas petition in 2005, which the circuit court dismissed as
“frivolous” by order entered November 21, 2005. In 2009, Petitioner fled a third habeas petition
that the circuit court dismissed as raising issues “previously reviewed” by order entered January
20, 2009. Petitioner’s second and third petitions are not relevant to the issues raised in this appeal.
                                                   2
               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.

        On appeal, petitioner argues that the evidentiary hearing in his first habeas proceeding did
not constitute an omnibus hearing because he did not have a full and fair opportunity to raise all
arguably meritorious issues. Respondent counters that the instant petition is a meritless successive
petition barred by the doctrine of res judicata. We agree with respondent and note our finding in
Gerald K.M. that “petitioner was not restricted on presenting any evidence or arguments at his . .
. omnibus evidentiary hearing [in his first habeas proceeding].” 2013 WL 149598, at *2.4

         Upon our review of the record, we find that, in its October 17, 2017, order, the circuit court
explained why none of petitioner’s grounds for relief entitled him to habeas relief. 5 In Call v.
McKenzie, 159 W.Va. 191, 194, 220 S.E.2d 665, 669 (1975), we found that post-conviction
litigation must end at some point because, “[w]hile a defendant is entitled to due process of law,
he is not entitled to appeal upon appeal, attack upon attack, and [h]abeas corpus upon [h]abeas
corpus.” See White v. Haines, 215 W.Va. 698, 705 n.9, 601 S.E.2d 18, 25 n.9 (2004) (affirming
denial of the petitioner’s second habeas petition, finding that it “is difficult to muster any sound
reasoning for giving [him] another bite at the apple”). Here, having reviewed the circuit court’s
October 17, 2017, “Final Order,” we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions, which we find address petitioner’s assignments of error. The Clerk is
directed to attach a copy of the October 17, 2017, order to this memorandum decision. 6 We,
therefore, conclude that the circuit court properly denied petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s October 17, 2017, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                           Affirmed.

       4
         Our ruling in Gerald K.M. constitutes a final decision on the merits pursuant to Rule 21(a)
of the West Virginia Rules of Appellate Procedure. See In Re: T.O., 238 W.Va. 455, 464, 796
S.E.2d 564, 573 (2017) (finding that a memorandum decision is an adjudication on the merits);
State v. McKinley, 234 W.Va. 143, 151, 764 S.E.2d 303, 311 (2014) (same).
       5
         On appeal, petitioner raises the issues of judicial misconduct and improper ex parte
communications with the jury by the trial judge. Respondent counters that these issues were not
asserted in the instant petition. After reviewing this petition, we agree with respondent and decline
to address issues not raised before the circuit court. See Syl. Pt. 2, Sands v. Sec. Trust Co., 143
W.Va. 522, 102 S.E.2d 733 (1958) (holding that we “will not pass on a non[-]jurisdictional
question which has not been decided by the trial court in the first instance”).
       6
           Petitioner’s last name has been redacted from the circuit court’s order. See fn.1, supra.
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ISSUED: June 17, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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