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William J. v. Terry

Supreme Court of West Virginia

May 18, 2018

William J., Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

          (Preston County 17-C-05)

          MEMORANDUM DECISION

         Petitioner William J., [1] pro se, appeals the February 21, 2017, order of the Circuit Court of Preston County dismissing his petition for writ of habeas corpus. Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, by counsel Gordon L. Mowen, II, filed a summary response in support of the circuit court's order.[2] 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.

         At approximately 3:00 a.m. on January 11, 1988, petitioner and his brother took his brother's twelve-year-old sister-in-law from her home to a remote location in Preston County and sexually assaulted her. Once the brothers returned the victim to her residence, she immediately informed her stepfather and identified petitioner and his brother as the perpetrators. The victim's stepfather reported the crimes to the police and took the victim to the hospital. The doctor who examined the victim found many bruises and lacerations which were consistent with the victim's account of kidnapping and sexual assault. The doctor further found trauma to the victim's vagina and anus and detected three recent tears to her hymen. Both the victim and the doctor testified at petitioner's trial.

         Petitioner was convicted of one count of kidnapping, one count of aiding and abetting first-degree sexual abuse, three counts of aiding and abetting first-degree sexual assault, and one count of first-degree sexual assault. The circuit court sentenced petitioner to a life term of incarceration, with the possibility of parole, plus an additional sixty-one to 105 years of incarceration. Petitioner sought review of his convictions before this Court which refused his appeal on January 9, 1990.

         Since the refusal of his criminal appeal, petitioner has filed five petitions for writ of habeas corpus. In his first petition, petitioner set forth twenty-three grounds for habeas relief. However, following this Court's decision in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division ("Zain I"), 190 W.Va. 321, 438 S.E.2d 501 (1993), petitioner initiated a Zain habeas proceeding by filing an application in this Court. This Court granted the application and remanded the Zain habeas case to the circuit court for further proceedings.

         The circuit court denied the Zain habeas petition first. In an August 24, 1995, opinion letter, the circuit court found that, while discredited serologist Fred Zain performed tests on various items of physical evidence in petitioner's case, Mr. Zain's testimony "was not critical to the State's case." The circuit court found that the evidence was sufficient to sustain petitioner's convictions without Mr. Zain's testimony and that his testimony did not have any prejudicial effect on the jury given that "[t]he State's case was extremely strong."[3] First, the victim knew petitioner and identified him at trial. Second, the facts proving force and sexual contact "were shown by the victim, her family (describing the immediate reporting), and the doctor." Accordingly, the circuit court denied the Zain habeas petition by order entered November 29, 1995.

         The circuit court denied petitioner's non-Zain habeas petition on February 26, 1997. Following the denial of relief in the first two habeas cases, petitioner filed his third and fourth petitions claiming that separate attorneys were ineffective in each of the prior proceedings. The circuit court denied the third and fourth habeas petitions on December 10, 2010. Petitioner appealed the December 10, 2010, order in [William J.] v. Ballard ("William J. I"), No. 11-0209, 2012 WL 5869967 (W.Va. November 19, 2012) (memorandum decision). On appeal, this Court affirmed the circuit court's determination that the issues previously raised in the Zain petition and the non-Zain petition "were barred by the doctrine of res judicata or have been waived." Id. at *1. However, because the circuit court inadvertently failed to make findings regarding petitioner's claim that his attorney in his non-Zain proceeding ("non-Zain counsel") was ineffective, this Court remanded the case so that such findings could be made. Id. at *2. In an August 7, 2013, order, the circuit court determined that petitioner's non-Zain counsel did not provide ineffective assistance. Accordingly, this Court affirmed the August 7, 2013, denial of habeas relief in [William J.] v. Ballard ("William J. II"), No. 12-1006 (no Westlaw citation available) (W.Va. September 19, 2014) (memorandum decision).

         Petitioner filed a fifth habeas petition on January 5, 2017. In this petition, petitioner conceded that he was raising issues previously found to have been barred by the doctrine of res judicata. However, petitioner re-raised the barred claims, arguing that the circuit court failed to fully adjudicate his claim that the attorney in the Zain habeas proceeding ("Zain counsel") provided ineffective assistance. Petitioner argued that he could file a successive habeas petition based on newly discovered evidence and a favorable change in the law that could be retroactively applied to his case. By order entered February 21, 2017, the circuit court rejected petitioner's arguments and found that "the grounds raised by [p]etitioner are all Zain issues and have been fully and finally litigated and decided in prior habeas corpus hearings." Accordingly, the circuit court dismissed the petition.

         Petitioner appealed the circuit court's February 21, 2017, dismissal order and, on March 31, 2017, filed a motion for appointment of appellate counsel. By order entered April 5, 2017, this Court ruled that petitioner's motion would be considered with the merits of his appeal.

         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).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). In syllabus point 4 of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held:

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; ...

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