David W. v. Donnie Ames

Summary

The Supreme Court of Appeals of West Virginia affirmed the dismissal of David W.’s fourth petition for a writ of habeas corpus. The court held that the petition was an impermissible successive petition barred by res judicata under Losh v. McKenzie, because the grand jury transcript had been disclosed and litigated in the prior habeas proceeding and the asserted claims did not establish ineffective assistance of habeas counsel. The court also concluded that any procedural error concerning a post-dismissal judicial-disqualification motion was harmless.

Holdings

1. The fourth habeas petition was an impermissible successive petition barred by the doctrine of res judicata because the indictment-related claims had been raised or could have been raised in the prior habeas proceeding.
2. The grand jury transcript was not newly discovered evidence because it had been disclosed to petitioner during the third habeas proceeding and petitioner relied on it in that proceeding.
3. Petitioner's allegations did not establish ineffective assistance of habeas counsel because he had no counsel in the second proceeding and, as to the third proceeding, challenged the circuit court's denial of a motion to amend rather than counsel's deficient performance.
4. Any failure to follow the procedure for transmitting the untimely judicial-disqualification motion was harmless.

Questions Presented

1. Whether the fourth habeas petition was an impermissible successive petition barred by res judicata under Syllabus Point 4 of Losh v. McKenzie.
2. Whether the grand jury transcript qualified as newly discovered evidence permitting a successive habeas petition.
3. Whether petitioner's allegations concerning the second and third habeas proceedings stated claims for ineffective assistance of habeas counsel.
4. Whether any failure to follow the procedure for transmitting petitioner's post-dismissal judicial-disqualification motion constituted reversible error.

Disposition

affirmed