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Charles E. v. Ames

Supreme Court of West Virginia

June 17, 2019

Charles E., Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Gilmer County 18-C-10

          MEMORANDUM DECISION

         Petitioner Charles E., [1] pro se, appeals the June 15, 2018, order of the Circuit Court of Gilmer County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [2] by counsel Scott E. Johnson, filed a summary 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.[3] 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.

         We set out the underlying facts and procedural history of petitioner case in Charles E. v. Ballard ("Charles E. II"), No. 16-0045, 2017 WL 680454, at *1-2 (W.Va. Feb. 21, 2017) (memorandum decision):

In 2012, a Gilmer County grand jury indicted petitioner on two counts of first-degree sexual abuse in violation of West Virginia Code § 61-8B-7(a)(3), and two counts of first-degree sexual assault in violation of West Virginia Code § 61-8B-3(a)(2). The victim was his great-nephew, J.S., who was four years old at the time of the alleged crimes and six years old at the time of trial.
In November of 2012, petitioner's criminal trial began. [The State]'s primary evidence against him was the victim's testimony. The victim testified at trial that petitioner touched the victim's penis on one occasion and digitally penetrated his anus on more than two occasions. A social worker, who was qualified by the circuit court as an expert in the area of whether children exhibit characteristics of being abused, testified about an interview she conducted of the victim and testified that the victim described and demonstrated the sexual acts on a doll, the victim identified petitioner as the perpetrator who committed those acts; and that the victim's statements to her were consistent. Petitioner did not testify at trial or present any evidence in his defense. Following the jury trial, petitioner was convicted of one count of first-degree sexual abuse and one count of first-degree sexual assault; the remaining counts were dismissed by the circuit court. On April 5, 2013, the circuit court denied petitioner's post-trial motion for a judgment of acquittal or new trial and sentenced petitioner to an indeterminate term of incarceration of not less than five nor more than twenty-five years for first-degree sexual abuse and not less than twenty-five nor more than 100 years for first-degree sexual assault. The circuit court ordered the sentences to run consecutively to one another and further ordered that petitioner register as a sex offender for a term of fifty years following his release from incarceration.
In 2014, petitioner filed a direct appeal with this Court alleging that the circuit court erred (1) when it denied his motion[s] for judgment of acquittal at the close of [the State]'s case-in-chief [and after the defense rested]; (2) when it did not grant his motion for a new trial on the grounds that [the State] produced a witness statement only after that witness testified at the trial and prior to cross-examination; (3) and that the sentence imposed upon petitioner violated the proportionality principle found in Article III, Section 5 of the West Virginia Constitution. By ordered entered on April 25, 2014, this Court affirmed petitioner's conviction. See State v. Charles E. [("Charles E. I")], No. 13-0571[, 2014 WL 1672953, at *2-5 (W.Va. Apr. 25, 2014)] (memorandum decision). . . .

(Footnotes omitted.)

          On June 14, 2014, petitioner filed a petition for a writ of habeas corpus alleging that (1) the circuit court erroneously denied his motion for judgment of acquittal at the close of the State's case-in-chief; (2) the court erroneously denied his motion for judgment of acquittal after the defense rested; (3) the court erroneously failed to grant his motion for a new trial on the grounds that the State produced a witness statement only after that witness testified at trial and prior to cross-examination; (4) the court erroneously failed to sustain any objection raised by the defense and to award a new trial after the State produced the witness statement after that witness testified at trial; (5) that the sentence imposed upon petitioner violated the proportionality principle found in Article III, Section 5 of the West Virginia Constitution; (6) that the cumulative effect of the alleged errors denied him a fair trial; and (7) that his trial attorney provided ineffective assistance of counsel, including before this Court in Charles E. I given that not all issues were asserted on appeal "[d]ue to the fact that there were more important issues to be raised." Petitioner was appointed counsel, who filed an amended habeas petition on June 17, 2015. The circuit court subsequently held an omnibus habeas corpus hearing on August 11, 2015. Petitioner testified:

[I]n preparing his petition for writ of habeas corpus relief that he and his counsel had went over the Losh v. McKenzie checklist.[4] Further, petitioner testified that he understood the nature of the omnibus proceedings and that any grounds not raised now would be deemed forever waived. Thereafter, the petitioner indicated that ineffective assistance of [trial] counsel was the only ground he was pursuing.

Charles E. II, 2017 WL 680454, at *3 (Footnote added.).

         Following the omnibus hearing, the circuit court denied the habeas petition by order entered December 14, 2015. Petitioner appealed that order in Charles E. II. In Charles E. II, this Court rejected petitioner's claim that his trial attorney provided ineffective assistance, finding that "petitioner's own testimony establishes that his counsel met with him approximately twelve to fourteen times between the preliminary hearing and the jury trial" and "that counsel communicated all plea agreements to petitioner, and advised him on all the plea offers presented." Id. at *2. This Court also adopted the "well-reasoned findings" set forth in the circuit court's December 14, 2015, order. Id.

         On May 31, 2018, petitioner filed the instant habeas petition alleging (1) that he did not knowingly and intelligently waive the grounds raised in his June 14, 2014, petition in the first habeas proceeding; (2) that the circuit court erred in the first habeas case by failing to rule on all grounds raised in that proceeding; and (3) that his habeas attorney provided ineffective assistance in the prior proceeding by (a) failing to call trial counsel as a witness and (b) failing to present witness testimony that trial counsel did not advocate for concurrent sentences at the sentencing hearing in the underlying criminal case. By order entered June 15, 2018, the circuit court rejected petitioner's claim and denied his petition, finding that he "merely re-allege[d] the grounds for relief that were previously and finally adjudicated under the guise of ineffective assistance of [habeas] counsel." The circuit court also adopted its December 14, 2015, decision denying petitioner's first petition as part of its June 15, 2018, order denying habeas relief.

         It is from the circuit court's June 15, 2018, order denying his habeas petition that petitioner now appeals. In syllabus points one and three of Anstey v. ...


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