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Tex H. v. Ames

Supreme Court of West Virginia

June 17, 2019

Tex H., Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Fayette County 17-C-330

          MEMORANDUM DECISION

         Petitioner Tex H., [1] pro se, appeals the December 11, 2017, order of the Circuit Court of Fayette County dismissing his petition for a writ of habeas corpus and denying his motion for appointment of counsel, motion for discovery, and motion to disqualify the presiding judge. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [2] by counsel Caleb A. Ellis, 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.

         In November of 2004, petitioner was convicted in the Circuit Court of Fayette County of eight counts of incest, eight counts of sexual abuse in the second degree, and eight counts of sexual abuse by a parent or custodian. The victim was petitioner's step-granddaughter, S.L.M., who testified against him at trial.[3] The circuit court sentenced petitioner to consecutive terms of incarceration for an aggregate sentence of 199 to 480 years. On November 17, 2005, this Court refused petitioner's criminal appeal.

         Petitioner has filed five petitions for a writ of habeas corpus. Petitioner's first petition was dismissed without a hearing by order entered November 16, 2006. On December 14, 2006, petitioner filed a motion for appointment of counsel for purposes of appealing the circuit court's November 16, 2006, order. However, petitioner's motion was not filed in his first habeas proceeding, but in the underlying criminal case. The circuit court entered a December 26, 2006, order appointing petitioner an attorney in the criminal case. The circuit court appointed an attorney to represent petitioner not in an appeal of the November 16, 2006, dismissal, but in a "habeas corpus" proceeding "before this [c]ourt." Subsequently, petitioner pro se filed his second habeas petition on November 19, 2007, and the same attorney was reappointed as habeas counsel for petitioner in that proceeding.

         Petitioner received a hearing in his second habeas proceeding, during which he submitted a Losh checklist on May 28, 2008.[4] At a February 11, 2009, evidentiary hearing, petitioner's attorney listed the issues that petitioner wanted the circuit court to consider. Petitioner's habeas attorney introduced the deposition testimony of his trial attorney into evidence and petitioner testified as to his allegations that trial counsel provided ineffective assistance. S.L.M. was also called as a witness by petitioner regarding a prior alleged recantation of her trial testimony. By order entered October 23, 2009, the circuit court denied petitioner's second habeas petition. The circuit court found that the grounds for habeas relief raised in petitioner's May 28, 2008, Losh checklist "fail[ed] to rise to the requisite constitutional dimension to be sufficient habeas corpus relief." The circuit court deemed all issues not raised in petitioner's amended habeas petition or the Losh checklist "intentionally, knowingly[, ] and voluntarily waived." Petitioner appealed the October 23, 2009, denial of habeas relief; however, this Court refused his appeal by order entered September 9, 2010.

         Petitioner filed a third habeas petition on October 8, 2010, which the circuit court dismissed on October 10, 2010. Petitioner appealed the dismissal of that petition in [Tex H.] v. Ballard ("Tex H. I"), No. 101437, 2012 WL 2988769 (W.Va. Mar. 12, 2012) (memorandum decision), in which this Court affirmed the circuit court's October 10, 2010, order.

         Petitioner filed a fourth habeas petition on November 19, 2015, which the circuit court dismissed on December 23, 2015. Petitioner appealed the dismissal of that petition in Tex H. v. Ballard ("Tex H. II"), No. 16-0033, 2017 WL 1102791 (W.Va. Mar. 24, 2017) (memorandum decision). This Court affirmed the dismissal of petitioner's fourth habeas petition, finding that "his second habeas proceeding qualifie[d] as an omnibus habeas corpus proceeding under . . . Losh [v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981)]." Id. at *5.

         Petitioner filed the instant habeas petition on November 14, 2017. To overcome the doctrine of res judicata, as set forth in syllabus point two of Losh, [5] petitioner argued that the attorney who represented him in the second habeas proceeding was actually appointed to appeal the dismissal of his first petition and the attorney's failure to appeal the prior dismissal tainted the second proceeding with unfairness. Petitioner further argued that the judge who presided in all of his habeas proceedings, including the instant one, was prejudiced against him. Accordingly, petitioner filed a motion to disqualify the judge in addition to motions for appointment of counsel and discovery. By order entered December 11, 2017, the circuit court rejected petitioner's claims, dismissed the instant petition, and denied the various motions, including the motion for the judge's disqualification.

         It is from the circuit court's December 11, 2017, order dismissing his habeas petition that petitioner now appeals. In syllabus points one and three of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016), we held:

1. "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).
3. "'A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no relief.' Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973)." Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).

         In syllabus point four of Losh, 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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