Tex H.,  pro se, appeals the December 23, 2015,
order of the Circuit Court of Fayette County dismissing his
petition for a writ of habeas corpus. David Ballard, Warden,
Mount Olive Correctional Complex, by counsel Zachary Aaron
Viglianco, filed a summary response in support of the circuit
court's order. Petitioner filed a reply.
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.
November of 2004, petitioner was convicted in the Circuit
Court of Fayette County of eight counts of incest, eight
counts of sexual abuse in the second degree, and eight counts
of sexual abuse by a parent or custodian. The victim was
petitioner's step-granddaughter, S.L.M., who testified
against him at trial. The circuit court sentenced petitioner to
consecutive terms for an aggregate sentence 199 to 480 years
January of 2005, petitioner filed a motion for new trial
asserting that S.L.M. wanted to recant her testimony. On
February 7, 2005, S.L.M. executed an affidavit stating that
she lied at trial and petitioner did not commit sexual
offenses against her. After a hearing, the circuit court
denied the motion for new trial. Following the denial of
petitioner's motion for a new trial, he appealed his
convictions to this Court and argued that the circuit court
committed reversible error in refusing to hear S.L.M.'s
recantation. On November 17, 2005, this Court refused
petitioner's criminal appeal.
has filed four petitions for a writ of habeas corpus.
Petitioner received a hearing and appointment of counsel in
his second habeas proceeding. On February 11, 2009, at the
beginning of the hearing, petitioner's attorney listed
the issues that petitioner wanted the circuit court to
consider. Next, petitioner's habeas attorney began
presentation of petitioner's case by introducing the
deposition testimony of his trial attorney into evidence.
Petitioner's attorney also called S.L.M. as a witness
and, in the first part of her testimony, introduced into
evidence three exhibits regarding S.L.M.'s recantation:
(1) S.L.M.'s February 7, 2005, affidavit stating that she
lied at trial and petitioner did not commit sexual offenses
against her; (2) a 2005 letter S.L.M. wrote petitioner in
prison apologizing for her trial testimony; and (3) a
statement provided by S.L.M. to the police, transcribed in
2006, in which she also recanted her trial testimony. When
the February 7, 2005, affidavit was introduced into evidence,
S.L.M. testified that she signed the affidavit of her own
"free will" and that, when she was asked by the
police if she was being threatened to change her testimony,
she answered, "no."
following the admission of the three exhibits, S.L.M.
testified that her trial testimony was truthful, that
petitioner did commit the sexual offenses, that she lied in
both the affidavit and the police statement, and that she
signed the false affidavit because her aunt paid her $2, 000
to do so. At the conclusion of S.L.M.'s testimony,
petitioner's attorney accepted the circuit court's
offer to confer with petitioner in private. After that
conference, petitioner's attorney called petitioner as a
witness to testify regarding his allegations that his trial
counsel was ineffective.
order entered October 23, 2009, the circuit court denied
petitioner's request for habeas relief. First, the
circuit court found that S.L.M.'s trial testimony was
"clear, unequivocal, true[, ] and accurate" and
that, during the February 11, 2009, hearing, she
"clearly and unequivocally, fully and convincingly,
disavowed" her subsequent recantation of that testimony.
The circuit court further found that "substantial"
evidence was presented at trial, "upon which an
impartial jury of twelve adults could and did justifiably
find . . . [p]etitioner guilty beyond a reasonable doubt of
all crimes, " of which he was convicted. The circuit
court also rejected petitioner's allegations of
ineffective assistance of counsel. The circuit court
specifically found that the grounds for habeas relief raised
in petitioner's May 28, 2008, Losh checklist
"fail[ed] to rise to the requisite constitutional
dimension to be sufficient habeas corpus
relief." Finally, the circuit court deemed all
issues not raised in petitioner's amended habeas petition
or the Losh checklist "intentionally,
knowingly[, ] and voluntarily waived."
November 19, 2015, petitioner filed the instant habeas
petition on the ground that he was innocent of the alleged
offenses against S.L.M. Petitioner based his claim of innocence
on the following grounds: (1) the circuit court failed to
provide petitioner with due process of law in his second
habeas proceeding; (2) petitioner's habeas attorney
failed to provide effective assistance in that proceeding;
and (3) at trial, the State failed to disclose exculpatory
evidence in the form of a diary alleged authored by S.L.M.
and evidence regarding "a mentally challenged adult
female"-in whose case petitioner was accused, but not
indicted. The circuit court dismissed the petition on
December 23, 2015, finding that "[p]etitioner has . . .
exhausted all of his available post-conviction judicial
remedies" because "[p]etitioner, with counsel, has
already failed in an [o]mnibus [h]abeas [c]orpus 2009
hearing" in an application of the doctrine of res
judicata pursuant to syllabus point four of Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
now appeals the circuit court's December 23, 2015, order
dismissing his habeas petition. We apply the following
standard of review in habeas appeals:
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).
appeal, petitioner raises twenty-three issues. "This
Court will not pass on a non[-]jurisdictional question which
has not been decided by the trial court in the first
instance." Syl. Pt. 2, Sands v. Sec. Trust Co.,
143 W.Va. 522, 102 S.E.2d 733 (1958). Accordingly, we address
only those issues raised in the instant habeas petition
before the circuit court, plus petitioner's contention
that the circuit court failed to make findings adequate to
support the dismissal of that petition. Respondent asserts
that none of petitioner's issues have merit. We agree.
initial matter, petitioner contends that his second habeas
proceeding was not conducted fairly. See State ex rel.
Peck v. Goshorn, 162 W.Va. 420, 422, 249 S.E.2d 765, 766
(1978) (finding that concept of fundamental fairness is
synonymous with due process of law). Based on our review of
the circuit court's October 23, 2009, order and the
transcript of the February 11, 2009, hearing, we find that
petitioner's second habeas proceeding was fundamentally
fair. First, the circuit court acted in
accordance with syllabus point two of Losh, pursuant
to which an omnibus habeas corpus proceeding is generally
comprised of (1) appointment of counsel; and (2) an
evidentiary hearing. 166 W.Va. at 762, 277 S.E.2d at 608.
Next, at the February 11, 2009, hearing, the circuit court
heard argument by petitioner's habeas attorney regarding
the existence of exculpatory evidence and the attorney's
statement that prosecutorial misconduct was an issue
"set forth in . . . the amended [habeas] petition."
In response, respondent's attorney argued that there was
"no evidence [that] the State had any reason to have any
knowledge of [S.L.M.'s] recantation prior to trial."
Thus, the substantive issue present in petitioner's
instant habeas petition-whether the State improperly withheld
exculpatory evidence-was addressed in his second habeas
proceeding. Lastly, the circuit court's October 23, 2009,
order reflects that it addressed the two issues on ...