Joseph Eugene Howard. v. David Ballard, Warden, 15-1180

Joseph Eugene Howard was convicted by jury of burglary and grand larceny; after a recidivist information he was convicted as a habitual criminal and sentenced to life for the recidivist conviction.
Howard appealed his convictions; the appeals were refused by this Court in January 2005.
Howard filed a first habeas petition and received an omnibus hearing on January 3, 2008; the circuit court found he knowingly and intelligently waived counsel, was advised to raise all claims in one proceeding, and expressly withdrew a juror-bias claim at that hearing.
Howard filed a second habeas petition on July 18, 2014, raising only the juror-bias claim (that a juror in the recidivist trial was related to the victim).
The circuit court denied the second petition on November 2, 2015, concluding the juror-bias issue was waived/res judicata under Losh because it had been withdrawn at the 2008 omnibus hearing; Howard’s motion to alter or amend was denied November 20, 2015.
This appeal challenges both denials; the Supreme Court of Appeals affirmed, finding no clear error or abuse of discretion.

Issue	Howard's Argument	Ballard's Argument	Held
Whether the juror‑bias claim in the 2014 habeas petition is barred as waived/res judicata	Howard: He was intellectually “slow” and did not knowingly and intelligently waive the juror issue in 2008, so it should be considered now	Ballard: Under Losh, issues known or reasonably discoverable and not raised at an omnibus hearing (or expressly withdrawn after proper advisal) are barred	The court held the claim is barred: the record shows Howard knowingly waived counsel, was advised to raise all claims, and expressly withdrew the juror claim in 2008, so Losh applies

Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (post‑conviction issues not raised at an omnibus hearing where applicant was represented or knowingly waived counsel are res judicata)
Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006) (standard of review for habeas appeals: abuse of discretion for disposition, clearly erroneous for facts, de novo for law)
Stanley v. Dale, 171 W.Va. 192, 298 S.E.2d 225 (1982) (habeas petitioner bears burden to prove allegations by a preponderance of the evidence)