Tex H. v. Donnie Ames, Superintendent

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Tex H., FILED

Petitioner Below, Petitioner June 17, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

vs) No. 18-0016 (Fayette County 17-C-330) OF WEST VIRGINIA

Donnie Ames, Superintendent,

Mt. Olive Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Tex H.,1 pro se, appeals the December 11, 2017, order of the Circuit Court of

Fayette County dismissing his petition for a writ of habeas corpus and denying his motion for

appointment of counsel, motion for discovery, and motion to disqualify the presiding judge.

Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex,2 by counsel Caleb

A. Ellis, filed a response in support of the circuit court’s order. 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 order is appropriate under Rule 21 of the

Rules of Appellate Procedure.

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.

254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.

Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

2

Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional

Complex has changed and the superintendent is now Donnie Ames. The Court has made the

necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate

Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”

are now designated “superintendents.” See W.Va. Code § 15A-5-3.

1

In November of 2004, petitioner was convicted in the Circuit Court of Fayette County of

eight counts of incest, eight counts of sexual abuse in the second degree, and eight counts of sexual

abuse by a parent or custodian. The victim was petitioner’s step-granddaughter, S.L.M., who

testified against him at trial. 3 The circuit court sentenced petitioner to consecutive terms of

incarceration for an aggregate sentence of 199 to 480 years. On November 17, 2005, this Court

refused petitioner’s criminal appeal.

Petitioner has filed five petitions for a writ of habeas corpus. Petitioner’s first petition was

dismissed without a hearing by order entered November 16, 2006. On December 14, 2006,

petitioner filed a motion for appointment of counsel for purposes of appealing the circuit court’s

November 16, 2006, order. However, petitioner’s motion was not filed in his first habeas

proceeding, but in the underlying criminal case. The circuit court entered a December 26, 2006,

order appointing petitioner an attorney in the criminal case. The circuit court appointed an attorney

to represent petitioner not in an appeal of the November 16, 2006, dismissal, but in a “habeas

corpus” proceeding “before this [c]ourt.” Subsequently, petitioner pro se filed his second habeas

petition on November 19, 2007, and the same attorney was reappointed as habeas counsel for

petitioner in that proceeding.

Petitioner received a hearing in his second habeas proceeding, during which he submitted

a Losh checklist on May 28, 2008. 4 At a February 11, 2009, evidentiary hearing, petitioner’s

attorney listed the issues that petitioner wanted the circuit court to consider. Petitioner’s habeas

attorney introduced the deposition testimony of his trial attorney into evidence and petitioner

testified as to his allegations that trial counsel provided ineffective assistance. S.L.M. was also

called as a witness by petitioner regarding a prior alleged recantation of her trial testimony. By

order entered October 23, 2009, the circuit court denied petitioner’s second habeas petition. The

circuit court found that the grounds for habeas relief raised in petitioner’s May 28, 2008, Losh

checklist “fail[ed] to rise to the requisite constitutional dimension to be sufficient habeas corpus

relief.” The circuit court deemed all issues not raised in petitioner’s amended habeas petition or

the Losh checklist “intentionally, knowingly[,] and voluntarily waived.” Petitioner appealed the

October 23, 2009, denial of habeas relief; however, this Court refused his appeal by order entered

September 9, 2010.

Petitioner filed a third habeas petition on October 8, 2010, which the circuit court dismissed

on October 10, 2010. Petitioner appealed the dismissal of that petition in [Tex H.] v. Ballard (“Tex

H. I”), No. 101437, 2012 WL 2988769 (W.Va. Mar. 12, 2012) (memorandum decision), in which

this Court affirmed the circuit court’s October 10, 2010, order.

3

At a February 11, 2009, habeas corpus hearing, S.L.M. testified that she was twelve or

thirteen years old when the alleged conduct occurred.

4

In Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we

compiled a non-exclusive list of potential grounds that a circuit court should address with a habeas

petitioner as to whether each ground was being either waived or raised in the proceeding.

2

Petitioner filed a fourth habeas petition on November 19, 2015, which the circuit court

dismissed on December 23, 2015. Petitioner appealed the dismissal of that petition in Tex H. v.

Ballard (“Tex H. II”), No. 16-0033, 2017 WL 1102791 (W.Va. Mar. 24, 2017) (memorandum

decision). This Court affirmed the dismissal of petitioner’s fourth habeas petition, finding that “his

second habeas proceeding qualifie[d] as an omnibus habeas corpus proceeding under . . . Losh [v.

McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981)].” Id. at *5.

Petitioner filed the instant habeas petition on November 14, 2017. To overcome the

doctrine of res judicata, as set forth in syllabus point two of Losh,5 petitioner argued that the

attorney who represented him in the second habeas proceeding was actually appointed to appeal

the dismissal of his first petition and the attorney’s failure to appeal the prior dismissal tainted the

second proceeding with unfairness. Petitioner further argued that the judge who presided in all of

his habeas proceedings, including the instant one, was prejudiced against him. Accordingly,

petitioner filed a motion to disqualify the judge in addition to motions for appointment of counsel

and discovery. By order entered December 11, 2017, the circuit court rejected petitioner’s claims,

dismissed the instant petition, and denied the various motions, including the motion for the judge’s

disqualification.

It is from the circuit court’s December 11, 2017, order dismissing his habeas petition that

petitioner now appeals. In syllabus points one and three of Anstey v. Ballard, 237 W.Va. 411, 787

S.E.2d 864 (2016), we held:

1. “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).

****

5

In syllabus point two of Losh, we held:

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.

166 W.Va. at 762, 277 S.E.2d at 608.

3

3. “‘A court having jurisdiction over habeas corpus proceedings may deny a

petition for a writ of habeas corpus without a hearing and without appointing

counsel for the petitioner if the petition, exhibits, affidavits or other documentary

evidence filed therewith show to such court’s satisfaction that the petitioner is

entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194

S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18

(2004).

In syllabus point four of Losh, 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.

166 W.Va. at 762-63, 277 S.E.2d at 608.

On appeal, petitioner raises a multitude of issues. Respondent counters that petitioner

raised only two issues before the circuit court: (1) his habeas attorney’s failure to appeal the

dismissal of his first habeas petition after allegedly being appointed to do so; and (2) the alleged

prejudice of the presiding judge necessitating the judge’s disqualification. Upon our review of the

instant petition, we agree with respondent’s characterization and will address only those issues

petitioner raised before the circuit court. See Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522,

102 S.E.2d 733 (1958) (holding that we “will not pass on a non[-]jurisdictional question which has

not been decided by the trial court in the first instance”).

Petitioner argues that the attorney who represented him in the second habeas proceeding

was actually appointed to appeal the dismissal of his first petition and failed to do so. In West

Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test

established in Strickland v. Washington, 466 U.S. 668 (1984): (1) counsel’s performance was

deficient under an objective standard of reasonableness; and (2) there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceedings would have been

different. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (adopting Strickland).6

Moreover, “[i]n reviewing counsel’s performance, courts must apply an objective standard and

determine whether, in light of all the circumstances, the identified acts or omissions were outside

the broad range of professionally competent assistance while at the same time refraining from

engaging in hindsight or second-guessing of trial counsel’s strategic decisions.” Id. at 6-7, 459

S.E.2d at 117-18, syl. pt. 6.

In rejecting this ground for relief, the circuit court found that there was no appointment of

6

The second prong of the Strickland/Miller standard is often referred to as the prejudice

prong. See State v. Hutton, 235 W.Va. 724, 739, 776 S.E.2d 621, 636 (2015).

4

appellate counsel in the first habeas proceeding. Upon review of the record, we agree and find that

petitioner’s motion was not filed in his first habeas proceeding, but in the underlying criminal case.

In the circuit court’s December 26, 2006, order, also entered in the criminal case, the court

appointed counsel not to represent petitioner in an appeal of the November 16, 2006, dismissal,

but in a “habeas corpus” proceeding “before this [c]ourt.” We find that, based on the record,

petitioner’s habeas attorney believed that he was appointed to file an amended petition in the first

proceeding and did not learn that the first petition had been dismissed until a later date. Thereafter,

the same attorney was also appointed to represent petitioner in the second habeas proceeding.

This Court has consistently declined to review some issues such as ineffective assistance

of counsel if they are not first factually developed in a habeas proceeding. See Losh, 166 W.Va. at

767, 277 S.E.2d at 610 (finding that certain issues, “such as incompetency of counsel, of which

[the inmate] would have been unaware at trial, must be litigated in a collateral proceeding”); Syl.

Pt. 10, in part, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992) (holding that “[t]he prudent

defense counsel first develops the record regarding ineffective assistance of counsel in a habeas

corpus proceeding before the lower court, and may then appeal if such relief is denied”). In the

second proceeding, the habeas attorney developed the issue of ineffective assistance of trial

counsel by introducing the deposition testimony of petitioner’s trial attorney into evidence and by

presenting petitioner’s testimony. Consequently, respondent argues that, assuming arguendo the

habeas attorney misunderstood the nature of his original appointment, it did not prejudice

petitioner. We agree. As we found in Tex H. II, petitioner’s second proceeding met the standards

for an omnibus habeas proceeding: an evidentiary hearing and effective assistance of counsel. 2017

WL 1102791, at *3-5. In addition, after the denial of habeas relief in the second proceeding, a

different attorney represented petitioner on appeal. In Tex H. I, we rejected petitioner’s contention

that both his habeas trial counsel and his habeas appellate counsel were ineffective. 2012 WL

2988769, at *2. Therefore, given that petitioner cannot show that he was prejudiced from the lack

of an appeal in his first habeas proceeding, we find that the circuit court properly rejected this

ground for relief.

We further find that we addressed petitioner’s allegations of bias against the presiding

judge in Tex H. II wherein we found “insufficient evidence to warrant [the judge]’s

disqualification.” 2017 WL 1102791, at *3 n.7. Respondent argues that petitioner presents no new

allegations and that petitioner’s disagreement with the judge’s substantive rulings constitute an

insufficient basis on which to disqualify the judge. See State v. Brown, 177 W.Va. 633, 641, 355

S.E.2d 614, 622 (1987) (finding that there was no reason to question the trial judge’s impartiality

and that the judge’s “rulings on the appellant’s pretrial motions had a reasonable basis in law”).

We agree with respondent and find that the circuit court properly rejected this ground for relief.

Similarly, assuming arguendo that the judge should have transmitted petitioner’s motion for

disqualification to this Court for a ruling by the Chief Justice pursuant to West Virginia Trial Court

Rule 17.01(b), the fact that the judge denied the motion himself constituted harmless error. See

Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W.Va. 762, 773, 724 S.E.2d

733, 744 (2012) (finding that a failure to follow proper procedure in ruling on a motion for

disqualification was harmless error when there is insufficient evidence to warrant the judge’s

disqualification).

5

Finally, we find that the circuit court properly denied petitioner’s motion for appointment

of counsel and his motion for discovery because the court was able to render a decision based on

“the petition, exhibits, affidavits[, and] other documentary evidence filed therewith.” Syl. Pt. 3,

Anstey, 237 W.Va. at 412, 787 S.E.2d at 866 (Internal quotations and citations omitted.); see Syl.

Pt. 3, State ex rel. Parsons v. Zakaib, 207 W.Va. 385, 532 S.E.2d 654 (2000) (holding that

discovery in a habeas proceeding is at the court’s discretion). Therefore, we conclude that the

circuit court did not err in dismissing petitioner’s habeas petition and denying his various motions.

For the foregoing reasons, we affirm the circuit court’s December 11, 2017, order

dismissing petitioner’s petition for a writ of habeas corpus and denying his motion for appointment

of counsel, motion for discovery, and motion to disqualify the presiding judge.

Affirmed.

ISSUED: June 17, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison

6