                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Daniel J., Petitioner Below,                                                         FILED
Petitioner                                                                         January 17, 2014
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 13-0329 (Kanawha County 12-MISC-143)                                      OF WEST VIRGINIA


David Ballard, Warden, Mount Olive
Correctional Complex, Respondent Below,
Respondent


                                 MEMORANDUM DECISION

        Petitioner Daniel J., by counsel L. Thompson Price, appeals the Circuit Court of Kanawha
County’s March 5, 2013, order denying his petition for writ of habeas corpus.1 Respondent David
Ballard, by counsel Christopher S. Dodrill, filed a response. On appeal, petitioner alleges that the
circuit court erred in denying his petition for writ of habeas corpus because he received
ineffective assistance of counsel in his underlying criminal proceedings.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Following a jury trial in July of 2010, petitioner was convicted of one count of first degree
sexual abuse and one count of sexual abuse by a parent, guardian, or custodian. The convictions
resulted from petitioner having a four-year-old girl he was babysitting touch his penis while he
masturbated. Prior to trial, petitioner rejected a plea offer. In August of 2010 the circuit court
sentenced petitioner to a term of incarceration of five to twenty-five years for first degree sexual
abuse and a term of incarceration of ten to twenty years of incarceration for sexual abuse by a
parent, guardian, or custodian. Additionally, the circuit court ordered petitioner to undergo forty
years of supervised release following incarceration. Petitioner appealed his conviction to this
Court, which affirmed the same.2
       1
         In keeping with the Court’s policy of protecting the identities of minors and the victims
of sexual crimes, petitioner will be referred to by his last initial throughout this memorandum
decision.
       2
         State v. Daniel [J.], No. 101633 (W.Va. Supreme Court, June 24, 2011)(memorandum
decision).

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        Thereafter, petitioner filed a petition for writ of habeas corpus in the circuit court. The
circuit court then held an omnibus evidentiary hearing in support of the petition and heard
testimony from petitioner and his trial counsel. By order entered on March 5, 2013, the circuit
court denied the petition. It is from this order that petitioner appeals.

       We have previously held that

       “In reviewing challenges to the findings and conclusions of the circuit court in a
       habeas corpus action, we apply a three-prong standard of review. We review the
       final order and the ultimate disposition under an abuse of discretion standard; the
       underlying factual findings under a clearly erroneous standard; and questions of
       law are subject to a de novo review.” Syl. pt. 1, Mathena v. Haines, 219 W.Va.
       417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Thompson v. Ballard, 229 W.Va. 263, 728 S.E.2d 147 (2012). Upon our
review, we find no error in the circuit court’s denial of the petition for writ of habeas corpus. On
appeal, petitioner raises only one assignment of error, arguing that the circuit court erred in
finding that his trial counsel’s representation was not ineffective.3 In support, petitioner alleges
that his trial counsel failed to adequately investigate the case, failed to consult with him, and
failed to adequately advise him. We have previously held that

       “[i]n the West Virginia courts, claims of ineffective assistance of counsel are to be
       governed by the two-pronged test established in Strickland v. Washington, 466
       U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(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.” Syl. Pt. 5, State v. Miller, 194 W.Va. 3,
       459 S.E.2d 114 (1995).

Syl. Pt. 1, State v. Frye, 221 W.Va. 154, 650 S.E.2d 574 (2006). Based upon this standard, the
Court finds no error in the circuit court denying petitioner habeas corpus relief because the record
shows that petitioner’s trial counsel effectively represented him.

        In denying petitioner relief, the circuit court noted that petitioner’s trial counsel hired a
private investigator to perform an investigation into the matter, which included visiting the crime
scene, taking photographs to illustrate petitioner’s version of events, and interviewing petitioner’s
step-father. While petitioner alleges that trial counsel’s failure to interview his wife and sister-in­
law, two State’s witnesses, constituted inadequate investigation, counsel testified that he

       3
         In the circuit court habeas corpus proceeding, petitioner raised an additional ground for
relief. However, in his petition for appeal, petitioner explicitly states that, on appeal, he is
challenging only the denial of habeas relief on the ground of ineffective assistance of counsel. As
such, this memorandum decision addresses only petitioner’s allegation of ineffective assistance of
counsel.
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specifically chose not to conduct such interviews because the parents of a child who is the victim
of sexual abuse are not normally cooperative and that the witnesses would not benefit petitioner’s
defense. Further, counsel testified to his attempts to exclude the testimony of the State’s forensic
interviewer of the child victim, including extensive research and motions in support of exclusion.
Based upon this testimony, the circuit court concluded that “[counsel’s] investigation and
preparation in [the] matter was more than adequate.”

         As to petitioner’s allegation that counsel failed to consult with him in order to prepare for
trial, the circuit court heard testimony from counsel that directly contradicted petitioner’s
allegations about a lack of consultation. Specifically, the circuit court heard testimony that
counsel spoke on the phone with petitioner on multiple occasions, and that he always arrived to
hearings early so that he would have time to communicate with petitioner. Additionally, counsel
testified that petitioner was on home incarceration prior to trial and that he could have visited
counsel at any time, yet chose not to. Most importantly, the circuit court found “[petitioner’s]
testimony regarding the number of consultations and the extent of communications with [counsel]
not credible.”

         Finally, the Court finds no merit in petitioner’s allegation that counsel failed to adequately
advise him. Petitioner alleges that counsel never advised him about testifying at trial, the
particulars of a plea offer, or the possible sentence he faced if the matter went to trial. However,
the circuit court noted that petitioner’s own testimony contradicts these allegations. Petitioner
admitted that he discussed testifying at trial with counsel during one of their phone conversations.
Additionally, on cross-examination, petitioner specifically stated that he was aware he faced
significantly more prison time if he went to trial than if he accepted the plea offer. Counsel also
testified that petitioner continually refused to accept any plea agreement because he was adamant
that the incident was accidental. Finally, petitioner admitted that counsel informed him he was
exposed to a significant amount of incarceration for the crimes and that he understood the charges
against him.

        Based upon the above, the Court finds that petitioner failed to satisfy the first Strickland
factor. As such, it is unnecessary to address the second Strickland factor, and it is clear that
petitioner is not entitled to habeas relief. For the foregoing reasons, the circuit court’s March 5,
2013, order denying petitioner’s petition for writ of habeas corpus is hereby affirmed.

                                                                                            Affirmed.

ISSUED: January 13, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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