                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



James Timothy Samples,
                                                                                    FILED
                                                                                    April 4, 2014
Petitioner Below, Petitioner                                                   RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 13-0833 (Kanawha County 13-P-326)

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

                               MEMORANDUM DECISION

       Petitioner James Timothy Samples, appearing pro se, appeals the July 29, 2013, order of
the Circuit Court of Kanawha County that dismissed his petition for a writ of habeas corpus
without prejudice pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction
Habeas Corpus Proceedings. Respondent Warden, by counsel Derek Austin Knopp, filed a
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.

       Petitioner was convicted of first degree murder during the commission of an aggravated
robbery and burglary. Petitioner was sentenced to life in prison without a recommendation of
mercy on February 6, 1998. Petitioner filed a direct appeal which was refused by this Court on
November 10, 1998. In a subsequent habeas corpus proceeding, petitioner was appointed counsel
who filed an amended petition alleging errors in jury selection, ineffective assistance of counsel,
and insufficiency of the indictment that led to petitioner’s trial and conviction. Following a May
12, 2011, omnibus hearing, the circuit court denied the petition. Petitioner appealed to this Court
which affirmed the denial of habeas relief in Samples v. Ballard, No. 11–1656, 2013 WL 1501421
(W.Va. Supreme Court, April 12, 2013).

        On June 13, 2013, petitioner filed the instant petition for a writ of habeas corpus alleging
(1) both trial and habeas counsel were ineffective in not raising with the circuit court the fact that
two of his witnesses at trial testified while attired in prison clothing; and (2) petitioner was
deprived of a fair trial because two of his witnesses wore prison clothing when testifying. On July
29, 2013, the circuit court dismissed the petition pursuant to Rule 4(c) which provides, in pertinent
part, as follows: “If the petition contains a mere recitation of grounds without adequate factual
support, the court may enter an order dismissing the petition, without prejudice, with directions
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that the petition be refiled containing adequate factual support. The court shall cause the petitioner
to be notified of any summary dismissal.” As part of its order, the circuit court directed that “[t]he
Clerk of this Court shall serve a copy of this order upon the petitioner.”

       Petitioner appeals the circuit court’s July 29, 2013, order dismissing the petition without
prejudice. 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, 633 S.E.2d 771 (2006).

        On appeal, petitioner asks this Court to extend prior case law and hold a criminal defendant
has a constitutional right to have his incarcerated witnesses testify in civilian clothing rather than
in prison attire. Respondent Warden counters that petitioner’s second petition is barred by the
principles of res judicata as announced in Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606
(1981).1

       This Court notes that it first held that a criminal defendant has no constitutional right to
have his witnesses appear at trial without physical restraints or in civilian attire in State ex rel.
McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831 (1983).
Although this holding is not absolute, the legal principle announced in Mohn has been reaffirmed
in both State v. Allah Jamaal W., 209 W.Va. 1, 543 S.E.2d 282 (2000), and Gibson v. McBride,
222 W.Va. 194, 663 S.E.2d 648 (2008). Therefore, this Court declines to revisit its holding in
Mohn, especially given that petitioner has already had a fair and full opportunity to raise all
relevant issues in a prior habeas proceeding.2 The Court concludes that the circuit court did not
       1
         In Syllabus Point 2 of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), 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.
       2
          A subsequent habeas petition alleging ineffective assistance of habeas counsel is
permissible under Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). However, this Court
notes that in Gibson v. McBride, 222 W.Va. 194, 200, 663 S.E.2d 648, 654 (2008), it found that
defense witnesses testifying in prison clothing and in restraints unduly prejudicial under the
“unique facts” of that case. Therefore, this Court finds that habeas counsel’s omission of the issue
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abuse its discretion in dismissing the petition.

        For the foregoing reasons, we affirm the circuit court’s July 29, 2013, order dismissing the
petition for a writ of habeas corpus without prejudice.

                                                                                         Affirmed.

ISSUED: April 4, 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




from petitioner’s prior proceeding did not fall below an objective standard of reasonableness. See
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (setting forth standard for
determining ineffective assistance of counsel).

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