Fayette County 17-C-330
Tex H.,  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,
counsel Caleb A. Ellis, 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.
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. 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.
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.
received a hearing in his second habeas proceeding, during
which he submitted a Losh checklist on May 28,
2008. 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.
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.
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.
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,  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
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).
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;