John Howard Williams, pro se, appeals the August 3, 2018,
order of the Circuit Court of Wayne County dismissing 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.
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.
2005, petitioner pled no contest to one count of nighttime
burglary and pled guilty to a recidivist information filed by
the State pursuant to the West Virginia Habitual Criminal
Statute ("recidivist statute"), West Virginia Code
§§ 61-11-18 through -19. Petitioner's nighttime
burglary conviction resulted from a plea agreement. Pursuant
to the plea agreement, the State dismissed the four other
counts of an indictment alleging that petitioner broke into
multiple homes for the purpose of stealing firearms and other
items. Petitioner's prior felony convictions were for
first-degree sexual assault in 1985 and daytime burglary in
entered his pleas on October 3, 2005. Thereafter, petitioner
informed the circuit court that he wished to be sentenced the
same day. The circuit court sentenced petitioner to one to
fifteen years of incarceration for the burglary conviction
and a life term of incarceration with the possibility of
parole for the recidivist conviction. At the sentencing
hearing, the circuit court stated: "Actually you
don't serve the sentence on the burglary, just the life
[term]." After the sentencing hearing, two commitment
orders were erroneously entered, one for the burglary
sentence and one for the life recidivist sentence.
December 28, 2006, petitioner filed a petition for a writ of
habeas corpus in the circuit court. Subsequently, the circuit
court appointed habeas counsel for petitioner and held an
omnibus habeas corpus hearing on November 10, 2010. At the
omnibus hearing, petitioner argued two grounds for relief:
(1) the circuit court lacked jurisdiction to sentence
petitioner to a life term of incarceration pursuant to the
recidivist statute; and (2) the circuit court failed to duly
caution petitioner regarding the life recidivist sentence
prior to its imposition. Thereafter, the circuit court
reviewed the Losh checklist with petitioner and
habeas counsel, and petitioner waived all other grounds for
order entered on February 9, 2011, the circuit court rejected
petitioner's grounds for relief and upheld the validity
of his life recidivist sentence. The circuit court further
found that the erroneous entry of the commitment order for
the burglary sentence was harmless and vacated that order, so
the life recidivist sentence could remain in
effect. Petitioner appealed the February 9, 2011,
order in Williams v. McBride, No. 11-0429, 2012 WL
3079257 ( W.Va. Mar. 30, 2012) (memorandum decision), in
which this Court affirmed the denial of the habeas
filed a second habeas petition on May 2, 2018. Petitioner
again challenged the validity of his life recidivist
sentence, raising the following grounds: (1) a "newly
discovered" decision in which this Court found a life
recidivist sentence unconstitutionally disproportionate; and
(2) ineffective assistance of habeas counsel in failing to
raise earlier decisions in which a life recidivist sentence
was reversed. By order entered on August 3, 2018, the circuit
court found that this Court's decision in State v.
Kilmer, 240 W.Va. 185, 808 S.E.2d 867 (2017), was
distinguishable from petitioner's case and that the other
decisions petitioner argued should have been raised in the
prior habeas proceeding were also inapposite. Accordingly,
the circuit court dismissed the second habeas petition in an
order entered on August 3, 2018. Petitioner now appeals that
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 4 of Losh v. McKenzie, 166 W.Va. 762');">166 W.Va. 762,
277 S.E.2d 606 (1981), we held:
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.
appeal, petitioner argues that he is raising newly discovered
evidence rather than a favorable change in the law.
Respondent counters that petitioner is arguing the latter
exception to the application of the doctrine of res judicata.
Given petitioner's reliance on Kilmer, we agree
with respondent that petitioner is arguing a favorable change
in the law. We further concur with the circuit court's
determination that Kilmer does not constitute a
change of law favorable to petitioner (assuming, arguendo,
that we would retroactively apply Kilmer). In
Syllabus Point 4 of Kilmer, we held that "[t]he
felony offense of driving while license revoked for [driving
under the influence] . . . is not an offense that involves
actual or threatened violence to the person for purposes of
invoking the recidivist statute, West Virginia Code §
61-11-18(c)." 240 W.Va. at 186, 808 S.E.2d at 868. Here,
we find that petitioner's case is distinguishable from
Kilmer given that the recidivist statute was invoked
following petitioner's nighttime burglary conviction.
argues that habeas counsel provided ineffective assistance.
In Syllabus Point 5 of State v. Miller, 194 ...