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. 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.
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.
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.
filed a pro se petition for a writ of habeas corpus on May 8,
2015. 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.
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."
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
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
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
Syl. Pts. 2 and 4, Losh v. McKenzie, 166 W.Va. 762,
277 S.E.2d 606 (1981).
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. Upon ...