                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Orville Green,
                                                                                   FILED
                                                                                  March 29, 2013
Petitioner Below, Petitioner                                                  RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs) No. 11-1696 (Wayne County 99-C-029)

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


                               MEMORANDUM DECISION
       Petitioner Orville Green, by counsel Lori M. Peters, appeals the Circuit Court of Wayne
County’s “Order Dismissing Post-Conviction Habeas Corpus Petition” entered on November 16,
2011. The State, by counsel Laura Young, has filed its response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was indicted on multiple felonies in March of 1997. On December 9, 1997,
petitioner was convicted by jury of three counts of sexual assault in the first degree, two counts
of sexual assault in the second degree, five counts of incest, three counts of sexual assault by a
custodian, and two counts of sexual assault by a parent. Petitioner filed his first petition for writ
of habeas corpus on February 11, 1999, and an omnibus hearing was held on September 26,
2000. On December 8, 2000, the circuit court entered an order denying the petition, and
petitioner’s appeal to this Court was refused on June 25, 2001. Petitioner then filed a federal
habeas petition, which was denied on February 26, 2009, as not all state remedies had been
exhausted for each contention. Petitioner then filed the instant action and was appointed counsel
on February 18, 2011. The circuit court consolidated this claim with the original habeas petition.
On November 16, 2011, the circuit court entered an order dismissing the habeas petition after
holding numerous hearings, finding that four of petitioner’s grounds have been previously and
finally adjudicated or waived, and finding no merit in the other assignments of error.

        On appeal, petitioner argues first that his prior habeas counsel and his prior appellate
counsel were ineffective and thus he could not knowingly and intelligently waive any issue as his
habeas counsel and his habeas appellate counsel did not discuss with him every potential viable
ground for relief, resulting in meritorious areas of challenge not being raised. He therefore argues
that he should be permitted to relitigate several issues raised in his prior habeas proceedings. In
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relation to the issues previously litigated, petitioner argues that the indictment against him was
based on hearsay, false and misleading evidence, and violated his constitutional rights; that there
was prosecutorial misconduct; that the second trial1 violated the double jeopardy clause; that his
appellate counsel was ineffective; that his trial counsel was ineffective; that the evidence at trial
could not reasonably support a finding of guilt beyond a reasonable doubt; that his sentence was
excessive; that the totality of his violations denied him his fundamental right to a fair trial; and,
that one of the jurors seated in his trial was related to a deputy sheriff.

       The State argues in favor of the circuit court’s order, pointing out that petitioner has
claimed that every one of his prior attorneys was ineffective, and that the circuit court has found
that none of them were ineffective. Moreover, the State notes that petitioner’s assignments of
error were previously litigated in the prior habeas and have been previously and finally
adjudicated.

       This Court reviews appeals of circuit court orders denying habeas corpus relief 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.” 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).With regard
to subsequent petitions for writs of habeas corpus, we have 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.

Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). Our review of the record
reflects no clear error or abuse of discretion by the circuit court, as the circuit court properly
found that petitioner’s prior counsel was not ineffective. This Court also finds that each
assignment of error was addressed, individually or in total. Having reviewed the circuit court’s
“Order Dismissing Post-Conviction Habeas Corpus Petition” entered on November 16, 2011, we
hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the
assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit
court’s order to this memorandum decision.

          As to petitioner’s final assignment of error regarding the jury in the underlying criminal

1
    Petitioner’s first criminal trial ended in a jury deadlock and a mistrial was declared.
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trial, this Court has held in Syllabus Point 4 of State ex rel. McMannis v. Mohn, 163 W.Va. 129,
254 S.E.2d 805 (1979) that “[a] habeas corpus proceeding is not a substitute for a writ of error in
that ordinary trial error not involving constitutional violations will not be reviewed.” Petitioner
raises only ordinary trial error in this assignment of error, which is not proper in a second habeas
proceeding.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


ISSUED: March 29, 2013

CONCURRED IN BY:

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




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