Jackie M. Martin, Petitioner Below, Petitioner
Michael Martin, Acting Warden, Huttonsville Correctional Center, Respondent Below, Respondent
Jackie M. Martin, by counsel Reggie R. Bailey, appeals the
Circuit Court of Wood County's October 13, 2016, order
denying his amended second petition for writ of habeas
corpus. Respondent Michael Martin, Acting Warden, by counsel
Robert L. Hogan, filed a response.  On appeal, petitioner argues
that the circuit court erred in denying him habeas corpus
relief when he was denied effective assistance of prior
habeas counsel and due to the imposition of unconstitutional
sentences for his kidnapping and second-degree robbery
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.
January of 2000, petitioner was indicted on one count each of
kidnapping, aggravated robbery, impersonation of a
law-enforcement officer, extortion, and first-degree sexual
abuse. These charges stemmed from an incident that occurred
in Williamstown, West Virginia, on January 6, 2000.
Petitioner made repeated and threatening calls to a female
acquaintance, the victim in this matter, at her place of work
demanding $150. The victim left work early due to being upset
and fearful over these threatening calls. As the victim was
walking home from work, petitioner drove up and demanded that
she get into his vehicle. Petitioner drove the victim to her
apartment, where he verbally, physically, and sexually abused
her in an effort to induce her to provide him the money.
While petitioner and the victim were at the victim's
apartment, the victim's grandmother arrived after
learning that the victim had left work. The victim testified
that petitioner was holding her wrist tightly during the time
that her grandmother was there, so she did not alert her
grandmother to the danger she was in for fear that petitioner
would hurt her more or harm her grandmother. Ultimately, the
victim's grandmother left, and the victim obtained a
payday loan to provide petitioner the $150 he demanded. The
victim later reported petitioner to the police, and he was
arrested that evening.
trial, petitioner asserted an alibi defense. Surveillance
footage from the victim's place of work showed her
leaving work at approximately 8:12 a.m. The victim lived
close to her place of work, and she testified that petitioner
picked her up not long after she left work. Petitioner,
however, presented evidence that he dropped his wife off at
work shortly before 8:00 a.m., was at the dry cleaners
shortly before 8:02 a.m., picked up an acquaintance by the
name of Tammy Hoose to take to school, stopped by Flanders
Brothers Insurance Agency ("Flanders"), and then
dropped Ms. Hoose off at school. Ms. Hoose proceeded to
sign-in at school, marking 8:45 a.m. as her arrival time. All
of these actions purportedly took place across the river from
Williamstown, in Marietta, Ohio.
Wunder, an employee of Flanders, testified that petitioner
was at Flanders on January 6, 2000, for only a few minutes at
some point between 8:20 a.m. and 8:40 a.m. She recounted that
petitioner entered her workplace and asked to speak with
another employee, Julie Hupp. Ms. Hupp, however, was out of
the office for a doctor's appointment. Ms. Wunder
informed petitioner of this fact, and petitioner left the
office. Ms. Wunder also testified that she recalled seeing a
news report of petitioner's arrest later that evening;
however, an employee of the local news station testified that
news of petitioner's arrest did not air until
approximately one week after his arrest, thereby calling into
question the date on which Ms. Wunder saw petitioner. Ms.
Wunder's work calendar, however, contained a notation of
Ms. Hupp's doctor's appointment on January 6. Ms.
Hupp also later provided a doctor's note confirming her
January 6, 2000, appointment. Petitioner's trial counsel
did not present the work calendar or doctor's note, and
he did not call Ms. Hupp as a witness.
conclusion of petitioner's trial, the jury found him
guilty of kidnapping, aggravated robbery, extortion, and
first-degree sexual abuse. Petitioner was sentenced to life
imprisonment with a recommendation of mercy for kidnapping,
forty years of incarceration for aggravated robbery, one year
to five years of incarceration for extortion, and one year to
five years of incarceration for first-degree sexual abuse.
Petitioner's sentences for aggravated robbery,
kidnapping, and first-degree sexual abuse were ordered to run
consecutively, while petitioner's extortion sentence was
ordered to run concurrently to the other
sentences. Petitioner filed a direct appeal, which
this Court refused on May 9, 2001.
Petitioner filed his first petition for writ of habeas corpus
on May 6, 2002. Following the appointment of counsel and the
filing of an amended first petition, the circuit court held
an omnibus hearing. Following the hearing, the parties
submitted supplemental briefing. On May 1, 2006, the circuit
court denied petitioner's amended first petition. This
Court refused petitioner's appeal of the denial of his
amended first petition on November 28, 2006.
filed a second petition for writ of habeas corpus on April
11, 2012, which is the subject of the instant appeal.
Petitioner was appointed counsel and filed an amended second
petition. The circuit court held an omnibus hearing on
petitioner's amended second petition. By order entered on
October 13, 2016, petitioner's amended second petition
was denied. It is from this order that petitioner appeals.
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).
We also bear in mind that
[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