Thomas A. Grantham, Jr., Petitioner Below, Petitioner
J.T. Binion, Superintendent, Huttonsville Correctional Center, Respondent Below, Respondent
Berkeley County 18-C-96
Thomas A. Grantham, Jr., pro se, appeals the June 26, 2018,
order of the Circuit Court of Berkeley County denying his
second petition for a writ of habeas corpus. Respondent J.T.
Binion, Superintendent, Huttonsville Correctional Center,
counsel Shannon Frederick Kiser, filed a summary response in
support of the circuit court's order. Petitioner filed a
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 relevant standards of review, the parties' briefs in
both appeals, and the record on appeal, the Court finds that
a memorandum decision affirming the circuit court's order
under Rule 21 of the Rules of Appellate Procedure is
April 23, 2011, petitioner and James Cross argued with
Jacques Taylor and Andre Jackson in a bar. Thereafter,
petitioner and Mr. Cross followed Mr. Taylor and Mr. Jackson
to a gas station. There, petitioner stabbed Mr. Taylor while
Mr. Cross stabbed Mr. Jackson as the two victims sat in their
car. Mr. Taylor survived the attack; Mr. Jackson died as a
result of his injuries. In October of 2011, petitioner and
Mr. Cross were jointly indicted and charged with murder,
attempted murder in the second degree, malicious assault, and
conspiracy to commit murder.
and Mr. Cross were jointly tried in the Circuit Court of
Berkeley County. On June 18, 2012, petitioner was convicted
of second-degree murder, attempted murder, and malicious
assault but acquitted of the conspiracy charge. The circuit
court sentenced petitioner to the statutory terms of
incarceration for each of his convictions, to run
consecutively, for an aggregate term of forty-three to
fifty-three years of incarceration.
appealed his convictions and sentences in State v.
Grantham ("Grantham I"), No. 12-1293,
2013 WL 6152080 (W.Va. Nov. 22, 2013) (memorandum decision),
raising the following assignments of error: (1) the circuit
court erred in denying petitioner's motion to sever his
and Mr. Cross's trials; (2) the circuit court erred in
prohibiting petitioner's counsel from commenting upon Mr.
Cross's silence during closing argument; (3) the circuit
court erred in not excluding witnesses' in-court
identifications of petitioner as one of the perpetrators; (4)
the circuit court erred in not excluding evidence of flight;
(5) the circuit court erred in not excluding gruesome autopsy
photos; (6) the circuit court erred in not excluding evidence
that petitioner possessed knives and box cutters; (7) the
evidence at trial was insufficient to prove beyond a
reasonable doubt that petitioner committed second-degree
murder, attempted murder, and malicious assault; (8) the
circuit court erred in giving an erroneous "concerted
action" instruction; and (9) the circuit court erred in
imposing consecutive sentences. This Court rejected
petitioner's arguments and affirmed his convictions and
sentences. Id. at *2-8.
2014, petitioner filed a petition for a writ of habeas corpus
in the circuit court. Petitioner was appointed habeas counsel
who filed an amended petition on November 5, 2014. In
addition, petitioner filed a Losh checklist waiving
all grounds for relief not raised in the habeas
proceeding. In the amended petition, petitioner
alleged that (1) petitioner was denied due process of law due
to the circuit court's denial of his motion to sever his
and Mr. Cross's trials; (2) petitioner was denied due
process of law because of an improper "concerted
action" instruction; (3) trial counsel provided
ineffective assistance; and (4) petitioner was denied an
impartial jury given one juror's undisclosed family
connection to him. By order entered June 25, 2015, the
circuit court found that the issues regarding the denial of
petitioner's motion to sever and the "concerted
action" instruction were previously and finally
adjudicated in Grantham I. The circuit court further
rejected petitioner's ineffective assistance claim,
finding that the supporting allegations set forth in the
amended petition were insufficient to entitle petitioner to a
hearing on that issue. However, the circuit court required
respondent to file a response regarding whether petitioner
was denied an impartial jury given one juror's
undisclosed family connection to him.
at a January 19, 2016, evidentiary hearing, the circuit court
heard evidence regarding the alleged family connection
between petitioner and the juror. By order entered April 5,
2016, the habeas court found that petitioner failed to prove
that the juror knew of the distant family connection between
petitioner and the juror; that petitioner failed to prove that
the juror was prejudiced against petitioner; and that
petitioner failed to prove that the jury was tainted by bias
or prejudice. Accordingly, the circuit court denied
petitioner's habeas petition.
appealed the circuit court's June 25, 2015, and April 5,
2016, orders in Grantham v. Ballard
("Grantham II"), No. 16-0452, 2017 WL
944057 (W.Va. Mar. 10, 2017) (memorandum decision).
Petitioner argued that the circuit court erred in rejecting
his claim that trial counsel provided ineffective assistance
without a hearing on that issue. Id. at *4-5. This
Court found that the circuit court "did not err in . . .
not . . . hold[ing] an evidentiary hearing on [the
ineffective assistance] claim." Id. at *5.
Petitioner further argued that his family connection to the
juror was so substantial that the circuit court should have
presumed that the juror was prejudiced against petitioner.
Id. This Court rejected petitioner's argument,
finding that that petitioner failed to prove he was
prejudiced by the juror's presence on the jury.
Id. Accordingly, this Court affirmed the June 25,
2015, and April 13, 2016, orders denying habeas relief.
April 9, 2018, petitioner filed a second habeas petition
alleging that his claims from the first such proceeding were
not fully and finally adjudicated given that an evidentiary
hearing was held regarding only the family connection between
petitioner and the juror. By order entered June 26, 2018, the
circuit court found that all claims raised in the second
petition, including the cumulative effect of the various
alleged errors, were fully and finally adjudicated and/or
waived in either Grantham I or Grantham II.
Accordingly, the circuit court determined that the doctrine
of res judicata barred the second petition as a successive
petition and denied habeas relief. Petitioner now appeals the
circuit court's June 26, 2018, order denying his second
Syllabus Point 1 of Anstey v. Ballard, 237 W.Va.
411, 787 S.E.2d 864 (2016), we held:
"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).
Syllabus Point 2 of Losh, 166 W.Va. 762');">166 W.Va. 762, 277 S.E.2d
606 (1981), we held, in pertinent part, 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[.]" Id. at 762-63, 277
S.E.2d at 608.
appeal, petitioner reiterates the argument he made before the
circuit court: that his claims from the first such proceeding
were not fully and finally adjudicated given that an
evidentiary hearing was held regarding only one of those
issues. Respondent counters that the circuit court properly
found that all claims raised in the second habeas petition
were fully and finally adjudicated and/or waived either in
the first such proceeding (Grantham II) or in his
criminal appeal (Grantham I).See
Losh, 166 W.Va. at 765, 277 S.E.2d at 609 ...