                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Neil Williams,

Petitioner Below, Petitioner                                                        FILED

                                                                                  April 17, 2015
vs) No. 14-0835 (Ohio County 13-C-232)                                         RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Dennis Dingus, Warden, Stevens Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Neil Williams, appearing pro se, appeals the order of the Circuit Court of Ohio
County, entered August 13, 2014, denying his fifth petition for writ of habeas corpus. Respondent
Dennis Dingus, Warden, Stevens Correctional Center, by counsel Christopher S. Dodrill, filed a
summary response.

        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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is affirmed, in part, and
reversed, in part, and this case is remanded to the circuit court with directions to afford petitioner
an opportunity to show why the prohibition against his filing further habeas petitions in Ohio
County should not be imposed.

        On September 14, 1998, an Ohio County grand jury indicted petitioner on fifty-two counts
relating to child sexual offenses. Specifically, the indictment included the following:

       Seventeen counts of sexual assault in the third degree; nineteen counts of sexual
       abuse in the third degree; seven counts of exhibiting obscene material to a minor;
       five counts of photographing a minor in sexually explicit conduct; three counts of
       sexual abuse by a parent, guardian, or a custodian; and one count of sexual abuse in
       the first degree.

The indictment stated that the offenses occurred in July of 1998 as to forty-three counts. As to the
remaining nine counts, the offenses were said to have occurred between October of 1997 and
December of 1997. No victim was identified by name. Instead, the indictment indicated that each
victim’s name was known to the grand jury.

       On November 17, 1998, petitioner entered a guilty plea to fourteen counts of the
indictment pursuant to a plea agreement. The fourteen counts included twelve felonies and two
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misdemeanors. Specifically, petitioner pled guilty to eight counts of sexual assault in the third
degree; one count of sexual abuse in the third degree; two counts of sexual abuse by a parent,
guardian, or a custodian; one count of exhibiting obscene material to a minor; one count of sexual
abuse in the first degree; and one count of photographing a minor in sexually explicit conduct. The
remaining counts of the indictment were dismissed.

        On February 2, 1999, the circuit court sentenced petitioner to nine terms of one to five
years, two terms of ten to twenty years, one term of ten years, one term of six months and one term
of ninety days. Some of the terms were to be served consecutively and some were to be served
concurrently.

        The circuit court re-sentenced petitioner on August 26, 1999, for the purposes of appeal.
On appeal, petitioner’s counsel raised the following assignments of error: (1) whether the
indictment was fatally defective because it failed to name or otherwise identify the alleged victims
of the offenses that it charged; (2) whether the indictment was fatally defective because it failed to
provide sufficient facts to inform petitioner of the nature and cause of the charges against him or to
permit him to raise double jeopardy as a defense to subsequent prosecution; (3) whether the circuit
court erred in accepting petitioner’s involuntary guilty plea at a hastily-convened plea hearing; and
(4) whether the circuit court erred in denying petitioner’s two pre-sentence motions to withdraw
his involuntary guilty plea. This Court refused petitioner’s direct appeal by an order entered March
23, 2000.

        On October 22, 2000, petitioner filed a petition for writ of habeas corpus, and the circuit
court appointed him counsel. Habeas counsel filed a second amended petition on June 6, 2003, and
respondent warden filed his response on June 12, 2003. Subsequently, in a July 21, 2005, agreed
order to correct sentence, the circuit court held that under the statute in effect at the time, the
applicable sentence for sexual abuse by a parent, guardian, or a custodian was five to fifteen years.
Thus, the circuit court found that petitioner had been sentenced to two illegal ex post facto terms of
ten to twenty years under the current version of the statute for the two convictions for sexual abuse
by a parent, guardian, or a custodian. The court re-sentenced petitioner to two five to fifteen terms
on each of those counts, to be served consecutively to each other. The circuit court later denied all
other habeas relief by an order entered November 8, 2005. When petitioner appealed pro se, this
Court refused his appeal on December 6, 2006.

       On March 30, 2009, petitioner filed a pro se motion pursuant to Rule 35(a) of the West
Virginia Rules of Criminal Procedure to reduce his sentence. The circuit court construed that
motion as a petition for a writ of habeas corpus and dismissed the same by order entered April 8,
2008. The circuit court found that “the grounds for relief the Petitioner has asserted have been
previously and finally adjudicated or waived pursuant to [the July 21, 2005, agreed order to correct
sentence].” When petitioner appealed, this Court refused his appeal on November 19, 2009.

       On December 10, 2010, petitioner filed a third habeas petition. Habeas counsel was
appointed, who filed an amended petition and a Losh checklist of grounds for post-conviction


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habeas corpus relief on April 19, 2011.1 Respondent warden filed his response on May 2, 2011. On
May 6, 2011, the circuit court dismissed petitioner’s petition without a hearing concluding that
“the grounds for relief the Petitioner has asserted have been previously and finally adjudicated or
waived.” On September 21, 2012, this Court affirmed the dismissal of petitioner’s third petition.2
Petitioner filed a fourth habeas petition on May 2, 2013, which the circuit court denied on
December 18, 2013, in an order that petitioner did not appeal.

        On August 8, 2014, petitioner filed his fifth habeas petition. The circuit court denied the
petition on August 13, 2014, after making the following findings: (1) “each ground raised in the
Petition has been previously and finally adjudicated and/or waived”; and (2) after a review of “the
pleadings, evidence, and pertinent legal authorities,” the petition was meritless. In addition, the
circuit court directed (a) the Circuit Clerk of Ohio County to refuse further habeas petitions by
petitioner; and (b) petitioner to file further habeas petitions only in the West Virginia Supreme
Court of Appeals.

        Petitioner now appeals the circuit court’s August 13, 2014, order denying his habeas
petition. We apply the following standard of review in habeas cases:

       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, 418, 633 S.E.2d 771, 772 (2006).

                 The circuit court did not abuse its discretion in denying petition.

        The parties dispute whether the doctrine of res judicata bars petitioner’s fifth habeas
petition. In Syllabus Point Four of Losh v. McKenzie, 166 W.Va. 762, 762-63, 277 S.E.2d 606, 608
(1981), 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.

       However, we need not decide this issue because the circuit court made the alternate finding
       1
           See Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).
       2
       See Williams v. Ballard, No. 11–0889, 2012 WL 4373180 (W.Va. Supreme Court)
(memorandum decision).
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that after a review of “the pleadings, evidence, and pertinent legal authorities,” the petition was
meritless. This finding is consistent with Syllabus Point One of Perdue v. Coiner, 156 W.Va. 467,
194 S.E.2d 657, 658 (1973), in which we 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.”

        We have reviewed petitioner’s fifth petition and its attached exhibits, and now determine
that they demonstrate that petitioner is entitled to no relief. The only claim that could potentially
have merit is petitioner’s assertion that the attorney appointed in his third habeas proceeding was
ineffective because he had an undisclosed conflict of interest. Petitioner states that he recently
discovered a February 22, 2011, letter in which the attorney informed the circuit court—but not
petitioner—that his father was Prosecuting Attorney of Ohio County at the time of petitioner’s
direct appeal.

       We find that petitioner fails to show that this letter qualifies as newly discovered evidence
under the applicable standard set forth in the Syllabus of State v. Frazier, 162 W.Va. 935, 253
S.E.2d 534 (1979), 3 for two reasons. First, while petitioner states he obtained the letter in
connection with his civil action in McDowell County,4 he fails to explain why he could not have
       3
          In the Syllabus of State v. Frazier, 162 W.Va. 935, 935-36, 253 S.E.2d 534, 534-35
(1979), this Court held as follows:

               “A new trial will not be granted on the ground of newly-discovered
               evidence unless the case comes within the following rules: (1) The
               evidence must appear to have been discovered since the trial, and,
               from the affidavit of the new witness, what such evidence will be, or
               its absence satisfactorily explained. (2) It must appear from facts
               stated in his affidavit that plaintiff was diligent in ascertaining and
               securing his evidence, and that the new evidence is such that due
               diligence would not have secured it before the verdict. (3) Such
               evidence must be new and material, and not merely cumulative; and
               cumulative evidence is additional evidence of the same kind to the
               same point. (4) The evidence must be such as ought to produce an
               opposite result at a second trial on the merits. (5) And the new trial
               will generally be refused when the sole object of the new evidence is
               to discredit or impeach a witness on the opposite side.” Syllabus
               Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).
       4
         See Williams v. Bonar, No. 14-0327, 2014 WL 6607846, at *3 (W.Va. Supreme Court,
November 21, 2014) (memorandum decision) (dismissing petitioner’s action against various Ohio
County magistrates, judges, prosecutors, defense attorneys, and police officers alleging a
conspiracy to keep him in prison). McDowell County is where the Stevens Correctional Center is
located.
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obtained the letter in connection with his fourth habeas petition filed in 2013. Thus, we determine
that petitioner has failed to demonstrate that he acted with due diligence in obtaining the letter.

        Second, petitioner has also failed to show that evidence that his counsel in his third habeas
proceeding had a conflict of interest ought to produce a different result in the instant case.
Petitioner also had counsel in connection with his second amended petition, and, apart from an
agreed order to correct two illegal sentences, the circuit court denied all of petitioner’s claims in
that proceeding as well. Because counsel who filed the second amended petition failed to achieve a
better result, petitioner cannot show that anything counsel did—or did not do—in the third habeas
proceeding was determinative of that proceeding. Thus, we find that petitioner’s claim that habeas
counsel was ineffective in his third proceeding fails to satisfy the second prong of the Strickland
/Miller standard.5 Therefore, we conclude that the circuit court did not abuse its discretion in
denying petitioner’s fifth petition as meritless.6

                              The circuit court impermissibly barred

                      petitioner from filing further petitions in Ohio County.


        Petitioner does not make this issue a separate assignment of error, but argues it in support
of his contention that the circuit court abused its discretion in denying his habeas petition. Thus, it
is understandable that respondent warden does not address whether the circuit court impermissibly
barred petitioner from filing further petitions in Ohio County. Nevertheless, we address this issue
because “[u]nder West Virginia Constitution art. III, § 17, prisoners have a Constitutional right to

       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, 687 (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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117
(1995).
       6
          In arguing that the circuit court abused its discretion in denying the petition, petitioner
also asserts that Judge Sims was disqualified from ruling on the petition because petitioner
recently sued the judge as a member of an alleged conspiracy to keep petitioner incarcerated. We
affirmed Judge Sims’ dismissal with prejudice from petitioner’s McDowell County action in
Williams v. Bonar, No. 14-0327, 2014 WL 6607846, at *3 (W.Va. Supreme Court, November 21,
2014) (memorandum decision). Petitioner states that he has now filed a similar action in Ohio
County. Nevertheless, respondent warden argues that petitioner’s only claim against Judge Sims is
that Judge Sims has ruled against petitioner in his habeas proceedings. Respondent warden further
argues that such a claim does not mean that Judge Sims has a conflict of interest such that he was
disqualified from ruling on petitioner’s instant petition. We agree with respondent warden based
on our prior finding that Judge Sims and other Ohio County judicial officers enjoyed absolute
judicial immunity from petitioner’s action because his only claim was that “they ruled against him
during the course of his criminal case and in subsequent habeas proceedings.” Id. at *2. Therefore,
we find no merit to petitioner’s argument that Judge Sims was disqualified from ruling on the
instant petition.
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meaningful access to our courts subject to reasonable limitations imposed to protect courts from
abuse.” Syl. Pt. 2, Mathena at 418, 633 S.E.2d at 772. In Syllabus Point Five of Mathena, we held,
in pertinent part, that prior to the entry of any order restricting a prisoner’s access to the courts,
“the circuit court must provide the prisoner an opportunity to show cause why such a limitation
should not be imposed.” Id. at 418-19, 633 S.E.2d at 772-73. The circuit court did not afford
petitioner such an opportunity before directing the Ohio County Circuit Clerk to refuse further
habeas petitions by petitioner. Therefore, we reverse the circuit court’s prohibition against
petitioner filing further habeas petitions in Ohio County and remand the case with directions to
afford petitioner an opportunity to show why such a prohibition should not be imposed.

        For the foregoing reasons, we (1) affirm the decision of the Circuit Court of Ohio County
to deny petitioner’s fifth habeas petition; (2) reverse the circuit court’s prohibition against
petitioner filing further habeas petitions in Ohio County; and (3) remand the case with directions to
afford petitioner an opportunity to show why such a prohibition should not be imposed.

                                                              Affirmed, in Part, Reversed, in Part,
                                                              and Remanded with Directions.

ISSUED: April 17, 2015

CONCURRED IN BY:

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




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