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Lind v. Ames

Supreme Court of Appeals of West Virginia

November 15, 2019

Jonathan Lind, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Kanawha County 16-P-37 and 18-P-210

          MEMORANDUM DECISION

         Petitioner Jonathan Lind, pro se, appeals two orders of the Circuit Court of Kanawha County. In the first order, entered July 23, 2018, the circuit court denied petitioner's motion for relief from judgment. In the second order, also entered July 23, 2018, the circuit court dismissed petitioner's fourth petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Scott E. Johnson, filed a summary response in support of the circuit court's orders. 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 orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On March 31, 2006, petitioner killed Edward Ayers in the victim's home. Petitioner then stole the victim's credit card and vehicle and went on a shopping spree. On July 26, 2006, the grand jury returned a five-count indictment against petitioner: one count of murder, in violation of West Virginia Code § 61-2-1; one count of first-degree robbery, in violation of West Virginia Code § 61-2-12(a)(1); and three counts of forgery of a credit card, in violation of West Virginia Code § 61-3-24a(c).

         On October 2, 2006, petitioner's trial counsel filed a motion to withdraw at petitioner's request. Trial counsel argued that he be allowed to withdraw because "[c]ounsel and [petitioner] have substantially differing views of the merits of the case and how to proceed." At an October 23, 2006, hearing, petitioner informed the circuit court that "there's some points in my case that we don't see eye to eye on," but did not specify the points of their disagreement. Accordingly, the circuit court found that it "[did] not believe that [petitioner has] made a case for . . . appointing new counsel." By order entered November 20, 2006, the circuit denied the motion to withdraw.

         In March of 2007, petitioner's case proceeded to trial. The State presented the testimony of Steven Jones. Mr. Jones testified that he accompanied petitioner on the shopping spree following the victim's death, during which petitioner used the victim's credit card at various retailers and traded the victim's vehicle for crack cocaine. Mr. Jones was cross-examined by petitioner's trial attorney. In petitioner's case-in-chief, petitioner testified that he went to the victim's house to "make some money" by providing sexual favors to the victim. However, an altercation ensued, and petitioner hit the victim with a claw hammer and took the victim's wallet, keys, and vehicle. Petitioner testified that he traded the vehicle for crack cocaine the following morning and admitted that he used the victim's credit card on two occasions. However, petitioner testified that Mr. Jones also used the credit card after petitioner gave it to him when the two were at the drive-thru at a fast food restaurant.

         Following jury instructions and closing arguments, the jury convicted petitioner of second-degree murder, first-degree robbery, and three counts of forgery of a credit card. By order entered June 1, 2007, the circuit court sentenced petitioner to an aggregate term of incarceration of 33 to 150 years. Petitioner sought review of his convictions and sentence in this Court, which refused his appeal on March 20, 2008.

         On October 2, 2008, petitioner filed a petition for a writ of habeas corpus in the circuit court, requesting a new trial. Petitioner received appointment of counsel and an evidentiary hearing was held on February 18, 2009. By order entered April 17, 2009, the circuit court denied petitioner's request for habeas relief. On April 28, 2009, petitioner filed a notice of appeal. Petitioner's first habeas counsel was relieved from further representation and a new attorney was appointed to represent petitioner in his habeas appeal. However, no appeal from the circuit court's April 17, 2009, order denying petitioner's first habeas petition was ever filed.

         On November 17, 2009, petitioner filed a second habeas petition. By order entered February 5, 2010, the circuit court appointed yet another attorney to represent petitioner. On October 22, 2010, petitioner's attorney filed an amended petition. On December 12 and 14, 2012, the circuit court held an evidentiary hearing and ultimately determined that, because the appellate attorney in the first habeas proceeding failed to file an appeal, petitioner would be allowed to present evidence on all grounds for relief asserted in his amended habeas petition, including those that the circuit court denied in the first habeas proceeding. Petitioner, his criminal trial attorney, and his attorneys from his first habeas proceeding all provided testimony.

         By order entered January 9, 2014, the circuit court denied petitioner's second habeas petition. The court referenced that petitioner's attorney from the first habeas proceeding testified that he discussed the Losh checklist with petitioner and that petitioner "fully understood that any issue he did not raise at that time was waived forever."[2] The circuit court further referenced that, during petitioner's testimony, "he conceded that [his attorney] had reviewed the Losh [l]ist with him and that he understood it at that time." The circuit court found that, in the second habeas proceeding, petitioner was again advised of "his obligation to raise all grounds for post-conviction relief in one proceeding." The circuit court determined that petitioner's habeas attorney was not ineffective by failing to raise the issue of trial counsel's performance because the trial record reflected "no grounds on which to base any allegation of ineffective assistance of trial counsel."

         Petitioner appealed the circuit court's January 9, 2014, order denying his second habeas petition to this Court, which affirmed the circuit court's ruling in Lind v. Ballard ("Lind I"), No. 14-0116, 2015 WL 5125884, at *7 ( W.Va. August 31, 2015) (memorandum decision). In Lind I, we declined to consider the issue of whether petitioner's habeas attorney in his second proceeding was ineffective, finding that the claim "would more appropriately be raised in a new petition for writ of habeas corpus." Id. at *4. On January 29, 2016, petitioner filed a third habeas petition, raising ineffective assistance of counsel. Petitioner filed supplements to his petition on April 7, 2016, and September 2, 2016. By order entered on October 26, 2016, the circuit court denied petitioner's third habeas petition without a hearing and without appointment of counsel.

         Petitioner appealed the circuit court's October 26, 2016, order in Lind v. Ballard ("Lind II"), No. 16-1033, 2017 WL 4570572 ( W.Va. October 13, 2017) (memorandum decision). Petitioner argued that neither his first nor his second habeas proceeding constituted an omnibus habeas corpus proceeding. Id. at *4. However, in Lind II, we found that petitioner was previously afforded an omnibus hearing, which triggered the application of the doctrine of res judicata to generally bar the filing of successive habeas petitions. Id. We explained:

First, we found in Lind I that by allowing petitioner to re-raise the claims in the second habeas proceeding, the circuit court cured the failure of the appellate attorney in the first habeas proceeding to file an appeal in that case. Second, the circuit court included a notation in its January 9, 2014, order denying habeas relief that petitioner was advised of "his obligation to raise all grounds for post-conviction relief in one proceeding." Moreover, in Lind I, we concurred with the circuit court's finding that the trial attorney in the first habeas proceeding had, in fact, "explained the Losh list and waiver requirements to petitioner and [that] petitioner understood his rights." Third, we find that in both petitioner's criminal case and his three habeas proceedings, the circuit court has made ample findings showing that petitioner's grounds for habeas relief are without merit[.]

Lind II at *4 (Citations to Lind I omitted.).

         Given that it constitutes an exception to the doctrine of res judicata, we addressed petitioner's claim that his habeas attorney in his second proceeding was ineffective. We ultimately rejected the claim, finding that "all of the grounds petitioner alleges that his second habeas trial attorney failed to raise are without merit and/or were encompassed within the issues fully and finally adjudicated in his appeal in Lind I." Id. at 6.[ ...


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