Hartzel Ray Foster v. David Ballard, Warden, 16-1000

Background

In 1978 Foster killed a woman during a cocaine transaction; his first conviction was reversed for trial error, he was retried, convicted of first-degree murder, and sentenced to life without parole.
Foster repeatedly filed successive state habeas petitions (1990, 1991/1997 consolidated, 2006, 2010, 2016) raising claims including ineffective assistance of trial counsel (failure to accept a plea to second-degree murder; failure to call/coerce co-defendant), improper jury instructions, and pretrial publicity/change of venue issues.
The Barbour County circuit court repeatedly denied relief (often without an evidentiary hearing), finding the record sufficient, counsel not ineffective under Strickland, and that the co-defendant’s testimony was not compelled by the State.
The circuit court treated the consolidated 1991/1997 proceedings as an omnibus habeas addressing the merits and applied res judicata to bar later identical or known claims; Foster sought appointment of counsel relying on Martinez v. Ryan.
On appeal from the 2016 denial, the West Virginia Supreme Court affirmed, holding Foster’s petition successive/res judicata, rejecting his Martinez argument, and finding no abuse of discretion in denying appointment of counsel or habeas relief.

Issues

Issue	Foster's Argument	Ballard's Argument	Held
Successive habeas/res judicata	Prior consolidated habeas did not constitute an omnibus hearing because it lacked an evidentiary hearing; later petition should be heard	Prior consolidated proceeding was an omnibus habeas; claims were or could have been raised and are barred by res judicata	Court held the consolidated 1991/1997 proceedings constituted an omnibus hearing; res judicata bars successive claims
Ineffective assistance of habeas counsel	Habeas counsel failed to raise or adequately press trial claims and failed to obtain an evidentiary hearing	Habeas counsel did request a hearing; the court reasonably rejected the need for one and fully developed the record	Court found record showed counsel was not ineffective under Strickland and no prejudice from alleged omissions
Applicability of Martinez v. Ryan	Martinez creates a retroactive change requiring appointment of counsel or excusing procedural default in state habeas where prior counsel was ineffective	Martinez does not create a constitutional right to appointed counsel in collateral proceedings; Foster misreads Martinez	Court held Martinez does not mandate appointment of counsel or otherwise overcome res judicata here; Martinez was misapplied by Foster
Trial counsel ineffective re: plea offer and co-defendant	Trial counsel failed to accept/communicate a plea to second-degree murder and failed to secure co-defendant testimony	Plea was withdrawn or not valid; counsel acted reasonably; co-defendant had immunity/advice and was not called for legitimate reasons	Court and circuit court repeatedly found no deficient performance or prejudice; these claims lack merit

Key Cases Cited

State v. Foster, 171 W.Va. 479, 300 S.E.2d 291 (1983) (reversed first trial for evidentiary/impeachment error)
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (omnibus habeas bars later claims except ineffective habeas counsel, new evidence, or retroactive change in law)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (adopts Strickland two‑prong test for ineffective assistance in West Virginia)
Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006) (standard of review for habeas appeals: abuse of discretion, clearly erroneous, de novo)
Martinez v. Ryan, 566 U.S. 1 (2012) (limited federal rule about procedural default and ineffective trial counsel; does not create a constitutional right to appointed counsel in collateral proceedings)
White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004) (discourages repeated habeas attempts; “another bite at the apple” principle)
Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975) (due process does not permit endless collateral attacks)
State v. Trail, 236 W.Va. 167, 778 S.E.2d 616 (2015) (cumulative-error doctrine inapplicable where no errors found)