relief in regard to the Petitioner~s other grounds andfor ineffective assistance of counsel in the
first habeas tiled under 90-C-361.~' (Notice of Intent to Appeal at 2, Dec. 17,2007.) There is
no evidence in the record that Petitioner followed through with his intention to appeal the ruling
of the Court.
During the pendency of the review of data and DNA testing, I Petitioner filed, pro se> a , ,
fourth petition for writ of habeas corpus on November 5,2007. In the pro se petition, Petitioner
1 The testing was never done. Petitioner's counsel, Sally Collins, stated at the October 15,2010 omnibus hearing:
Your Honor, I was just checking with my client. I do recall at the last status hearing or scheduling conference you asked me about that or, no, I think it was a phone conference, and I .had told you that I had 'not gone ahead with the DNA testing and you had suggested that perhaps I should withdraw the motion. I am at this time withdrawing the motion. 1 wanted to make sure that my client ,Vas prcsent and agreed with that because that is giving up a right that we fought very hard for.
(Hr'gTr. 13,Oct. 15,2010.)
alleges that he is actually innocent because he was c,?nvicted of aiding and abetting an offense
that was later detennined (in Elwood Johnson's trial) to have not occurred. (Nov. 5,2007 Pet.
for Writ of Habeas Corpus 19-21.) He does not allege that Howard Higgins was ineffective for
not raising the issue in the first habeas petition. By order entered November 9, 2007, the Court
consolidated the fourth petition with the third petition in Cases No. 02-C-42 and 07-C-256.
An omnibus hearing was conducted on October 15,2010, in which most of the
testimony involved the usc off-red Zain's trial testimony. However, Petitioner's attorney Sally
Collins stated that there were loose ends relating to the ineffective assistance of fIrst habeas
counsel Howard Higgins:
MS. COLLINS: I have one other issue if I might address ~hat now.
In the May 11 th and 31 st, 2007, hearings, thai hearing was on ineffective ass.istance of counsel of prior habeas counsel. There were two prior habeas counsel. The one Sigwart, Tim Sigwart, for the Zain, and Howard Higgins, who was habeas counsel for the fIrst habeas filed in 1990. ,,' ... &" ••
On findings of fact and conclusions of law that were submitted back there about half of the points in the petitioner's proposed findings of fact and conclusions of law had to do with testimony and evidence that Howard Higgins . ad rendered ineffective assistance of counsel. And I have really read the opinion h letter very carefully and also the order, and I, of course, did the order directly from the opinion letter, and I don't see where the court ever ruled one way or the other on the issue .of whether Howard Higgins was ineffective as counsel in the 1990 original·habeas petition.
So I'm asking, I'm not submitting any new evidence on that at all, but if the court is going to do a comprehensive order that would sort of tie up loose ends so that this...
THE COURT: The court's intent was that it only ruled with respect to Attorney Sigwart, found Attorney Sigwart was inef.fective.
MS. COLLINS: Okay. I just needed a clarification on that. I just looked and there was nothing specific on that.
(Hr'g Tr. 52-53, Oct. 15,2010.)
6 . ..... '
After the Supreme Court remanded this case to the Circuit Court for findings of fact and
conclusions onaw on the claim of ineJfective assistance offlrst habeas counsel Higgins)
Petitioner, through counsel Melissa Giggenbach, filed a Motion for New Hearing to Submit
Additional Evidence Following Partial Remand and New Case Law on December 17,2012.
Petitioner Johnson filed apro se Motion to Reduce Sentence on January 7, 2013. This Court set
a hearing on both motions for January 25,2013. This Court held an evidentiary hearing on May
17,2013.
STANDARD OF REVIEW
West Virginia Code § 53-4A-l (1967) provides for post-conviction habeas corpus relief
for "[a]ny per~on ~onvicted of a crime and incarcerated under sentence of imprisonment
therefor who contends that there was such a denial or infringement ofhls rights as to render the conviction or sentence void und~rthe Constitution ofthe United States or the Constitution of
tins State, or both .... ~' \V. Va. Code Ann. § 53-4A-l (a) (Lexisl'!exis 2008). The contentions
and the grounds in fact or law must "have not been previously and finally adjudicated or waived
in the proceedings which resulted \n the conviction and sentence, or in a proceeding or
proceedings on a prior petition or petitions under the provisions of this article, or in any other
proceeding or proceedings which the petitioner has instituted to secure relief from such
conviction or sentence." Id.
The Supreme Court of Appeals has held that West Virginia Code § 53-4A-l et seq.;
"contemplates that every person convicted of a crime shall have a fair trial in the circuit court,
an opportunity to apply for an appeal to this Court, and one omnibus post-conviction habeas
corpus hearing at which he may raise any collateral issues which have not previously been ful1y
.,..:0. and fairly litigated." Lash v. lvfcKenzie, 166 W. Va. 762, 764,277 S.E.2d 606: 609 (1981) .
After the petitioner has been afforded an omnibus habeas corpus hearing, "subsequent habeas
corpus petitions will be summarily denied unless they addre~s o~e of the narrow exceptions."
166 W. Va. at 768,277 S.E.2d at 611. Among those narrow exceptions is "ineffective.
assistance of counsel at the omnibus habeas corpus hearing[.J" ld.
The law in West Virginia regarding ineffective assistance of counsel requires the
application of the two~pronged test as announced by the Supreme Court of the United States in
Strickland v. Washington, 466 U.S. 668 (1984) and by the State Supreme Court in State v. . . Miller, 194 W. Va 3, 15,459 S.E.2d 114,126 (1995).
Strickland requires the defendant to prove two things: (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) <'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." When assessing whether counsel's perfonnance was deficient, [a court] 4'must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.J" To. demonstrate prejudice, a defendant must pI;"ove there is a ureasonable probability" that, abserit the errors, the j"Qry would have reached a different result.
State v. .Miller, 194 W. Va. 3, 15,459 S.E.2d 114, 126 (1995) (internal citations emitted). The
}.liller Court, by Justice Cleckley, cautioned courts from judging counsel's performance through
hindsight, 194 W. Va. at 17,459 S.E.2d at 128, and instead ask "whether a reasonable la\vyer
would have acted, under the circumstances, as [habeas] counsel acted in the case at issue." 194
\V. Va. at 16, 459 S.E.2d at 127..
Finally, Rule 9(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings
in West Virginia states:
The Court shall draft a comprehensive order including: (l) findings as to. whether a state and/or federal right was presented in each ground raised in the· petition; (2) findings of fact and conclusions of law addressing each ground raised in the petition; (3) specific findings as to whether the petitioner was advised concerning his obligation to raise all grounds for post conviction relief in
8 one proceeding; and (4) if the petitioner appeared pro se, specific findings as to whether the petitioner kno\vingly and intelligently waived his right to counsel.
OPINION
Although Petitioner has tiled pro se petitions for writs of habeas corpus, he has been
represented by counsel at each stage in these proceedings. Therefore, at the outset, it is not
necessary to determine whether he knowingly and intelligently waived his right to counsel.
Further, Petitioner has been advised concerning his obligation to raise all grounds for post
conviction relief in one proceeding. On Jlme 10, 2002, the Court entered an Order Appointing
Counsel, in which the Public Defender Corporation was appointed to represent Petitioner in
Civil Action No. 02-C-42. On February 21", 2006, a Checklist of Grounds for Post Conviction
Habeas Corpus Relicf was entered into the court t1l~, which indicates that Petitioner J oMson
signed that he was advised by his attorney that he should raise each and every ground which he
felt may entitle him to habeas corpus relief. Further, Petitioner' ~ counsel, Sally Collins, signed
the checklist indicating she had eXf!.ID.ined the records, interviewed the P.etitioner, and Petitioner
desired to raise none of the grounds which he had initialed.
Petitioner al1cges the following grounds which he believes entitles him. to habeas corpus
relief resulting from the alleged ineffective assistance of JU'st habeas counsel Howard Higgins: 2
A. Issues with Grand Jury Procedures
"All prior counsel failed to properly raise the issues of challenges to the grand jury
procedures." (Am. Pet. at 12, Civil Action No. 02~C-42.) Petitioner alleges that his indictment
is void due to the prejudicial effect on the grand jury ofthe introduction of Zain~s test results
through Officer Stiles. (ld.) Petitioner also alleges that Officer Stiles's testimony was
2 Petitioner's use ofthc phrase "all prior counsel," "all counsel subsequent to his trial counsel," and "habeas counsel'l necessarily includes his first habeas counsel Higgins. Therefore, this Order addresses these claims even a though several regard "Z in" issues which have all been finally adjudicated on the merits.
9 '"
intentionally fraudulent. (Jd. 12-13.) Petitioner further al~eges that no evidence was introduced
to the grand jury supporting a charge of first degree sexual assault, i.e. that a weapon was used
or that the victim was 11 years old or less. (ld. at 13.)
To the extent that Petitioner alleges ineffective assistance of counsel based on the use of
Zain's test results by the prosecutor or Officer Stiles, the Court denies the peti tion because all
Zain issues were resolved in the Zain Habeas and further denied in the Court's Opinion Letter
dated December 10, 2010 (which was affirmed by the Supreme Court of Appeals of West
Virginia by Memorandum Decision; Nov. 20, 2012).
Petitioner alleges that no evidence was introduced that a weapon was l.1Sed or that the
victim was less than 11 years of age, therefore the evidence did not support the charge offirst
degree sexual assault. First, the first degree sexual assault statute in 1988 also included as an ~~:' . •·.···"100:...... element that the "infliction of bodily injury upon anyone" could raise the crime to that offirst C ... ~_ ' •• ".<.;
degree sex.ual assault. See W. Va. Code § 61-8B-3(a)(i) (1984) (current version at W. Va. Code
§ 61-8B-3 (2006)). Second, "[g]enerally speak:ing~ the finding by the grand jury that the
evidence is sufficient is not subject to judicial review." State v.Adams, 193 W. Va, 277,284,
456 S.E.2d 4, 11 (1995) (quoting I Franklin D. Cleckley, Handbook on West Virginia Criminal
Procedure Grand Jury and Indictments 1-651 (2d ed. 1993). "[A] defendant may not challenge
a facially valid indictment returned by a legally constituted grand jury on the basis that the
evidence presented to the grand jury was legally insufficient." State v. Adams, 193 W. Va. at
284, 456 S.E.2d at 11.
The 'Court finds that first habeas counsel Higgin.s was not ineffective under the iirst
prong of Strickland and Miller because Higgins performance was not deficient under an
objective standard of reasonableness. See jy'/iller, 194 W. Va. 3, 15,459 S.E.2d 114, 126
10 i.
(1995). Counsel's performance cannot be considered deficient because the indictment was not
reviewable in the first instance for sufficiency of the evidence in the grand jury proceeding.
B. Petitioner has not proven by a preponderance of the evidence that habeas counsel Higgins was ineffective for not raising that trial counsel was not prepared to cross~ examine the St.ate's expert witnesses.
Petitioner alleges that a[sJubsequcnt counsel in the Habeas and appeals" failed to raise
the issue that trial oounsel was not prepared to cross-examine the State's expert witnesses from
the State Police Laboratory. Petitioner alleges that scientific evidence was avruluble to refute
the reliability of hair comparison analysis. and trial counsel did not move for approval of expert
consultation or expert testimony of his own in regard to the scienti.fic test results. (Am. Pet. at
13.)
Petitioner has presented no evidence to substantiate his assertion that scientific ev~dence
was available. "One who charges on appeal that his triaJ counsel was ineffective and that such
resulted in his conviction(] must prove the allegation by a preppnderance of the e·vidence." Syl.
pt. 2, Carrico v. Griffith, 165 ·W. Va. 812,272 S.E.2d 235 (1980); syl. pt. 22, State v. Thomas,
157 W.Va. 64D. 203 S.E.2d 445 (1974). Because Petitioner has presented no evidence to this
Court beyond a bald conclusion that there was scientific evidence available, he has failed to
prove this allegation by a preponderance of the evjdence.
C. Habeas counsel Higgins was not ineffective for failing to raise the issue that Petitioner Johnson was convicted of aiding and abetting criminal acts for which his brother, the principal, was later acquitted. .
Petitioner Johnson alleges that "all counsel subsequent to his trial counsel failed to
. recognize and raise the issue that his convictions as aider and abettor to first degree sexual
.
assault were voided 'because ... the principal actorO was acquitted ofthe 0 charges of first
degree sexual assault." (Am. Pet. at 13.) On January 7, 2013, the Petitioner also filed a pro se
11 tt Motion to Reduce Sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal
Procedure. The pro se Motion was filed within 120 days ofthe mandate of the \Vest Virginia
Supreme Court affilming in part this Court's denial of habeas relief but remanding the case for
findings of fact and conclusions of law on first habeas counsel Howard Higgins. Procedurally,
a Rule 35(b) motion to reduce a sentence may only be used to reduce a sentence
within 120 days after the sentence is imposed or probation invoked, or within
120 days ~fter the entry of a mandate by the supreme court of appeals upon
affinnance of a judgment of a convktion or probation revocation or the entry of
or an order by the supreme court of appeals dismissirig rejecting a petition for
appeal of a judgment of a conviction or probation revocation.
\V. Va. R. Crim; P. 35(b). This Court cannot consider a reduction of sentence after an
unsuccessfi,U habeas corpus petition .. "A petitioner is not entitled to application of Rule 35(b)
base? upon an underlying unsuccessful attempt to obtain habeas corpus relief." Barritt v.
Painter, 215 W. Va. 120, 123,595 S.E.2d 62,65 (2004) (per curiam) (finding that the 1996
modification of Rule 35(b) eliminated its use after a denial of habeas corpus relief).
Although this Court fmds that Rule. 35(b) does not afford Petitioner relief in this
situation, the Court considers the underlying assertions regarding Petitioner's convictions as . . aider and abettor because he has asserted that first habeas counsel Higgins was ineffective for
failing to raise this ground.
The C~urt co~cludes that thi~ particular legal issue has be~n fully adjudicated on the merits in a prior petition and therefore is barred by tes judicata as detailed in Lash v. lYfcKenzi!
166 W. Va. 762, 277 S.E.2d 606 (1981).
A judgment denying relief in post-conviction habeas corpus is res judicata on questiom
of fact or law which have been fully and 11nally litigated and decided ...." Syl. pt. 2, Losh v.
lvJcKenzie, 166 W. Va 762, 277 S.E.2d 606 (1981). In Petitioner's first post-conviction habcz
·' I I
corpus proceeding, Civil Action No. 90~C-361, he questioned his conviction for aiding and . , u
abetting kidnapping for which his brother, the principal, was subsequently acquitted. Judge
Halbritter issued a written opinion detailing the legal reason why Petitioner's assertion fails as a
matter of law.
West Virginia Code §·61-2-14c provides that 'if any person in any way knowingly aid or abet any other person in the commission of any offense described ... § 61-2-14a ... of this article, either as accessory before or an accessory after the fact, such person so aiding ~d abetting sh~l1 be guilty as princip?i. i,n the commission of such offense ~d sb?ill be pup,ished in the same manner and to the same extent as i~ provided in said sections for the person who committed the olTense.' The statute does not reqUire that the principal be convicted before the aider and abettor can be convicted. .
(Feb. 20, 1997 Opinion in Civil Action No. 90-C-361, at 22.) Although Judge Halbritter
decided this particular legal issue as it regards to kidnapping, the same reasoning pertains to
Pctitir;mer's present argument that he cannot be an aider and abettor to first degree sexual assault
when. the principal is later acquitted.
An aider and abettor is a principal in the second degree, see State v. H[[rper~ 179 W. Va.
24,29, 365 S.E.2d 69, 74 (1987), and as such is punishable as if he was a principal in the first
degree. W. Va. Code § 61~11-6 (LexisNexis 2010). In order to sustain a conviction for aiding
and abetting the p'rincipal offense, the prosecution must prove ;"that there [was] a crime
committed and a principal in the first degree, and it must be shown that the person for whom
[the] accused was acting was connected with the offense." State v. Lola Mae C, 185 W. Va.
452,458,408 S.E.2d 31, 37 (1991).
In Lola Mae c., the defendant was indicted~ tried. and convicted oftwo counts offust degree sexual assault. 185 \V. Va., at 455, 408 S.E.2d at 34. Important to the issue this Court
must decide, the defendant in Lola Mae C. was indicted and tried separately from the principal.,
185 W. Va. at 37, n.] 2, 408 ~.E.2d at 37,11.12. The defendant appealed her conviction on the
13 f,'1'ound that the "state violated the purpose of having the father and stepmother separately
indicted and tried by placing into evidence matters relating to the father's guilt, in particular 14
to 15 prior sexual assaults ...." 185 W. Va. at 453,408 S.E.2d at 32.
The Court held that as part of the state's case-in-chief, "the state bore the obligation to
prove that the defendanfs husband did inde~d commit the sexual assault on the victim on the
occasion involving the defendant in ·order to prove that the defendant aided and abetted him."
185 W. Va. at 458, 408S.E.2d at 37. Thus the issue was "whether evidence of such collateral
acts by the father would have been admissible to prove his guilt on the occasion involving the
defendant." Ie.!.
The Court tinds Lola Mae C. instructive. The state, in order to secure a conviction for
aiding and abetting> must prove that the principal did indeed commit the crime. However, as
Lola .!vfae C. shows, the state inust do so at the trial of the principal in the second degree. · '. ..,'~.;, ..... ,. ObviouslY1 a principal in the first degree cannot be convicted in a trial in which he or she is not
a defendant. The state carries the burden of proving at the aider and abettor's trial that the
principal in the fIrst degree committed the act. The State carri.~d its burden in Petitioner's trial
of provIng that his brother committed the crime of fITst degree sexual assault as a principal in
the first deblTee. Any subsequent acquittal of the principal in the .fIrst degree in his own trial has
no bearing on the aider and abettor's conviction.
Petitioner. in his pro se Petition for Writ of Habeas Corpus in Civil Action No. 07-C
256, cites Shuttlesworth v. City ofBirmingham. 373 U.S. 262 (1963),Jor the proposition that
"[iJt is generally recognized that there can be no conviction for'aiding and abetting someone to
do an innocent act." (Nov. 5,2007 Pet. in Civil Action No. 07-C-2S6, at 20.) Petitioner also
cites United States v. Prince" 430 F.2d 1254 (4 th Cir. 1970), f~r the proposition that where the
,i r'
. '• •• 00
acquittal of the principle established the act constituting the offense was not committed, then the
conviction of the aider and abettor to that crime must be set aside. (Nov. 5, 2007 Pet. at 20.)
A close reading of Shuttlesworth shows it does not afford Petitioner relief. The
convictions as aiders and abettors were overturned because the underlying acts were not in
themselves criminal acts. The Court stated:
Petitioners were convicted for inciting. aiding, and abetting a violation of the city trespass ordinance. The trespass 'violation' was that committed by the petitioners in Gober v. City o/Birmingham, 373 U.S. 374 .... Since the convictions in Gober have been set aside, it follows that the present petitioners did not incite or aid and abet any crime, and that therefore their oyvn convictions must be set aside. It is generally recognized that there can be no conviction for aiding and abetting someone to do an innocent act.
Shuttienvorth, 373 U.S. 262, 265 (footnote omitted).
In Gobe~, the Court issued a very short written opinion: "The judgmen~ are reversed.
Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119." In Peterson v. City ofGreenville,
the Court found that a city ordinance. requiring the . segr~gation of African-Americans and
Caucasians at lunch counters and which was enforceable through. the state's criminal processes
was a deprivation of the equal protection ofthe law as required by the Fourteenth Amendment
to theDnited States Constitution. Peterson, 373 U.S~· 244,248 (1963). There was no violation
.of the city ordinance beca1.!se the city ordinance was unconstitutional.
. The Court finds that this is materially distinguishable from Peti-qoner's case. Petitioner
was convicted as an aider and abettor of a violation of a state law prohibiting a person from
employing a deadly weapon in the c0:rru:x?-ission of sexual assault. It is quintessential criminal
conduct. A conviction for aiding and ab~tting that criminal conduct does not violate either the
State Constitution or the Federal Constitution. TIle jury fOWld at Petitioner'S trial that the State
proved beyond a reasonable doubt that a crime was committed, Elwood Johnson committed it as
15 l . ..
the. principal, and William Mark Johnson aided and abetted that crime. Shuttlenvorth is not on
point.
Petitioner also cites United Slates v. Prince, 430 F.2d 1324 (4th Cir. 1970) (per curi~),
for the proposition that an acquittal of the principal requires the conviction of an aider and
abettor to be set aside. (Nov. 5,2007 Pet. at 20.) In Prince, the Fourth Circuit vacated a
conviction for aiding and abetting the takjng of a rail bird from a boat while a motor was
running in violation of federal law. Prince, 430 F.2d at 1325. While rus appeal was pending,
his companion, the alleged principal, was fOllild not guilty. Id. The Fourth Circuit concluded
that because there were only two people in the boat, the appellant could not have aided and
abetted any other person, therefore no crnne 'vvas committed. ld.
This Court finds Prince unpersuasive. First, Prince has been cited as a minority position
and has never been cited by any court in the Fourth Circuit in a published opinion. The holding
in Prince was criticized in a well-reasoned opinion from the Third Circuit, which represents the
majority position and is in accord with the West Virginia Supreme Court's reasoning in Lola
. Alae C. In United States v. Standefer, 610 F.2d 1076 (3 rd Crr. 1979), the 'Th.ifd Circuit, sitting
en bane. stated that although
[t]he superficial attractiveness of [the Prince] approach is readily apparent ... we [do not] believe that this rype of conundrum would be ?ll that unusual in cases where aiders and abettors are tried separately from the principals that committed the crime. It will surely come as no surprise that in many cases the proof available to the goyernrnent may vary depending on who is being .. prosecuted and when the prosecution .is brought. Evidence inadmissible against one defendant may often be used against another. For example, differing defense strategies may result in different rulings on admissibility under the Federal Rules of Evidence or ... different witnesses and different emphasis in testimony. Similarly, one defendant may lack standing to challenge the admissibility of evidence unconstitutionally obtained from a co-defendant, and therefore inadmissible against the co-defendant but admissible against him. And if there is a substantial time difference between the trials of the defendants, a key witness at the first trial may die or be missing at the time of the second trial) or
16 I'
considerably shorter [sentence] creating an inequity of sentences between codefendants." (Am.
Pet. at 13~14, Civil Action No. 02-C-42.) The Court finds that this is not an actual issue and
therefore first habeas counsel Higgins was not ineffective for noi addressjng it.
The statute prescribing the punishment of principals in the second degree at the time
Petitioner was sentenced stated "[i]n the case of every felony, every principal in the second
degree ... shall be punishable as ifhe were the principal in the fIrst degree[.]" \V. Va. Code §
61-11-6 ( 1923) (current version at w,. Va. Code § 61-11-6 (2009)). The punishment for sexual . .' . :
assault in the :first degree at the time Petitioner was convicted of aiding and abetting first degree
sexual assault was imprisonment "in the penitentiary not less than .fifteen nor more than twenty
five years, or fined not more than ten thousand dollars and imprisoned in the penitentiary not
less than fifteen nor more than twenty-five years." W. Va. Code § 61-8B-3 (1984) (current
verSlon at \V. Va. Code § 61-8B-3 (2006)).
First habeas counsel Higgins was not ineffective for not raising this because there is no
merit to Petitioner's assertion that he has received an inequitable sentence. The law in place at
the time of Petitioner's convictions clearly allowed for his punishment by consecutive flfteen to
twenty-five year sentences for each conviction. Petitioner William Mark J ohilSon was
senten~ed in a different court and ,by a different judge than Elwood Johnson. The sentencing'
judge had discretion to detennine the appropriate punishment. Accordingly, Petitioner's
assertions are without merit and the Court denies the requested relief on this ground.
E. Habeas counsel Higgins did address the statements made by prosecutor Hopkins.
Petitioner alleges that "[aJppellate and habeas counsel failed to fully address the issues , 1
of the prejudicial statements rq.ade by the trial proseyutor Hopkins in closing statements." (Am.
Pet. at 14, Civil Action No. 02-C-42.) The Court flnds that first habeas cOlmsel Higgins was not
18 .'
.' -::-. inetIective because he did raise this ground in the first habeas proceeding and Judge Halbritter
found it was not supported by the record and without merit. (feb. 20, 1997 Opinion at 13, Civil
Action No, 90-C-361.)
Judge Halbritter wrote that "[t]he petitioner also asserts that defense counsel failed to
object on many of the errors made by the Assist~t Prosecuting Attorney during the opening
and closing argument to the jury. The record does not support this assertion, The Court fmds
this assertion to be without merit." (ld.) Therefore, this Court finds that habeas counsel
Higgins did raise th~s ground and it has been fiilly and finally adjudicated on the merits. The
Court denies Petitioner relief on this ground.
F. Habeas counsel Higgins was not ineffective for fai~g to raise the ground that the same trial prosecutor was present when Lt. Zain testified differently at Elwo-od Johnson's ~~ ,
Th~ Court fmds that all Zain issues have been fully and fInally adjudicated on the merits
and a judgment was rendered denying relief: In its August 23, 1995 Opinion, the Circuit Court
of Preston County found that ··the remaining evidence after disregarding the evidence of Zain
was sufficient to support the conviction. The State's evidence in this case was very, very
strong." (Aug. 23, 1995 Opinion at 5~ Civil Action No. 93 NC·405.)
The Court fmds this judgment was appealed to the Supreme Court of Appeals of West
Virginia, which refused to hear it by Order dated July 15, 1998. On December 10,2010 (and·
reissued for purposes of appeal on January 7,2011), the Circuit Court of Preston County issued
an Order Denying Petition for Habeas Corpus as it pertained to all issues raised under Zain 1.
, (Dec. 10, 2010 Order Denying Pet. for Habeas Corpus at 14.) Assuming, arguendo, that habeas
counsel Higgjns was ineffective for not raising the issue asserted by Petitioner, this Court would
nevertheless flnd that he cannot prove by a preponderance of the evidence that it would have
, J
changed the outcome. 3 As this Court stated in the December 10, 2011 Order Denying Petition
for Habeas Corpus, it concurs i.¥ith Judge ·Halbritter's finding that "Zain's testimony did not
have a pre~udicial effect on the jury. The State's case was extremely.strong. l ' (Id. at 14-17.)
G. Habeas counsel Higgins was not ineffective for failing to raise the issue of the Court's denial of a continuance.
Peti tioner asserts that first habeas counsel Higgins was ineffective because he did not
address the Court's denial of a continuance because his trial attorney was not prepared to go
forward. (Am. Pet. at 17, Civil Action No. 02-C-42.) Petitioner asserts that the "denial of this
continuance request was extremely prejudicial to the client[.]" (ld.)
In Carrico v. Griffith, the appellant appealed a circuit court's denial of relief in habeas
corpus. The appellant asserted, inter alia, that he ~&.s denied a fair and impartial trial because
the trial court erred in refusing a continuance. Carrico v. Griffith, 165 W. Va. 812,821,272
S.E.2d 235,240 (1980). The Supreme Court of Appeals affmned the trial court's denial of
habe~ relief and stated that "[hJabeas corpus is not a substitute for appeal but ""'ill lie to test a
denial of a coilstitutional right. The matters relied upon are fair subjects for appeal, but not
habeas corpus." jd.
The Court finds Carrico v. Griffith directly on point. Here, Petitioner Johnson asserts
that his first habeas counsel was ineffective for failing to raise the trial court's denial of a
continuance. The Court finds that Petitioner's first habeas counsel is not ineffective because
this issue was not appropriate for habeas corpus. Accordingly, the Court finds that Petitioner's
assertion is without merit.
--------------~.------ . J The Cowi is not making a finding that attorney Higgins was ineffective.
20 ,,
H. Petiti{)ner's assertion that Higgins was ineffective for failure to raise the issue that trial counsej failed to convey all plea offers is without merit.
On December 17, 2012, Petitioner, through counsel, tiled a Motion for New Hearing to
Submit Additional Evidence Following Partial Remand and New Case Law: In that Motion,
Petitioner requested that he be allowed to present new evidence so the Court could determine
whether the principles announced in iviissouri v. Frye and Lafler v. Cooper were violated. The
Court, after a hearing on December 18,2012, granted the Motion and an evidentiary hearing
was held on May 17,2013. Petitioner Johnson appeared in person and by counsel Melissa
Giggenbach. The Warden appeared by Preston County Prosecuting Attorney Melvin C. Snyder
Ill.
In A1issouri v. Frye, the United States Supreme Court held that «as a general rule,
defense counsel has the duty to cOIIlI11unicate formal offers from the prosecution to ac~ept a
plea on terms and conditions that may be favorable to the accused." 132 S.Ct. 1399, 1408
(2012). Counsel's failure to convey a plea offer to a defendant "d[oes] not render the effective
assistance the Constitution requires." ld. . . Flye simply extends a protection under the Sixth Amendment of the COIfstitution of the
United States what Article III, § 14 ofthe Constitution of the State ofWest Virginia already
provides.
Objective professional standards dictate that a criminal defense attorney, absent extenuating circumstances, must communicate to the defendant any and all plea bargain offers made by the prosecution. The failure of defense counsel to communicate any and all plea bargain proposals to the defendant constitutes ineffective assistance of counsel, absent extenuating circumstances.
Syl. pt. 3, Becton v. Hun, 205 W. Va. 139,516 S.E.2d 762 (1999). The requirement that
defense counsel convey all plea offers to the accused to render effective assistan.ce has been the
law in West Virginia for over a decade before the United States Supreme Court decided Frye.
21 ,; .
In Lafler v. Cooper, the United States Supreme Court held the following: : '.
If a plea bargain has been afTered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown ifloss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a mme severe sentence.
Lajler v. Cooper, 132 S.Ct. 1376, 1387 (2012). In Lafler, the question presented to the Court
was not whether the advice given was ineffective. Trial counsel in that case advised the
defendant to not accept the plea offer because counsel believed the state could not prove the
intent clement of first degree murder because the defendant shot the victim below the waist.
Both parties in the appeal to the Supreme Court concec;ied this advice was ineffective. lei. at
1383.
In Petitioner's case, this Court must decide whether habeas counsel Higgins was
ineffective for failing to raise the issue that trial counsel did not convey all proposed plea offers,
and under Lafler, whether trial counsel's advice rendered ineffective assistance of counsel. In
the first instance regarding possible issues under Missouri v. Frye and Becton v. Hun, the
Circuit Court of Preston COlmty found in Civil Action No. 90-C-361 that
defense counsel informed the petitioner of the state's proposed plea offer and that defense counsel discussed with the petitioner that the state would have a different view of any possible plea offer if the victim was interviewed. After the discussion, the petitioner told counsel to go ahead and interview the victim.
(Feb. 20, 1997 Opinion at 10, Civil Action No. 90~C-361.) Accordingly, any assertion that trial
counsel failed to convey this proposed plea offer,has been fully and finally adjudicated and is
barred by the principles of res judicata.
R~garding the second plea offer, Petitioner Johnson testified: "1 don't remember him
talking with me about it. But, evidently he did, because I signed a Motion to Withdraw that he
had filed." (H!'g Tr. 35, May 17,2013.) Accordingly, Petitioner has not shown by a
22 I I \"1 '. ,
preponderance of the evidence that the plea offer was not conveyed. His testimony
dcmons1:rates that he cannot remember.
As to the potential Lafler issue, Petitioner must prove the allegations contained in his
petition by a preponderance ofthe.evidence. At the May 17,2013 hearing in which Petitioner
was afforded the opportunity to place new evidence in the record, trial counsel David Brown
testified that he knew he would have discussed the flrst plea offer with Petitioner and that he left
the decision to Petitioner. 4 Trial counsel Brovvn speci1:ically stated, "I don't believe he decided
it the same day. He let me Imow later that he wanted me to go ahead and proceed to interview
the child."s (Hr'g Tr. 18, May 17,2013.)
TIus Court finds that Petitioner has failed to meet his burden ofproving by a
preponderance of the evidence that he received ineffective assistance of counsel in considering t}~·:}~·.
r;.:: ..>.~:.' whether to take either plea offer. He testified at the May 17,2013 hearing that trial counsel told
him that if he did not take the flrst plea offer, then they were going to court and he was going to
get life and 300 years. (Hr'g Tr. 35, May 17,2013.) After going to trial and being convicted of
multiple charges, Petitioner Johnson received what is essentially a life sentence. Thus,
Petitioner's ovm testimony reflects that trial counsel's advice was accurate. Lafler does not
afford Petitioner relief for advice be received on the first plea offer.
Petitioner has further failed to prove by a preponderance of the evidence the advice he
received regarding the second plea offer was constitutionally ineffective. Petitioner testified he
~ Rule 1.2(a) ofthe West Virginia Rules of Professional Conduct places the decision ofwhether to accept a plea squarely with the client. . j The first plea agreement required the Petitioner to plead guilty to one count of s~cond-degree sexual assault and
was contingent upon Petitioner not interviewing the alleged victim. Trial counsel Brown testified that he believed tbat type of plea c'ffer, which "essentially told us we shouldn't investigate further," was an unethical type ofplea bargain. (Hr'g Tr. 26, May 17,2013.) He filed a Motion to Withdraw as counsel because he "wanted to make sure it was presef"ted on the reco!d for anyone who wanted to appeal it, in case he was convicted: ..." ([d.) Becau~e a defendant is not entitled to a plea offer as a matter of right, see Missouriv. Frye, 132 S.Ct. 1399, 1410 (2012), this Court is not addressing the ethical questions raised by the plea offer.
23 '. I I
could not remember the conveyance of the second plea offer but it must have occurred.
Accordingly, Petitioner has failed to prove that the specific advice was ine±l'ective. La:fler does
not afford Petitioner relief for advice he received on the second plea offer.
CONCLUSION
For the reasons detailed in this Order, the Court does hereby
ORDER that the relief requested by Petitioner in his petitions for writ of habeas corpus
is denied. It is further
ORDERED that the Clerk of the Court personally deliver or deliver via first-class mail
a certified copy of this Order to Prosecuting Attorney Melvin C. Snyde:t; III; to Melissa
Giggenbach, counsel for Petitioner; and to Petitioner \Villiarn Mark Johnson.
ENTER this 7 day ofAugust, 2013. ,..~ ;";':'=' :,.: .....:'
Lawrance S. iJIer, Jr., JUDGE
ENTERED this L day of August. 2013.
Betsy C!istle\ CLERK ; .... .-;
/il:;.u e;t ,'
1/-'-11 , ,/f.;ULl ?4£...-J/!..'.;? .'(( ::./. . " ."', v'
A. THUE COPY: