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Larry C. v. Ames

Supreme Court of West Virginia

February 22, 2019

Larry C., Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          (Fayette County 16-C-139)

          MEMORANDUM DECISION

         Petitioner Larry C., [1] pro se, appeals the September 14, 2016, order of the Circuit Court of Fayette County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [2] by counsel Shannon Frederick Kiser, 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. 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 his underlying criminal case, petitioner was indicted on May 8, 2007, on sixteen counts of sexual assault in the second degree, in violation of West Virginia Code § 61-8B-4; thirty-two counts of sexual abuse in the first degree, in violation of West Virginia Code § 61-8B-7(a)(1); thirty-two counts of sexual abuse by a parent, guardian, or custodian, in violation of West Virginia Code § 61-8D-5; and sixteen counts of sexual assault in the first degree, in violation of West Virginia Code § 61-8B-3. The crimes occurred between September of 2005 and December of 2006. Petitioner's victims, A.C.H. and A.S.H., were the minor granddaughters of the woman with whom petitioner had lived for many years. The children, who-at the time of petitioner's crimes-were approximately thirteen and ten years old, frequently visited with petitioner and their grandmother, often spent the night at the couple's home, and referred to petitioner as their "grandfather."

         Petitioner's jury trial commenced on January 28, 2008. Both child victims testified. A.C.H. was then sixteen years old and A.S.H. was thirteen years old. Each child testified that, when their grandmother was asleep or on the computer in another room, petitioner would grab her breasts or place his hand down her pants and rub her vagina. Each girl also testified that petitioner had, on a few occasions, inserted his finger or the tip of his finger into her vagina. The State also presented the testimony of a counselor, who had treated the children. To counter this evidence, petitioner presented the testimony of a qualified clinical psychologist, who testified that the victims' stories were identical and seemed rehearsed.

         With regard to petitioner's status as the children's custodian, the State presented evidence that: (1) petitioner cohabited for years with the children's grandmother; (2) petitioner had an ongoing relationship with the children; (3) the children were frequently in petitioner's home and in his presence while their grandmother was asleep or occupied elsewhere; (4) the children's father expected petitioner to watch over the children when they were in petitioner's home; (5) the children's mother expected petitioner to keep the children safe while they were with him; and (6) petitioner ensured that the children were fed while they were with him. At the close of evidence, the circuit court instructed the jury on the legal definition of "custodian" set forth in West Virginia Code § 61-8D-1(4).[3] Thereafter, the jury determined that petitioner served as the child victims' custodian and found petitioner guilty on all ninety-six counts of the indictment.

         On February 8, 2008, petitioner filed a motion for a new trial in which he argued that the circuit court improperly excluded the defense from playing for the jury the recordings of the victims' forensic interviews. The circuit court found that it was not necessary to admit the recordings to impeach the victims' testimony because their trial testimony was not contradictory to their recorded testimony. On March 20, 2008, the circuit court sentenced petitioner to an aggregate term of fifty-one to 175 years of incarceration. Petitioner sought review of his convictions and sentence in this Court, which refused his appeal on September 9, 2009.

         Petitioner filed a petition for a writ of habeas corpus on March 9, 2010. The circuit court appointed an attorney for petitioner and held evidentiary hearings on November 15, 2012, and June 24, 2013. At the November 15, 2012, hearing, the circuit court questioned petitioner regarding his Losh checklist to ensure that he was aware that any issue not initialed would be deemed waived:[4]

THE COURT: All right. I'm going over the list to see the grounds, the possible grounds, that you are raising, that you have initialed . . . .
[At that point, the circuit court identified, one by one, each ground that [p]etitioner had initialed, and [p]etitioner confirmed, one by one, that he had selected each ground.]
****
THE COURT: All right. Now, you do realize, by not checking all the others, . . . and as I say, there's 53 grounds listed. Do you understand that, by not putting your initial[s] out from the other ground, that you are waiving or giving up your right to contest those areas in the future?
THE PETITIONER: Yes, I do, Your Honor.
THE COURT: And[, ] have you gone over completely this list with [petitioner's habeas attorney].
THE PETITIONER: Yes, Your Honor.
THE COURT: Okay. And[, ] do you have any question about ...

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