Jonathan Lind v. David Ballar, Warden, 16-1033

Petitioner Jonathan Lind was convicted in 2007 of second-degree murder, first-degree robbery, and three forgery counts; aggregate sentence 33 to 150 years.
Lind filed a first habeas petition in 2008; circuit court denied relief in 2009 and no appeal was filed from that denial.
Lind filed a second habeas petition in 2009–2010; an evidentiary hearing occurred in 2012 and the circuit court denied relief in 2014.
This Court’s Lind I memorandum decision (2015) affirmed the denial of relief in the second habeas proceeding and addressed the waiver/ineffective-assistance issues.
Lind then filed a third habeas petition on January 29, 2016 seeking ineffective assistance; the circuit court denied it without a hearing or counsel on October 26, 2016.
On appeal, the West Virginia Supreme Court applied res judicata under Losh and denied relief, affirming the circuit court’s October 20, 2016 order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the third habeas petition is barred by res judicata.	Lind argues omnibus hearing failures and waiver issues warrant relief.	Ballard argues Lind had a prior omnibus hearing and claims are adjudicated; res judicata applies.	Yes; res judicata bars the petition.
Whether the Losh waiver requirements were satisfied in prior proceedings.	Lind contends the Losh waiver notation and advisement were lacking.	Ballard argues the circuit court properly advised and documented waiver.	Waiver requirements were satisfied; issues barred.
Whether count two of the indictment was defective.	Lind argues insufficiency of the robbery indictment.	Ballard argues indictment met minimal constitutional standards.	Indictment structurally adequate and charge valid.
Whether Lind received ineffective assistance of counsel in the omnibus or habeas proceedings.	Lind asserts trial and habeas counsel failed to raise meritorious claims.	Ballard maintains Lind’s claims were resolved in Lind I and not reversible.	Precluded by prior adjudications; no new ineffective-assistance error established.
Whether appointment of appellate counsel was required or Martinez changed the governing law.	Lind cites Martinez v. Ryan as favorable change requiring counsel.	Martinez does not create a right to counsel in collateral review; no appointment required.	Martinez does not compel appointment; no error in denial.

Losh v. McKenzie, 166 W.Va. 762 (1981) (omnibuses and waiver requirements in habeas corpus proceedings)
Mathena v. Haines, 219 W.Va. 417 (2006) (three-prong standard for habeas review; deference to findings; review of law de novo)
State v. Miller, 197 W.Va. 588 (1996) (indictment sufficiency standards in WV practice; timely challenge required)
Perdue v. Coiner, 156 W.Va. 467 (1973) (habeas denial without hearing where no relief shown)
Hudson v. State, 157 W.Va. 939 (1974) (animus furandi element; standard for robbery indictment)