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Tex H. v. Ballard

Supreme Court of West Virginia

March 24, 2017

Tex H., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         Fayette County 15-C-306-H

          MEMORANDUM DECISION

         Petitioner Tex H., [1] 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.

         The Court has considered the parties' briefs and the record on appeal.[2] 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 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.[3] The circuit court sentenced petitioner to consecutive terms for an aggregate sentence 199 to 480 years in prison.

         In 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.

         Petitioner 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."

         However, 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.

         By 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."[4] Finally, the circuit court deemed all issues not raised in petitioner's amended habeas petition or the Losh checklist "intentionally, knowingly[, ] and voluntarily waived."

         On November 19, 2015, petitioner filed the instant habeas petition on the ground that he was innocent of the alleged offenses against S.L.M.[5] 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).

         Petitioner 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).

         On 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.

         As an 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.[6] 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 ...


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