Losh v. McKenzie

• Decision Date: 05 May 1981
• Docket Number: No. 14174,14174
• Citation: 277 S.E.2d 606,166 W.Va. 762
• Parties: Russell D. LOSH v. Arthur L. McKENZIE, Warden, West Virginia Penitentiary. Case
• Court: West Virginia Supreme Court

Page 606

277 S.E.2d 606

166 W.Va. 762

Russell D. LOSH v. Arthur L. McKENZIE, Warden, West Virginia Penitentiary.

Case No. 14174.

Supreme Court of Appeals of West Virginia.

May 5, 1981.

Syllabus by the Court

1. An omnibus habeas corpus hearing as contemplated in W.Va.Code, 53-4A-1 et seq. (1967) occurs when: (1) an applicant for habeas corpus is represented by counsel or appears pro se having knowingly and intelligently waived his right to counsel; (2) the trial court inquires into all the standard grounds for habeas corpus relief; (3) a knowing and intelligent waiver of those grounds not asserted is made by the applicant upon advice of counsel unless he knowingly and intelligently waived his right to counsel; and, (4) the trial court drafts a comprehensive order including the findings on the merits of the issues addressed and a notation that the defendant was advised concerning his obligation to raise all grounds for post-conviction relief in one proceeding.

2. A judgment denying relief in post-conviction habeas corpus is res judicata on questions of fact or law which have been fully and finally litigated and decided, and as to issues which with reasonable diligence should have been known but were not raised, and this occurs where there has been an omnibus habeas corpus hearing at which the applicant for habeas corpus was represented by counsel or appeared pro se having knowingly and intelligently waived his right to counsel.

3. A waiver of a constitutional right must be knowing and intelligent, that is a voluntary relinquishment of a known right, and if the waiver is conclusively demonstrated on the record at trial or at a subsequent omnibus habeas corpus hearing, the waiver makes any issue concerning the right waived res judicata in succeeding actions in habeas corpus.

4. A prior omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known; however, an applicant may still petition the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing; newly discovered evidence; or, a change in the law, favorable to the applicant, which may be applied retroactively.

Larry N. Sullivan, Parkersburg, for petitioner.

Chauncey H. Browning, Jr., Atty. Gen., Michael G. Clagett, Asst. Atty. Gen., Charleston, for defendant.

NEELY, Justice:

This case squarely presents an issue which was touched upon tangentially in Call v. McKenzie, W.Va., 220 S.E.2d 665 (1975), namely the extent to which principles of res judicata apply in post-conviction habeas corpus proceedings. Appellant, Russell D. Losh, appeals a summary dismissal of his petition for a writ of habeas corpus because the court failed to provide for a full evidentiary hearing.

The appellant was convicted of first-degree murder upon a guilty plea in the Circuit Court of Calhoun County on 19 May 1975 and was sentenced to life imprisonment without mercy. In his amended petition for habeas corpus relief the appellant alleged that:

1. He was denied a psychiatric hearing to determine whether he was competent to stand trial and whether he was sane at the time he committed the acts alleged in the indictment against him.

2. He was denied equal protection and due process in that the court failed to follow a plea bargain agreement the bargain allegedly being that the appellant would, upon a plea of guilty, receive a sentence of life with mercy.

3. He was denied due process and equal protection because incriminating statements were taken from him and used in the proceedings against him without his having knowingly waived his right against self-incrimination; also, the indictment was void in that the primary evidence against him consisted principally of the statements illegally obtained.

4. He had not knowingly and intelligently waived right to trial by entering the guilty plea.

5. He did not know and understand the consequences of his act in entering the guilty plea therefore, the plea and sentence were void.

6. He was denied effective assistance of counsel.

By order of 8 July 1977 Judge George M. Scott of the Circuit Court of Calhoun County concluded that grounds 1 and 6 were waived by the appellant when he failed to assert those grounds in prior pro se habeas corpus petitions and that grounds 3 and 5 were waived by his entry of a plea of guilty. The appellant argues that all of his previous petitions for habeas corpus were filed by him without the assistance of counsel and, contrary to the holding of the trial court, he did not knowingly waive his right to any grounds which were not asserted. We agree and remand the case for a full evidentiary hearing.

Obviously the petitioner has alleged some claims which, if proven, would entitle him to relief. The allegation that he was denied effective assistance of counsel was unlikely to have been raised at the trial or appellate stage. Furthermore, while the issue of whether petitioner had a valid plea bargain which was not kept could have been developed when petitioner was sentenced or on appeal, it would not have been developed if counsel were ineffective. Both of these contentions are, therefore, classic collateral issues.

I

In general, the post-conviction habeas corpus statute, W.Va.Code, 53-4A-1 et seq. (1967) 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 fully and fairly litigated.

What constitutes full and fair litigation of an issue? Frequently habeas corpus petitioners seek collateral review of evidentiary or constitutional questions, such as the admissibility of a confession or failure to exclude physical evidence, when those issues were fully and fairly litigated during the trial and a record of the proceedings is available. In that event a court may apply rules of res judicata in habeas corpus because the issue has actually been fully litigated. Call v. McKenzie, supra.

There are other issues, however, such as incompetency of counsel, a coerced guilty plea, an unkept plea bargain, and sanity at the time the guilty plea was entered which will not have been raised or litigated in the underlying proceeding. Incarceration presents a substantial opportunity for education in the criminal law, and a person who has actually received ineffective assistance of counsel may discover that fact only upon consultation with some of our better inmate practitioners. While we have held in Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972) that the burden of proof rests on the petitioner to rebut the presumption that he intelligently and knowingly waived any contention or ground for relief which he could have advanced upon direct appeal, when the petitioner makes a prima facie case that he was denied a fair trial or his constitutional rights, the circuit court is obligated at some point to afford him an opportunity to offer proof to meet the burden of Ford, supra.

The word "waiver" is susceptible to numerous meanings and in the context of a post-conviction proceeding it is important to distinguish whether we are referring to a knowing and intelligent forbearance from the assertion of known rights or whether we are referring to an artificial procedural rule concerning the finality of judgments. In drafting the provision covering waiver, W.Va.Code, 53-4A-1(c) (1967), ¹ the Legislature clearly intended that the concept of waiver was not to be interpreted in a strict, artificial, procedural sense. The Legislature selected the phrase "intelligently and knowingly," language borrowed from federal constitutional law. ²

Rules of finality which prevent consideration of the merits of a post-conviction claim should be applied with caution. Furthermore, it is more reasonable to apply some of the artificial rules concerning the finality of judgments when the petitioner has been represented by competent counsel familiar with artificial rules, than when the petitioner appears pro se since he is unfamiliar with those rules. While we do not believe that a prisoner is entitled to habeas corpus upon habeas corpus, Call v. McKenzie, supra, we will not invoke res judicata principles until the prisoner has had a full and fair opportunity with the assistance of counsel to litigate all issues at some stage of the proceedings. Those issues, such as incompetency of counsel, of which he would have been unaware at trial, must be litigated in a collateral proceeding.

There appears to be some confusion in this jurisdiction regarding the proper interpretation of Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972) where we held in syl. pt. 1:

"Under the provisions of Chapter 53, Art. 4A, Code of West Virginia, 1931, as amended, commonly known as 'post-conviction habeas corpus,' there is a rebuttable presumption that petitioner intelligently and knowingly waived any contention or ground in fact or law relied on in support of his petition for habeas corpus which he could have advanced on direct appeal but which he failed to so advance."

This merely returns us to the question of whether issues were known or with diligence could have been known to the prisoner so that they could have been fully and fairly litigated in a previous proceeding. This question must always be answered in light of all of the surrounding facts and circumstances.

The difficulty with the case before us is that the petitioner never had appointed counsel in his post-conviction efforts to help him to amend his pro se petition and advise him about the problems of waiver. Furthermore there was never an omnibus hearing at which Judge Scott could inquire into his assertions concerning ineffective assistance, a coerced plea, or an unkept plea bargain, none of which would necessarily have been litigated or...