William Mark Johnson v. David Ballard, Warden (Memorandum Decision)

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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED William Mark Johnson, Petitioner Below, Petitioner vs) No. 11-0209 (Preston County No. 02-C-42 & 07-C-256) November 19, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA David Ballard, Warden Mount Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner William Mark Johnson, by counsel Melissa Giggenbach, appeals the Circuit Court of Preston County s order entered January 7, 2011, which denied his third and fourth petitions for writ of habeas corpus. Respondent David Ballard, Warden of Mount Olive Correctional Complex, is represented by counsel Barbara H. Allen. This Court has considered the parties= briefs and the record on appeal. Upon consideration of the standard of review, the briefs, and the record presented, we find that a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. In 1988, petitioner was found guilty of six felony counts, including kidnapping and various sexual crimes arising from the rape of a thirteen-year-old girl. Petitioner received a life sentence, with a recommendation of mercy, plus an additional term of 61 to 105 years in prison. In 1992, petitioner filed a petition for writ of habeas corpus alleging twenty-three assignments of error. Petitioner was represented in those proceedings by attorney Howard Higgins. Following this Court s decision in In the Matter of an Investigation of West Virginia State Police Crime Laboratory, Serology Division (Zain I), 190 W.Va. 321, 438 S.E.2d 501 (1993), petitioner filed a second petition for a writ of habeas corpus concerning police serologist Fred Zain s involvement and testimony in petitioner s criminal trial. The circuit court denied relief in both habeas cases. In 1998, this Court refused petitions for appeal from both cases. In 2002 and 2007, petitioner filed his third and fourth petitions for writ of habeas corpus, which were subsequently consolidated by the circuit court. Ultimately, following an evidentiary hearing, the circuit court denied the third and fourth habeas petitions by order entered on December 10, 2010, and reissued on January 7, 2011, for purposes of appeal. This order is the subject of the present appeal. We consider this appeal using the following standard of review: 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 1 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). Petitioner raises six assignments of error, four of which allege the circuit court erred in finding that issues previously addressed in earlier habeas petitions were barred by the doctrine of res judicata or have been waived. The Court finds no merit to petitioner s contention in this regard and adopts and incorporates the circuit court s well-reasoned findings and conclusions contained in the circuit court s Order Denying Petition For Habeas Corpus as to these four assignments of error. The Clerk is directed to attach a copy of the circuit court s January 7, 2011, order to this memorandum decision. In a fifth assignment of error, petitioner contends that it was error for the circuit court to rule that testimony from Dr. William Fremouw in a prior habeas case was not persuasive. However, Dr. Fremouw s testimony was limited in scope and duration and mostly addressed matters that are no longer at issue because they were previously decided. Petitioner also contends that it was error for the circuit court to refuse to take judicial notice of prior testimony of George Castelle, Kanawha County Chief Public Defender. Mr. Castelle s testimony addressed claims of ineffective assistance of a different former counsel, rather than the issues raised in the present petitions. Moreover, as noted by the circuit court, petitioner had the opportunity to call Mr. Castelle as a witness in these proceedings but chose not to do so. Accordingly, we find no error in the circuit court s rulings regarding this evidence. Petitioner s final assignment of error is that the circuit court erred in failing to make findings of fact and conclusions of law addressing his allegations of ineffective assistance of his first habeas counsel Mr. Higgins. Notwithstanding the circuit court s extensive analysis of the other assignments of error, petitioner is correct that the order does not contain findings in this regard. This appears to have been a mere oversight by the circuit court. This Court remands the case to the circuit court for findings and conclusions in accordance with Rule 9(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings on the claim of ineffective assistance of first habeas counsel. With regard to all other assignments of error, the circuit court is affirmed. Affirmed in part, Remanded with directions. ISSUED: November 19, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 2