Stanley M. v. Patrick A. Mirandy, Warden, 16-0978

Background

Stanley M. was indicted (2008) on multiple sex-related offenses; after plea and trial he was convicted of two counts of first-degree sexual abuse and one count of first-degree sexual assault; direct appeal was refused by this Court (May 5, 2010).
Petitioner filed a first habeas petition (Oct. 7, 2010) raising many claims (pretrial publicity, prosecutorial suppression, perjured testimony, ineffective assistance, evidentiary errors, excessiveness/sufficiency of sentence, etc.); petitioner waived numerous other grounds on the Losh checklist (e.g., competency, double jeopardy, defects in indictment, jury instructions).
The circuit court held an omnibus hearing and denied the first habeas petition (Oct. 31, 2012); petitioner did not appeal that denial.
Petitioner filed a second habeas petition (Nov. 19, 2013) alleging ineffective assistance of habeas counsel (including failure to file an appeal of the first habeas denial) and excessive sentence; petitioner was allowed to file a pro se supplemental brief but did not do so.
After an omnibus hearing (Apr. 13, 2015), the circuit court denied the second petition (Aug. 9, 2016), finding res judicata and waiver barred relitigation of most claims and rejecting the ineffective-assistance claim for failure to prove deficient performance or prejudice.
Petitioner appealed; the West Virginia Supreme Court affirmed, holding petitioner failed to identify specific appellate grounds that counsel should have raised or to show prejudice, and that the long-established rules on waiver and res judicata foreclosed relitigation of previously waived or litigated claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether habeas counsel’s failure to file an appeal of the denial of the first habeas petition was ineffective assistance	Stanley contends counsel’s failure to appeal was objectively unreasonable and, but for that failure, the appeal would have succeeded	Warden argues petitioner adduced no evidence of specific appealable issues or how any outcome would differ; counsel reasonably concluded no legitimate appeal existed	Court held petitioner failed to show deficient performance or prejudice under Strickland; claim denied
Whether alleged ineffective assistance in failing to appeal invalidates waivers made in the first habeas proceeding	Stanley argues counsel’s appellate omission so permeated representation that prior waivers were not knowing/valid	Warden contends petitioner points to no other deficiencies and thus cannot show the waivers were involuntary or that relief would differ	Court held petitioner did not identify other counsel failings or prejudice; waivers and prior omnibus hearing operate as res judicata
Whether relitigated or waived claims in the second petition are barred by res judicata/waiver	Stanley argues ineffective assistance excused relitigation	Warden asserts statutory and case-law bar to multiple habeas proceedings and to raising waived/previously-known claims	Court held long-standing rules (statute and Losh/Gibson precedent) bar relitigation; dismissal affirmed
Whether the circuit court abused discretion in denying the second petition	Stanley alleges procedural and substantive errors flowing from counsel’s conduct	Warden defends court’s factual findings and legal conclusions	Court found no abuse of discretion; findings not clearly erroneous and legal conclusions reviewed de novo were correct

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance: deficient performance and prejudice)
Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006) (standard of review for habeas appeals)
State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009) (procedural standards for appellate review)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (application of Strickland in West Virginia; counsel-performance review guidance)
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (Losh checklist and waiver/res judicata principles in omnibus habeas hearings)
Gibson v. Dale, 173 W.Va. 681, 319 S.E.2d 806 (1984) (post-conviction habeas statute contemplates one omnibus proceeding; known claims must be raised)
State v. Myers, 229 W.Va. 238, 728 S.E.2d 122 (2012) (appellate burden to show error; skeletal argument doctrine)