Harold B. v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
Harold B.,
Petitioner Below, Petitioner September 3, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs) No. 19-0524 (Harrison County 18-C-146-3) OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Harold B.,1 by counsel David Mirhoseini, appeals the May 6, 2019, amended
order of the Circuit Court of Harrison County denying his amended petition for a writ of habeas
corpus in his second habeas corpus proceeding. Respondent Donnie Ames, Superintendent, Mt.
Olive Correctional Complex, by counsel Scott E. Johnson, 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).
1
In May of 2010, petitioner was indicted in the Circuit Court of Harrison County on the
following five counts: one count of first-degree sexual assault; two counts of first-degree sexual
abuse; and two counts of sexual abuse by a parent, guardian, custodian, or person in a position of
trust. Upon petitioner’s motion, the circuit court severed one count of first-degree sexual abuse,
which involved a different victim. In December of 2010, following a jury trial, petitioner was
convicted of one count of first-degree sexual assault and one count of sexual abuse by a parent,
guardian, custodian, or person in a position of trust. Petitioner was acquitted of the remaining two
charges.
In May of 2011, the circuit court sentenced petitioner to a term of incarceration of ten to
twenty years for his conviction of sexual abuse by a parent, guardian, custodian, or person in a
position of trust and a term of incarceration of 25 to 100 years for his conviction of first-degree
sexual assault, to be served concurrently. Thereafter, petitioner appealed his convictions to this
Court, raising the following assignments of error: (1) the circuit court erred in allowing the
victim’s mother, a State witness, to be present in the courtroom during the testimony of her
daughter; (2) the circuit court erred when it admitted photographs of a tractor and allowed
testimony on the same without sufficient authentication of their relevance or whether the person on
the tractor was petitioner; (3) the circuit court erred in sustaining the State’s objections to
petitioner’s questioning of the investigating officer and the person who conducted the forensic
interview of the child victim; (4) the victim was inherently unbelievable, and her testimony was
insufficient to support the jury’s verdict; and, (5) the cumulative effect of these errors constituted a
due process violation of petitioner’s constitutional rights. In State v. [Harold B.] (“Harold B. I”),
No. 11-0941, 2012 WL 3079154 (W. Va. May 29, 2012) (memorandum decision), this Court
rejected petitioner’s assignments of error and affirmed the decision of the circuit court.
On May 10, 2013, petitioner filed a petition for writ of habeas corpus in the circuit court.
The circuit court appointed counsel to represent petitioner in the habeas proceeding. On September
2, 2014, petitioner filed a Losh checklist indicating his desire to waive certain grounds for relief.2
Petitioner’s Losh checklist was accompanied by a certificate signed by petitioner and a certificate
signed by habeas counsel, stating that they discussed the grounds listed thereon and that any
ground not raised will be deemed waived in subsequent proceedings. Habeas counsel’s certificate
further stated, in pertinent part, that “[c]ounsel for petitioner certifies that he has examined the
available records of the convicting court(s).”
On February 10, 2015, the circuit court held an omnibus hearing, at which petitioner was
the only witness. At the omnibus hearing, the circuit court addressed all the grounds raised by
petitioner: (1) ineffective assistance of trial counsel; (2) constitutional errors in evidentiary
rulings; (3) allegedly prejudicial statements by the prosecution; (4) sufficiency of the evidence;
2
In Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), we compiled a
nonexclusive 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. Id. at 768-70, 277
S.E.2d at 611-12.
2
and (5) improper communication between an assistant prosecutor and a juror. By order entered on
December 14, 2015, the circuit court denied the petition. In Harold B. v. Ballard (“Harold B. II”),
No. 16-0029, 2016 WL 5210852 (W. Va. September 19, 2016) (memorandum decision), this
Court affirmed the circuit court’s December 14, 2015, order denying petitioner’s first habeas
petition, adopting the “well-reasoned findings and conclusions” set forth therein. Id. at *3.
On May 30, 2018, petitioner filed the instant petition for a writ of habeas corpus, alleging
that his habeas counsel and habeas appellate counsel provided ineffective assistance in the first
habeas proceeding. By order entered on May 30, 2018, the circuit court appointed counsel to
represent petitioner in the instant habeas proceeding. On August 15, 2018, petitioner filed an
amended petition, alleging ineffective assistance of counsel on the part of his trial counsel, his
appellate counsel in Harold B. I, his habeas counsel in the first habeas proceeding, and his habeas
appellate counsel in Harold B. II. Petitioner argued that his former attorneys failed to raise
additional issues which should have been raised in the prior proceedings and failed to make
additional arguments under those issues which were raised in the prior proceedings. By order
entered on January 16, 2019, the circuit court denied the amended petition.
On January 19, 2019, petitioner filed a motion to alter or amend the January 16, 2019,
order, seeking the opportunity to file a second amended petition pursuant to Rule 4(c) of the Rules
Governing Post-Conviction Habeas Corpus Proceedings in West Virginia.3 On March 26, 2019,
respondent filed a response to the motion. On May 6, 2019, the circuit court granted the motion to
the extent that it entered an amended order clarifying that it was denying petitioner’s second
amended petition because all the issues related to petitioner’s former attorneys were waived or
adjudicated in either Harold B. I or Harold B. II.
Petitioner now appeals the circuit court’s May 6, 2019, amended order denying the
3
Rule 4(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West
Virginia provides:
The petition shall be examined promptly by the judge to whom it is assigned. The
court shall prepare and enter an order for summary dismissal of the petition if the
contentions in fact or law relied upon in the petition have been previously and
finally adjudicated or waived. The court’s summary dismissal order shall contain
specific findings of fact and conclusions of law as to the manner in which each
ground raised in the petition has been previously and finally adjudicated and/or
waived. If the petition contains a mere recitation of grounds without adequate
factual support, the court may enter an order dismissing the petition, without
prejudice, with directions that the petition be refiled containing adequate factual
support. The court shall cause the petitioner to be notified of any summary
dismissal.
(Emphasis added).
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petition. This Court reviews a circuit court order denying a petition for a writ of habeas corpus
under the following standard:
“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).
Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).
Furthermore,
“‘[a] court having jurisdiction over habeas corpus proceedings may deny a
petition for a writ of habeas corpus without a hearing . . . 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. Pt. 3, id. at 412, 787 S.E.2d at 865. Similarly, pursuant to the West Virginia Post-Conviction
Habeas Corpus Act, West Virginia Code §§ 53-4A-1 to -11, “discovery is available only where a
court in the exercise of its discretion determines that such process would assist in resolving a
factual dispute that, if resolved in the petitioner’s favor, would entitle him or her to relief.” Syl. Pt.
2, State ex rel. Wyant v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003) (quoting Syl. Pt. 3,
State ex rel. Parsons v. Zakaib, 207 W.Va. 385, 532 S.E.2d 654 (2000)).
However, because we have before us the denial of petitioner’s second habeas petition, we
first consider the application of Syllabus Points 3 and 4 of Losh v. McKenzie, 166 W. Va. 762, 277
S.E.2d 606 (1981), in which this Court held, in pertinent part:
A waiver of a constitutional right must be knowing and intelligent, that is a
voluntary relinquishment of a known right, and if the waiver is conclusively
demonstrated on the record at trial or at a subsequent omnibus habeas corpus
hearing, the waiver makes any issue concerning the right waived res judicata in
succeeding actions in habeas corpus.
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[.]
On appeal, petitioner argues that the circuit court erred in denying the instant petition prior
to an opportunity for discovery and completion of another omnibus hearing because his waiver
4
was not knowingly and intelligently made in Harold B. II. Respondent counters that the circuit
court properly denied the petition. We agree with respondent.
Based upon our review of the February 10, 2015, omnibus hearing transcript, we find that
petitioner testified extensively regarding the issues he was waiving at that hearing. Initially, the
circuit court advised petitioner that if he failed to raise a ground for relief at the hearing, he would
be “forever barred” from raising the issue in the future. Petitioner responded that he understood.
Next, habeas counsel informed the circuit court that he met with petitioner twice to prepare him for
the omnibus hearing, and that as a result of those meetings, petitioner wanted to waive allegedly
erroneous jury instructions, which was an issue that was raised in petitioner’s petition. Habeas
counsel asked petitioner, “What I was asking is [the] instructions to the jury is something you’re
not complaining about anymore, correct?” Petitioner answered, “Right.”
The circuit court went through the complete Losh checklist with petitioner, requiring him
to state “raise” or “waive” as to each ground for relief listed thereon. At the end of the circuit
court’s questioning, it was unclear whether petitioner was claiming that he was mentally
incompetent at the time of the offenses. For clarification, habeas counsel asked petitioner if he
wanted to waive that issue which was “[n]umber 39 on the Losh list.” Petitioner responded that he
wanted to waive number 39 on the Losh checklist. Habeas counsel further confirmed, for the
second time, that petitioner was waiving the argument that the jury instructions were erroneous.
Petitioner responded, “Correct.” Finally, habeas counsel asked petitioner if there were any other
issues he wanted to raise:
Q. Now, [petitioner], have I covered all of the claims that you and I have
mutually discussed that you want and have this only opportunity to present today?
A. Yes, sir.
Q. Okay. Is there any other—is there anything else you want to tell this [c]ourt
that I failed to asked you?
A. No, I think we covered everything.
In light of petitioner’s testimony at the omnibus hearing, we find that his waiver of all
grounds not raised at the hearing was knowingly and intelligently made. Therefore, after reviewing
the record and our decisions in Harold B. I and Harold B. II, we concur with the circuit court’s
finding that all the issues related to petitioner’s attorneys were waived or adjudicated in either
Harold B. I or Harold B. II.4 Accordingly, we conclude that the circuit court’s denial of the instant
4
Petitioner argues that because trial counsel did not testify at the omnibus hearing, there
was no testimony regarding counsel’s trial strategy in Harold B. II. We disagree. Petitioner’s
testimony reflected that it was counsel’s trial strategy not to make unnecessary objections and not
to cross-examine the child victim too vigorously because, if petitioner was perceived to be
“picking on a child, [the jury would] go against [petitioner].” In affirming the circuit court’s denial
(continued . . .)
5
habeas petition was not an abuse of discretion.
For the foregoing reasons, we affirm the circuit court’s May 6, 2019, amended order
denying petitioner’s amended petition for a writ of habeas corpus in his second habeas corpus
proceeding.
Affirmed.
ISSUED: September 3, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
of petitioner’s first habeas petition, we noted in Harold B. II that “[i]t is a very common concern
that objections often highlight a point that the objector actually wishes to conceal” and that it was
“reasonable to believe that a harsh cross-examination of a five[-]year[-]old alleged sexual assault
victim would prove distasteful to a jury.” 2016 WL 5210852, at *5. We further noted in Harold B.
II that the jury acquitted petitioner of two out of the four charges that he was facing at trial. Id. at
*1.
6