Roger S. v. Marvin Plumley, Warden, 16-0305

Petitioner Roger S. was indicted in 2001 on multiple sexual-offense counts involving his then-12-year-old stepdaughter; he accepted a plea to one count of second-degree sexual assault and one count of incest and received 15–40 years.
Petitioner moved to suppress a tape-recorded statement before plea; the suppression motion was denied and the plea agreement followed.
Petitioner filed earlier habeas proceedings (Civil Action No. 06-P-10). At an omnibus hearing, his habeas counsel presented petitioner, trial counsel, and an expert on the tape-recording; the circuit court denied relief in an April 7, 2011 order, which this Court later affirmed in a memorandum decision.
In March 2016 petitioner filed a successive habeas petition asserting previously litigated claims and alleging ineffective assistance by his prior habeas counsel (failure to investigate and to prove pleas were involuntary).
The circuit court dismissed the 2016 petition as barred by res judicata for successive habeas petitions under syllabus point 4 of Losh v. McKenzie, treating the claims as reassertions of prior issues repackaged as ineffective assistance of habeas counsel.
The Supreme Court of Appeals affirmed, finding the record adequate to resolve the ineffective-assistance allegations and concluding petitioner’s habeas counsel did not perform deficiently; no hearing or appointment of counsel was required.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether successive habeas petition barred by res judicata/Losh	Roger S. argued new ineffective-assistance allegations warranted relief and avoided res judicata	Warden Plumley argued claims merely reassert prior issues; Losh bars successive petitions except certain narrow claims	Court held Losh bar applies; petition reasserted prior matters and was barred
Whether habeas counsel failed to investigate (retain expert)	Roger S. contended habeas counsel did not investigate his case adequately	Plumley showed counsel had an expert testify at omnibus hearing, indicating investigation	Court held counsel investigated sufficiently; performance not deficient
Whether habeas counsel failed to prove guilty pleas involuntary	Roger S. argued counsel failed to convince court pleas were not knowingly/voluntarily entered	Plumley noted record and April 7, 2011 findings show petitioner authorized negotiations and entered pleas knowingly	Court held counsel did raise voluntariness and denial of claim does not prove deficient performance
Whether denial without hearing or appointment of counsel was improper	Roger S. sought a hearing and counsel based on his allegations	Plumley argued record was sufficient to resolve allegations and no hearing/counsel appointment required	Court held circuit court did not abuse discretion in denying hearing or appointing counsel

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