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Jessie D. v. Ames

Supreme Court of West Virginia

May 3, 2019

Jessie D., Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Mingo County 16-C-174

          MEMORANDUM DECISION

         Petitioner Jessie D., [1] pro se, appeals the May 22, 2017, order of the Circuit Court of Mingo County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [2] by counsel Julianne Wisman, 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 February 28, 1995, a Mingo County jury found petitioner guilty of four counts of first-degree sexual assault and four counts of sexual abuse by a parent, guardian, or custodian. The circuit court subsequently sentenced Petitioner to an aggregate term of thirty-five to eighty-five years of incarceration.

         Prior to the instant habeas corpus proceeding, petitioner filed six previous habeas petitions. Petitioner had an omnibus hearing on February 8, 1999, in connection with his first habeas proceeding. Petitioner's habeas attorney submitted a Losh checklist indicating each and every ground that Petitioner felt might entitle him to relief.[3] The circuit court inquired on the record whether habeas counsel had discussed with petitioner all grounds that might apply to his case and had advised petitioner that any grounds not raised would be deemed voluntarily and intentionally waived. Petitioner's habeas attorney informed the circuit court that he had discussed with his client every potential ground for relief and had explained the conclusive effect of a final decision on successive habeas petitions. Petitioner signed the Losh checklist submitted by his attorney and initialed all the grounds he wished to assert. The circuit court accepted the checklist, admitted it into the record, and accordingly found that Petitioner had knowingly and intelligently waived all grounds for relief not asserted.

         On March 19, 1999, the circuit court entered a final order denying all grounds for relief with the exception of the ground alleging that petitioner had been sentenced under the wrong version of West Virginia Code § 61-8B-3, regarding two of his first-degree sexual assault convictions. The circuit court granted relief on that ground and resentenced petitioner under the version of West Virginia Code § 61-8B-3 in effect at the time of the commission of those offenses.

         Subsequently, in petitioner's sixth habeas proceeding, the circuit court held an evidentiary hearing on April 4 and 25, 2011, ("2011 hearing") given petitioner's claim that his prior habeas attorney provided ineffective assistance. However, petitioner's attorney at the 2011 hearing ("2011 counsel") explained that Petitioner's ineffective assistance claim was ultimately based on trial counsel's performance in the underlying criminal case because his "[prior] habeas counsel failed to recognize" certain errors of Petitioner's trial attorney. Accordingly, the circuit court determined that Petitioner was precluded from re-raising that claim, finding:

So, based upon all those matters, every opportunity has been given in the past to fully litigate all those issues and they, in fact, have been litigated. The omnibus proceeding has already been held. Therefore, we are holding this proceeding as a subsequent habeas proceeding and the Court finds that all the issues that are set forth in the transcript with regard to actions by trial counsel, actions by the trial court, actions by the prosecuting attorney, by the jury, and by the spectators all were fully litigated or and raised and decided and appealed or they could have been with reasonable diligence because they were set forth in the transcript and all those issues were raised, litigated[, ] and decided.

         The 2011 hearing continued on the issue of newly discovered evidence, which may be raised in a successive habeas petition.[4] Petitioner intended to call Kyle S. to testify regarding comments that petitioner's son had allegedly made to Kyle S. that tended to support petitioner's claim of innocence. The comments, if true, would represent a change from petitioner's son's testimony at trial. Respondent objected on the ground of hearsay. Petitioner's 2011 counsel argued that Kyle S.'s testimony should be allowed because the comments that petitioner's son had made to him constituted statements against petitioner's son's interest given that it contradicted Petitioner's son's testimony at trial.[5] The circuit court sustained respondent's hearsay objection.

         Petitioner presented the testimony of his stepdaughter, who was the victim in the underlying criminal case, [6] and his former wife. Both witnesses stood by their trial testimony. When questioned by petitioner's 2011 counsel, his stepdaughter testified as follows:

Q. So[, ] if someone else said that you and your mother would laugh and joke about what happened to [Petitioner]-
A. -That's nothing to laugh about-the molestation of a child.
Q. So, that wouldn't be true?
A. No.
Q. And[, ] you've never joked about putting an innocent ...

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