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Johnson v. Ames

Supreme Court of West Virginia

February 22, 2019

John Rodney Johnson, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Cabell County 17-C-305

          MEMORANDUM DECISION

         Petitioner John Rodney Johnson, pro se, appeals the August 24, 2017, order of the Circuit Court of Cabell County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Robert L. Hogan, filed a 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.

         On January 3, 2003, Thomas Drake was shot and killed outside of a bar in Huntington. In May of 2003, a Cabell County grand jury indicted petitioner for murder. In March of 2004, petitioner received a jury trial which was bifurcated into guilt and penalty phases. On March 12, 2004, the jury found petitioner guilty of first-degree murder. On March 16, 2004, the jury did not make a recommendation of mercy. Accordingly, the circuit court sentenced petitioner to a life term of incarceration without the possibility of parole. This Court refused petitioner's direct appeal on March 2, 2006.

         In August of 2007, petitioner filed a petition for a writ of habeas corpus, and he was subsequently appointed counsel. In January of 2009, petitioner's habeas attorney filed an amended petition with petitioner's initial petition and a "renewed" pro se petition attached as addendums. The circuit court held evidentiary hearings on March 16, 2010, and June 9, 2010. At the March 16, 2010, hearing, petitioner's habeas attorney presented three witnesses including petitioner's trial counsel. At the June 9, 2010, hearing, petitioner's habeas attorney presented two additional witnesses and made motions requesting that discovery be allowed, the record be expanded, and an expert be retained to review the surveillance footage from the bar. At the conclusion of the hearing, the circuit court denied those motions and denied petitioner's habeas petition, finding that petitioner did not carry "his burden in this matter."

         Petitioner appealed the circuit court's February 21, 2013, order denying habeas relief in Johnson v. Ballard, No. 13-0292, 2014 WL 901706 (W.Va. March 7, 2014) (memorandum decision).[2] In petitioner's appellate brief, his appellate attorney raised several issues, including ineffective assistance of trial counsel, and also informed this Court of other issues that petitioner wanted to raise "pro se." In Johnson, this Court affirmed the denial of habeas relief, rejecting petitioner's claims including his allegation that trial counsel provided ineffective assistance. 2014 WL 901706, at *2-5. The Court further found that the circuit court adequately addressed "petitioner's pro se contentions" and "determined that petitioner expressly waived certain grounds on the Losh list."[3] Id. at *5.

         On May 19, 2017, petitioner filed a second habeas petition, re-raising the grounds for relief from his first habeas proceeding and alleging that his habeas attorney and his habeas appellate attorney provided ineffective assistance. By order entered August 24, 2017, the circuit court denied the petition. The circuit court found that the doctrine of res judicata barred petitioner from re-raising the grounds for relief from his first habeas proceeding and that neither petitioner's habeas attorney nor his habeas appellate attorney provided ineffective assistance.

         Petitioner now appeals the circuit court's August 24, 2017, order denying habeas relief. 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).

         On appeal, petitioner argues that the doctrine of res judicata does not bar him from raising any of his claims from his first habeas proceeding. Respondent counters that petitioner may only raise ineffective assistance of habeas counsel as an exception to the doctrine of res judicata, but also concedes that two other issues were "not actually" addressed in the prior proceeding. In syllabus points two and four of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held:

2. A judgment denying relief in post-conviction habeas corpus is res judicata on questions of fact or law which have been fully and finally litigated and decided, and as to issues which with reasonable diligence should have been known but were not raised, and this occurs where there has been an omnibus habeas corpus hearing at which the applicant for habeas corpus was represented by counsel or appeared pro se having knowingly and intelligently waived his right to counsel.
4. 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[.]

         Here, petitioner does not dispute that he received appointment of habeas counsel and two evidentiary hearings in the prior proceeding. Accordingly, we find that the doctrine of res judicata generally bars petitioner from re-raising the grounds for relief from his first proceeding. Respondent states that petitioner's claims that the jury venire was not drawn from a fair cross-section of the community and that petitioner was made to wear prison attire during the penalty phase of his trial were "not actually" addressed in the prior proceeding. Thus, we find that confusion exists as to whether petitioner intended those pro se grounds to be considered by the habeas court. Therefore, based on our review of the record, we conclude that, in addition to ineffective assistance of habeas counsel, petitioner may raise (1) whether the jury venire was not drawn from a fair cross-section of the community; and (2) whether petitioner was made to wear prison attire during the penalty phase of his trial. However, unlike respondent, we assume arguendo that ...


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