Enforceability of Waiver and Res Judicata in Successive Habeas Corpus Petitions and Limits of Ineffective Assistance of Habeas Counsel

Introduction

This commentary examines the Supreme Court of Appeals of West Virginia’s decision in Martez Griffin v. Shelby Searls, Superintendent (No. 23-412, April 22, 2025). The petitioner, Martez Griffin, was convicted by plea agreement of first-degree robbery (with felony murder dismissed) and sentenced to sixty years’ imprisonment. After unsuccessful direct appeal (Griffin I) and a first habeas corpus petition (Griffin II), Griffin filed a second habeas petition alleging that his first habeas counsel provided ineffective assistance by failing to raise or preserve various claims. The circuit court denied relief, and the Supreme Court affirmed. The key issues are: (1) the applicability of waiver and res judicata to successive habeas petitions, and (2) the standards for evaluating ineffective assistance of habeas counsel.

Summary of the Judgment

The Supreme Court affirmed the circuit court’s order denying the second habeas corpus petition. It held that:

• Griffin knowingly and intelligently waived unraised claims in his first omnibus habeas hearing under the Losh procedure;
• Res judicata and waiver precluded relitigation of those claims, even under the guise of ineffective assistance of habeas counsel;
• The petitioner failed to demonstrate that habeas counsel’s performance was deficient or that he suffered prejudice from the alleged omissions;
• The standard of review—abuse of discretion for the circuit court’s order, clear error for factual findings, and de novo for legal questions—resulted in no reversible error.

Analysis

Precedents Cited

• Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981): Established the “Losh list” procedure requiring habeas counsel to discuss and document a menu of potential grounds for relief in an omnibus hearing.
• State v. Griffin (“Griffin I”), No. 16-0594, 2017 WL 2492799 (W. Va. June 9, 2017): Affirmed petitioner’s direct appeal of sentence and rejected claims of disproportionate sentence and trial counsel ineffectiveness.
• Griffin v. Williams (“Griffin II”), No. 19-0688, 2021 WL 659528 (W. Va. Feb. 19, 2021): Affirmed denial of the first habeas corpus petition on grounds of waiver and failure to prove trial counsel was ineffective.
• Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006): Clarified standards of review on habeas appeal—abuse of discretion, clear error, and de novo review of legal questions.
• Dement v. Pszczolkowski, 245 W. Va. 564, 859 S.E.2d 732 (2021): Restated the appellant’s burden to show error below.
• Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973): Emphasized presumption of correctness for trial court proceedings.

Legal Reasoning

The Court began by reinforcing that a habeas petitioner must identify specific grounds for relief in the initial omnibus hearing and that any ground not raised, with narrow exceptions, is waived for subsequent collateral proceedings. The “Losh list” ensures that counsel and client methodically consider each potential claim. Once Griffin affirmed at the hearing that unraised issues were waived, he could not relitigate them in a second petition—even when claiming habeas counsel’s ineffectiveness.

Applying the two-pronged test for ineffective assistance (analogous to Strickland: deficient performance and prejudice), the Court found no evidence that Ms. Kavitz’s strategic decisions fell below objective standards or that omitted claims would have succeeded. The circuit court’s factual findings (e.g., multiple meetings, “game plan” discussions) were not clearly erroneous, and the legal conclusions (waiver, res judicata) were sound under de novo review.

Impact

This decision underscores the finality of waiver and res judicata doctrines in post-conviction practice. Petitioners cannot evade procedural bars by asserting ineffective assistance of habeas counsel unless they can demonstrate both counsel’s deficient performance and a reasonable probability of a different outcome. The ruling will guide practitioners to:

• Meticulously document Losh-list discussions and client understanding at the first omnibus hearing;
• Recognize that strategic omissions, if reasonable, are not subject to collateral attack in successive petitions;
• Prepare for the heightened burden of showing prejudice when challenging habeas counsel’s performance.

Complex Concepts Simplified

• Losh List: A checklist of common habeas grounds counsel must review with the petitioner to ensure informed waiver or preserve claims.
• Waiver: The intentional relinquishment of a known right; unraised claims at an omnibus hearing are deemed waived.
• Res Judicata: A doctrine barring relitigation of claims already decided on their merits in earlier proceedings.
• Ineffective Assistance of Habeas Counsel: A collateral-attack version of Strickland v. Washington applied to post-conviction counsel; requires showing deficient performance and resulting prejudice.
• Standard of Review: Abuse of discretion for discretionary rulings, clear error for factual findings, and de novo review for legal questions.

Conclusion

The Supreme Court’s memorandum decision in Griffin v. Searls reinforces that once a habeas petitioner knowingly waives claims after a thorough Losh-list discussion, those claims are foreclosed by waiver and res judicata in any subsequent petition. Moreover, strategic choices by habeas counsel—even if successfully challenged—must meet the stringent two-pronged test of deficient performance and prejudice. This ruling affirms procedural safeguards in habeas practice, promotes certainty in post-conviction proceedings, and delineates clear boundaries for successive collateral attacks.