Barry W. v. David Ballard, Warden, 16-0214

Background

Petitioner Barry W., convicted in 2001 of multiple counts of first-degree sexual assault and sexual abuse by a custodian involving stepchildren, received lengthy concurrent and consecutive indeterminate sentences.
He first filed a state habeas petition in 2005 raising multiple claims (ineffective assistance, confrontation, indictment validity, prosecutor misconduct, jury instructions, investigation failures); the circuit court denied relief in 2006 and this Court refused his appeal.
Petitioner filed a federal habeas petition in 2007 and later pursued an addendum in state court (filed 2010); the circuit court held an omnibus habeas proceeding with discovery and expert depositions and denied relief in 2012; this Court affirmed in a 2013 memorandum decision.
In February 2016 petitioner filed a successive state habeas petition alleging certain sub-grounds were not adequately raised or discussed in prior habeas proceedings (play therapist testimony, defective jury instructions, grand jury presentation/indictment defects particularly as to victim D.H.).
The circuit court denied the 2016 petition and request for appointed counsel as barred by res judicata under Losh; it found the new claims were raised or could have been raised earlier and that habeas counsel was not ineffective in the prior proceeding.
The Supreme Court of Appeals affirmed, holding the petition was an impermissible successive habeas petition and that petitioner failed to show ineffective assistance of habeas counsel or other grounds warranting relief or appointment of counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2016 petition was barred by res judicata / successive habeas rule	Barry argued several sub-grounds were not sufficiently raised or discussed in prior habeas, so they should be considered now	Ballard argued prior omnibus habeas and findings preclude relitigation under Losh; claims were raised or could have been raised earlier	Held: Petition barred as successive/res judicata — claims were raised or could have been with reasonable diligence
Whether habeas counsel was ineffective for failing to raise/discuss sub-grounds	Barry claimed prior habeas counsel failed to adequately present issues (play therapist testimony, jury instructions, indictment presentation)	Ballard argued counsel did raise these matters sufficiently and petitioner received discovery and an expert; Strickland standard not met	Held: No ineffective assistance of habeas counsel; petitioner failed Strickland test
Admissibility and effect of play therapist (Phyllis Hasty) testimony	Barry asserted Hasty’s testimony was improper and undermined his trial fairness	Ballard noted prior proceedings addressed Hasty’s testimony, expert retained in habeas, and circuit court rejected the claim	Held: Court found prior consideration and denial; not a basis for successive relief
Validity of indictment / grand jury presentation (esp. as to victim D.H.) and jury instructions	Barry alleged prosecutor confused grand jury or presentation produced invalid counts; jury instructions failed to list essential elements	Ballard pointed to pretrial challenges, the circuit court’s finding of sufficient evidence at close of State’s case, and prior review of jury instructions	Held: Court agreed these issues were raised or could have been raised earlier; prior findings show no defect or prejudice; claim denied

Key Cases Cited

Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (W. Va. 2006) (standard of review in habeas appeals)
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (W. Va. 1981) (prior omnibus habeas is res judicata except limited circumstances)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged test for ineffective assistance of counsel)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (W. Va. 1995) (adopting Strickland standard in West Virginia)
Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (W. Va. 1973) (habeas petition may be denied without hearing or counsel if documentary record shows no relief)