Kanawha County 17-P-151
Gerald M.,  pro se, appeals the October 17, 2017,
order of the Circuit Court of Kanawha County denying his
petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,
counsel Scott E. Johnson, filed a response in support of the
circuit court's order. Petitioner filed a reply.
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.
1995, the circuit court sentenced petitioner to two
consecutive terms of fifteen to thirty-five years of
incarceration following his conviction on two counts of
first-degree sexual assault against a minor. Petitioner
subsequently appealed these convictions, which this Court
refused by order entered September 16, 1996.
has filed five petitions for writs of habeas corpus.
Petitioner filed a first habeas petition on October 6, 1997,
alleging (1) failure to strike jurors; (2) improper admission
of bad act evidence; (3) failure to have the victim
psychologically evaluated; (4) violation of the Confrontation
Clause; (5) failure to disclose exculpatory evidence; (6)
improper cross-examination of petitioner's character
witnesses; (7) petitioner's absence from bench
conferences; (8) failure to grant petitioner's request
for a reduction of sentence; and (9) improper ex
parte communications with the jury. Petitioner received
an evidentiary hearing and appointment of counsel in his
first habeas proceeding. Following the evidentiary hearing,
the circuit court denied habeas relief by order entered
November 23, 2003.
petitioner filed a fourth habeas petition, alleging: (1)
ineffective assistance of trial counsel; (2) improper
admission of bad act evidence; (3) violation of the
Confrontation Clause; (4) improper expert testimony; (5)
unconstitutionally impaneled jury; and (6) improper ex
parte communications with the jury. By order entered
November 15, 2011, the circuit court denied habeas relief,
finding that the petition was "based on grounds
previously reviewed by the [circuit court] and does not set
forth any new grounds for relief." Petitioner appealed
the denial of his fourth habeas petition in Gerald K.M.
v. Ballard, No. 12-0021, 2013 WL 149598 (W.Va. Jan. 14,
2013) (memorandum decision). This Court affirmed the denial
of habeas relief, finding that "petitioner was not
restricted on presenting any evidence or arguments at his . .
. omnibus evidentiary hearing [in his first habeas
proceeding]." Id. at *2. On March 9, 2017,
petitioner filed a fifth habeas petition, alleging: (1)
ineffective assistance of habeas counsel; (2) excessive
sentencing; (3) actual innocence; and (4) cumulative error.
By order entered October 17, 2017, the circuit court
addressed each of petitioner's grounds for relief and
denied his habeas petition. It is from the circuit
court's October 17, 2017, order that petitioner now
In syllabus point one of Anstey v. Ballard, 237
W.Va. 411, 787 S.E.2d 864 (2016), we held:
"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).
in syllabus point four 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;
or, a change in the law, favorable to the applicant, which
may be applied retroactively.
appeal, petitioner argues that the evidentiary hearing in his
first habeas proceeding did not constitute an omnibus hearing
because he did not have a full and fair opportunity to raise
all arguably meritorious issues. Respondent counters that the
instant petition is a meritless successive petition barred by
the doctrine of res judicata. We agree with respondent and
note our finding in Gerald K.M. that
"petitioner was not restricted on presenting any
evidence or arguments at his . . . omnibus evidentiary
hearing [in his first habeas proceeding]." 2013 WL
149598, at *2.
our review of the record, we find that, in its October 17,
2017, order, the circuit court explained why none of
petitioner's grounds for relief entitled him to habeas
relief. In Call v. McKenzie, 159 W.Va.
191, 194, 220 S.E.2d 665, 669 (1975), we found that
post-conviction litigation must end at some point because,
"[w]hile a defendant is entitled to due process of law,
he is not entitled to appeal upon appeal, attack upon attack,
and [h]abeas corpus upon [h]abeas
corpus." See White v. Haines, 215 W.Va.
698, 705 n.9, 601 S.E.2d 18, 25 n.9 (2004) (affirming denial
of the petitioner's second habeas petition, finding that
it "is difficult to muster any sound reasoning for
giving [him] another bite at the apple"). Here, having
reviewed the circuit court's October 17, 2017,
"Final Order," we hereby adopt and incorporate the
circuit court's well-reasoned findings and conclusions,
which we find address petitioner's assignments of error.
The Clerk is directed to attach a copy of the October 17,
2017, order to this memorandum decision. We, therefore,
conclude that the circuit court properly denied
petitioner's habeas petition.
foregoing reasons, we affirm the circuit court's October
17, 2017, order denying petitioner's ...