Yasser Abdelhaq v. Donnie Ames

FILED
STATE OF WEST VIRGINIA June 23, 2021
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Yasser Abdelhaq,
Petitioner Below, Petitioner
vs.) No. 20-0521 (Ohio County 19-C-196 MJO)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Yasser Abdelhaq appeals the March 30, 2020, order of the
Circuit Court of Ohio County denying his second petition for a writ of habeas corpus. Respondent
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Lara K. Bissett, 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.
In January of 2000, petitioner was indicted in the Circuit Court of Ohio County on one
count of first-degree murder for the stabbing death of Dana Tozar (“the victim”). At a jury trial in
August of 2000, petitioner was convicted of first-degree murder and sentenced to a life term of
incarceration without the possibility of parole. Petitioner appealed his conviction in State v.
Abdelhaq (“Abdelhaq I”), 214 W. Va. 269, 588 S.E.2d 647 (2003), and this Court vacated the
conviction due to a defective indictment and remanded the matter. Id. at 274, 588 S.E.2d at 652.
Shortly after this Court’s decision in Abdelhaq I, petitioner contends that he filed in the circuit
court, as a self-represented litigant, a “blue print” outlining his strategy for his second trial. In this
“blue print,” petitioner states that he “instructed counsel not to tell the jury he was guilty of murder
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[in a second trial].”
Petitioner was indicted for a second time on one count of first-degree murder for the
murder of the victim and was represented by attorneys Robert G. McCoid and John J. Pizzuti. At
petitioner’s second trial, he admitted to killing the victim and sought a conviction on the
lesser-included offense of second-degree murder. Petitioner was again convicted of first-degree
murder. In the bifurcated sentencing stage, the jury did not recommend mercy. Accordingly, the
circuit court sentenced petitioner to a life term of incarceration without the possibility of parole.
Subsequently, petitioner’s second appeal to this Court was refused by order entered on May 25,
2005.
In 2006, petitioner filed his first petition for a writ of habeas corpus in the circuit court,
raising the following fourteen grounds for relief: (1) Whether petitioner was denied effective
assistance of trial counsel; (2) Whether the evidence was insufficient to support a conviction for
first-degree murder; (3) Whether the introduction of autopsy photographs was more prejudicial
than probative; (4) Whether petitioner was denied a right to a fair sentencing when the circuit court
allowed the victim’s family to testify during the second phase of the bifurcated trial as to their
preference that he be denied mercy; (5) Whether the jury should have been instructed with regard
to mitigating factors on which it could determine petitioner’s eligibility for parole; (6) Whether the
circuit court’s refusal to suppress all evidence seized during a warrantless search of the motel room
where the crime took place was erroneous; (7) Whether the admission of hearsay testimony was
erroneous; (8) Whether the admission of photographs of the victim before her death, i.e. “life
photographs,” was erroneous; (9) Whether the circuit court’s refusal to admit evidence of the
victim’s drug use was erroneous; (10) Whether the circuit court’s refusal to admit evidence of a
witness’s past criminal history was erroneous; (11) Whether the inclusion of a jury instruction with
regard to “transferred intent” was erroneous; (12) Whether the circuit court’s failure to include a
jury instruction defining the term “spontaneous,” as it related to the issue of deliberation, was
erroneous; (13) Whether the circuit court’s jury instruction, instructing the jury that the use of a
deadly weapon allows an inference of malice and intent to kill, was incomplete; and (14) Whether
the circuit court’s refusal to limit petitioner’s cross-examination of a State’s witness with regard to
specific intent was erroneous. The circuit court denied the petition by order entered on March 22,
2006, without holding a hearing.
Petitioner appealed the circuit court’s March 22, 2006, order denying his first habeas
petition on May 3, 2006. By order entered on December 6, 2006, this Court “grant[ed]
[petitioner’s] petition for appeal.” The Court did not reverse the March 22, 2006, order, but
remanded the case to the circuit court “for the holding of an omnibus habeas corpus hearing on the
issue of ineffective assistance of [trial] counsel.” Upon remand, the parties litigated whether
petitioner was barred from raising every issue set forth in the habeas petition except for ineffective
assistance of trial counsel. Following a September 11, 2015, hearing, 1 by order entered on October
1
Litigation in petitioner’s first habeas proceeding was protracted. As the circuit court
explained in a December 29, 2016, order denying petitioner’s first habeas petition, “[t]hough much
has happened in the intervening years since this matter was remanded to [the] [c]ircuit [c]ourt by
(continued . . .)
2
19, 2015, the circuit court ruled that petitioner was barred “from raising any claim other than his
claim for ineffective assistance of [trial] counsel,” finding that petitioner misinterpreted this
Court’s decision in Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), setting forth
principles governing the application of the doctrine of res judicata in habeas cases.
With regard to ineffective assistance of trial counsel, petitioner and both trial counsels
testified at an August 2, 2016, omnibus hearing. Petitioner asserts that the issue of his strategy
“blue print” for the second trial “was never settled” because “counsel state[d] they did not have a
copy of the trial strategy.” Nevertheless, Mr. McCoid testified unequivocally that petitioner
understood “the full ramifications” of counsels’ trial strategy of admitting that he killed the victim
and asking for a conviction of second-degree murder and gave his consent. At several points
during his testimony, Mr. McCoid addressed discussions the attorneys had with petitioner
concerning the trial strategy, petitioner’s understanding of the risks and benefits of such a strategy,
and petitioner’s consent to pursuing it. Having the benefit of seeing the State’s theory of the case
during the first trial, Mr. McCoid testified that they reevaluated the trial strategy since this “was
not a case about whether [petitioner] had taken [the victim’s] life,” but was rather “about what his
mental status was at the time that he did so.” Mr. McCoid relied on portions of his opening
statement where he admitted that petitioner killed the victim, but urged the jury to convict
petitioner of second-degree murder due to the absence of premeditation. Based upon the opening,
Mr. McCoid indicated during the omnibus hearing that
[i]t is inconceivable that I would have given an opening statement in a first-degree
murder case asking the jury to convict my client of second-degree murder without
hav[ing] closely consulted with my client, discussed the minutia associated with
that decision and obtained the full consent of my client in . . . advancing that
defense.
Thereafter, by order entered on December 29, 2016, the circuit court rejected petitioner’s
ineffective assistance claim and denied the habeas petition.
Petitioner appealed the circuit court’s December 29, 2016, denial of the habeas petition to
this Court. However, petitioner did not challenge the court’s October 19, 2015, order allowing him
to raise only ineffective assistance of trial counsel at the omnibus hearing. In Abdelhaq v. Terry
(“Abdelhaq II”), No. 17-0078, 2018 WL 6131283 (W. Va. November 21, 2018) (memorandum
decision), this Court affirmed the circuit court’s denial of the habeas petition. Relevant here, the
Court found that “[a]side from [petitioner’s] unsupported claims that he never agreed to the
strategy to admit culpability and seek a second-degree murder conviction, the evidence obtained at
the omnibus hearing overwhelmingly establishes that petitioner’s trial counsel advanced this
strategy with petitioner’s consent and support.” Id. at *3. Petitioner subsequently filed a petition
the Supreme Court of Appeals, the events are not relevant for [present] purposes.”
3
for rehearing which the Court refused by order entered on March 7, 2019. On March 15, 2019, this
Court issued its mandate, and the decision in Abdelhaq II became final. 2
Petitioner filed his second habeas petition in the circuit court on August 12, 2019. In the
habeas petition, petitioner argued that the circuit court erred in its October 19, 2015, order in
Abdelhaq II by allowing him to raise only ineffective assistance of trial counsel at the omnibus
hearing. Petitioner further argued that habeas counsel in Abdelhaq II was ineffective in failing to
adequately argue to the circuit court that none of the fourteen issues set forth in the first habeas
petition were adjudicated prior to the August 2, 2016, omnibus hearing. Accordingly, petitioner
reasserted every issue from the first habeas petition in his second habeas petition.3 With regard to
ineffective assistance of trial counsel, petitioner argued that the United States Supreme Court’s
decision in McCoy v. Louisiana, 138 S.Ct. 1500 (2018), represented a change in the law favorable
to him. By order entered on March 30, 2020, the circuit court denied the second habeas petition,
finding that petitioner’s claims were adjudicated in the first habeas proceeding in Abdelhaq II. The
circuit court rejected petitioner’s claim that habeas counsel failed to adequately argue that none of
the fourteen issues set forth in the first habeas petition were adjudicated prior to the August 2,
2016, omnibus hearing, due to a lack of support for the claim. Finally, the circuit court found that
the United States Supreme Court’s decision in McCoy did not represent a change in the law such
that petitioner would be allowed to relitigate the issue of whether he consented to trial counsels’
strategy of admitting that he killed the victim and asking for a conviction of second-degree murder.
Petitioner now appeals the circuit court’s March 30, 2020, order denying his second habeas
petition. This Court reviews a circuit court order denying a habeas petition under the following
standards:
“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).
2
Rule 26(a) of the West Virginia Rules of Appellate Procedure provides, in pertinent part,
that “an opinion of the Court or memorandum decision of the Court considering the merits of a
case is not final until the mandate has been issued.”
3
In petitioner’s second habeas petition, he raised one additional issue: that he was not read
his Miranda rights before questioning in a custodial setting. Notwithstanding that conclusory
allegation, petitioner failed to include factual allegations to support his contention. Therefore, we
find that petitioner’s claim based upon Miranda v. Arizona, 384 U.S. 436 (1966), was subject to
summary denial. See Losh v. McKenzie, 166 W. Va. 762, 771, 277 S.E.2d 606, 612 (1981) (finding
that an assertion of a claim “without detailed factual support does not justify the issuance of a writ,
the appointment of counsel, and the holding of a hearing”).
4
....
“‘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).
Syl. Pts. 1 & 3, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). However, because we
have before us the denial of petitioner’s second habeas petition, we first consider the application of
Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981):
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 . . .
or, a change in the law, favorable to the applicant, which may be applied
retroactively.
On appeal, petitioner argues that the circuit court erred in its October 19, 2015, order in
Abdelhaq II in allowing him to raise only ineffective assistance of trial counsel at the omnibus
hearing. Petitioner further argues that none of the fourteen issues set forth in the first habeas
petition were adjudicated prior to the August 2, 2016, omnibus hearing because our December 6,
2006, order granting his first habeas appeal was not a decision on the merits pursuant to the
Syllabus of Smith v. Hedrick, 181 W. Va. 394, 382 S.E.2d 588 (1989). Respondent makes the
concession that, pursuant to Smith, none of the issues set forth in the first habeas petition, except
for ineffective assistance of trial counsel, were adjudicated in Abdelhaq II. We decline to accept
respondent’s concession. 4
In the Syllabus of Smith, we held that:
[t]his Court’s rejection of a petition for appeal is not a decision on the merits
precluding all future consideration of the issues raised therein, unless, as stated in
[former] Rule 7 of the West Virginia Rules of Appellate Procedure, such petition is
rejected because the lower court’s judgment or order is plainly right, in which case
no other petition for appeal shall be permitted. 5
4
In Syllabus Point 8 of State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991), we held that
this Court will accept a party’s concession only after our own independent review of the issue.
5
The present Rules of Appellate Procedure took effect on December 1, 2010.
5
181 W. Va. at 394, 382 S.E.2d at 588. We find that the Syllabus of Smith, which governs rejections
of petitions for appeal, does not apply to this case because our December 6, 2006, order “grant[ed]
[petitioner’s] petition for appeal.” See Abdelhaq II, 2018 WL 6131283, at *1 (stating that, in our
December 6, 2006, order, “this Court granted petitioner relief”) (emphasis added). While granting
petitioner’s first habeas appeal, we did not reverse the circuit court’s prior denial of the first habeas
petition, but remanded the case to the circuit court “for the holding of an omnibus habeas corpus
hearing on the issue of ineffective assistance of [trial] counsel.” See Abdelhaq II, 2018 WL
6131283, at *1 (stating that we “ordered the matter remanded for the holding of an omnibus
hearing on the limited issue of ineffective assistance of trial counsel”) (emphasis added). Upon
remand from our December 6, 2006, order, the parties litigated the issue of whether petitioner
could raise only ineffective assistance of trial counsel. By order entered on October 19, 2015, the
circuit court ruled that petitioner was barred “from raising any claim other than his claim for
ineffective assistance of [trial] counsel,” finding that petitioner misinterpreted this Court’s
decision in Losh where we set forth principles governing the application of the doctrine of res
judicata in habeas cases.
If petitioner believed that the circuit court erred in ruling that he was barred from raising
any claim other than his claim of ineffective assistance of trial counsel at the omnibus hearing, the
time for challenging that ruling was in Abdelhaq II because, “if an appeal is taken from what is
indeed the last order disposing of the last of all claims as to the last of all parties, then the appeal
brings with it all prior orders.” Riffe v. Armstrong, 197 W. Va. 626, 637, 477 S.E.2d 535, 546
(1996), modified on other grounds, Moats v. Preston Cty. Comm’n, 206 W. Va. 8, 521 S.E.2d 180(1999). The only issue petitioner raised in Abdelhaq II was ineffective assistance of trial counsel,
and he failed to challenge the ruling that he was barred from raising his other issues. With the
issuance of this Court’s mandate in Abdelhaq II, all rulings therein have become final, and we no
longer have jurisdiction of that case. W. Va. Rul. App. Proc. 26(a) (providing, in pertinent part,
that the “[i]ssuance of the mandate terminates jurisdiction of the Supreme Court in an action before
this Court”). Therefore, as the circuit court’s ruling set forth in its October 19, 2015, order in
Abdelhaq II is now final, we find that the circuit court did not err in finding that the issues
petitioner reasserted in the second habeas petition were adjudicated in Abdelhaq II. 6
Nevertheless, petitioner further argues that he is entitled to an omnibus hearing and
appointment of counsel in his second habeas proceeding pursuant to Syllabus Point 4 of Losh
based on alleged ineffective assistance of habeas counsel and a purported change in the law
6
Respondent suggests that we remand this case to the circuit court with directions to make
findings of fact and conclusions of law as to every issue petitioner raises except for ineffective
assistance of trial counsel. However, respondent makes this suggestion based on the concession
that none of the other issues set forth in the first habeas petition were adjudicated in Abdelhaq II.
As we explained above, we decline to accept respondent’s concession. Therefore, we find that the
circuit court’s correct finding that the issues petitioner reasserted in the second habeas petition
were adjudicated in Abdelhaq II constituted a sufficient basis to support its denial of the second
habeas petition.
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favorable to him. We disagree and easily dispense with petitioner’s ineffective assistance of
habeas counsel claim pursuant to the following standard:
In the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-pronged test established in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.
Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Here, we find that habeas
counsel’s performance was not deficient under an objective standard of reasonableness as the
circuit court’s October 19, 2015, order reflects that habeas counsel presented multiple arguments
that the circuit court “could consider issues other than . . . ineffective assistance of counsel . . . on
remand” from this Court’s December 6, 2006, order. Therefore, we conclude that the circuit court
properly found there was no support for the claim that habeas counsel in Abdelhaq II failed to
adequately present this issue to the circuit court.
With regard to the other exception to the doctrine of res judicata allegedly applicable to this
case, petitioner argues that the United States Supreme Court’s decision in McCoy is a change in the
law favorable to him, but fails to address whether McCoy “may be applied retroactively.” Syl. Pt.
4, Losh, 166 W. Va. at 762-63, 277 S.E.2d at 608. Even if McCoy may be retroactively applied, it
is arguable that the holding of McCoy does not extend beyond of the death penalty context. In
McCoy, the Supreme Court held that “a defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the
defendant the best chance to avoid the death penalty.” 138 S.Ct. at 1505. The Supreme Court
further stated that “[b]ecause a client’s autonomy, not counsel’s competence, is in issue,” the test
for determining ineffective assistance of counsel, set forth in Strickland, does not apply when a
defendant objects to trial counsel’s strategy of admitting guilt. 138 S.Ct. at 1510-11. Rather, the
Supreme Court found that trial counsel’s violation of the defendant’s Sixth Amendment-secured
autonomy is not subject to harmless error review. Id. at 1511. 7
Assuming, arguendo, that petitioner could show that McCoy applies, the Supreme Court in
McCoy distinguished that case from cases where the defendant “complain[s] about the admission
of his guilt only after trial.” Id. at 1509 (citing Florida v. Nixon, 543 U.S. 175, 185 (2004)). Here,
we found in Abdelhaq II that, “[a]side from his unsupported claims that he never agreed to the
strategy to admit culpability and seek a second-degree murder conviction, the evidence obtained at
the omnibus hearing overwhelmingly establishes that petitioner’s trial counsel advanced this
7
The Sixth Amendment to the United States Constitution provides that a defendant is
entitled to “the [a]sistance of [c]ounsel for his defence.” In McCoy v. Louisiana, 138 S.Ct. 1500(2018), the United States Supreme Court found that “the Sixth Amendment ‘contemplat[es] a
norm in which the accused, and not a lawyer, is master of his own defense.’” 138 S.Ct. at 1508(quoting Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10 (1979)).
7
strategy with petitioner’s consent and support.” 2018 WL 6131283, at *3. Therefore, we find that
the instant case is factually distinguishable from McCoy and concur with the circuit court’s finding
that petitioner would be not allowed, pursuant to Syllabus Point 4 of Losh, to relitigate the issue of
whether he consented to trial counsels’ strategy of admitting that he killed the victim and asking
for a conviction of second-degree murder. Accordingly, we conclude that the circuit court did not
abuse its discretion in denying petitioner’s second habeas petition.
For the foregoing reasons, we affirm the circuit court’s March 30, 2020, order denying
petitioner’s second petition for a writ of habeas corpus.
Affirmed.
ISSUED: June 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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