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Johnson v. Mirandy

Supreme Court of Appeals of West Virginia

November 8, 2019

Ballard Johnson, Petitioner Below, Petitioner
v.
Patrick Mirandy, Superintendent, St. Marys Correctional Center, Respondent Below, Respondent

          Mingo County 15-C-99

          MEMORANDUM DECISION

         Petitioner Ballard Johnson, by counsel Cullen Younger, appeals the Circuit Court of Mingo County's May 10, 2018, order denying his petition for a writ of habeas corpus. Respondent Patrick Mirandy, Superintendent, by counsel Holly M. Flanigan, filed a response.[1] On appeal, petitioner argues that the circuit court, in its final order, erred in failing to make specific findings of fact and conclusions of law addressing each ground raised by him in his habeas petition.

         This 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 1991, following a jury trial, petitioner was convicted of one count of first-degree murder and one count of aggravated robbery. Petitioner was sentenced to life in prison, with mercy, for the first-degree murder conviction and a second life sentence for the aggravated robbery conviction. Petitioner appealed his conviction to this Court, and the appeal was refused.

         Petitioner filed a pro se petition for a writ of habeas corpus on May 8, 2015.[2] After being appointed counsel, petitioner filed an amended petition on July 8, 2017. In his amended petition, petitioner argued that the indictment was defective for failing to mention the venue, his trial counsel was ineffective for failing to raise this issue regarding the defective indictment, the jury instructions were improper, and he did not receive a full public hearing.

         The circuit court held an omnibus hearing wherein petitioner was permitted to argue his claims. Petitioner argued that his indictment was defective for failing to allege the venue in which the crime occurred. Petitioner also argued that his trial counsel was ineffective for failing to correct this defect and that a full public hearing was never allowed on that issue. Petitioner indicated that he made his trial counsel aware of the situation prior to trial, but that the issue was never raised. Petitioner did not make any argument with regard to his claim that the jury instructions were improper. The State argued that petitioner's claims were not novel and had already been adjudicated, including his challenge to the jurisdictional language of the indictment and his claim of ineffective assistance of counsel. Indeed, petitioner's counsel acknowledged that "this is one of several habeas [petitions] that have been filed on [petitioner's] behalf," and that petitioner understood that the issues had previously been argued. Further, the circuit court noted that "everything has been covered ad nauseam." Nevertheless, the circuit court held its ruling in abeyance in order to give petitioner "the benefit and take a look at it."

         Thereafter, the circuit court denied petitioner's amended petition for writ of habeas corpus. In its order, the circuit court set forth a summation of the facts of the underlying criminal conviction, as well as the arguments being raised in the current habeas petition. The circuit court also set forth the applicable law regarding habeas petitions. The circuit court found that petitioner had not raised any issues which are permitted to be raised in subsequent habeas petitions and that petitioner's requested grounds for relief in the instant petition had previously been finally adjudicated or waived. It is from this May 10, 2018, order that petitioner appeals.

         This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

"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).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). We have further held that

[a] judgment denying relief in post-conviction habeas corpus is res judicata on questions of fact or law which have been fully and finally litigated and decided, and as to issues which with reasonable diligence should have been known but were not raised, and this occurs where there has been an omnibus habeas corpus hearing at which the applicant for habeas corpus was represented by counsel or appeared pro se having knowingly and intelligently waived his right to counsel.
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.

Syl. Pts. 2 and 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

         On appeal, petitioner argues that the circuit court failed to provide sufficient findings in its final order summarily denying his habeas petition in violation of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings.[3] Upon ...


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