                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS 



Vernon H. Dunlap, 
                                                                 FILED
Petitioner Below, Petitioner                                                      April 9, 2018 

                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 17-0082 (Jefferson County CC-19-2010-C-377)                            SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Ralph Terry, Acting Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Vernon H. Dunlap, by counsel Christian J. Riddel, appeals the December 30,
2016, order of the Circuit Court of Jefferson County denying his second amended petition for
post-conviction habeas corpus relief. Respondent Ralph Terry, Acting Warden, Mt. Olive
Correctional Complex, by counsel Scott E. Johnson, filed a response in support of the circuit
court’s order.1 On appeal, petitioner argues that the circuit court erred in finding that his first
habeas counsel’s investigation was appropriate as a strategy choice.

        The 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.

         In the underlying criminal action, petitioner was indicted in September of 2005 for the
first-degree murder of Jennifer Dodson. Ms. Dodson’s body was found face down in a pool of
blood in her home. Petitioner was Ms. Dodson’s boyfriend and was last seen inside Ms. Dodson’s
apartment the night she was murdered. Petitioner was found unconscious in his truck that same
night. When found, petitioner had two large knives in his possession, however, neither the knives
nor petitioner were soiled with blood. At trial, four witnesses testified that petitioner confessed to
them that he committed the murder. Petitioner’s trial counsel asserted that the police arrested the
wrong person and that no physical evidence linked petitioner to the crime. Ultimately, petitioner

       1
         Petitioner originally listed David Ballard as respondent to this action. However, Ralph
Terry is now the acting warden at the facility in question. Accordingly, the proper public officer
has been substituted pursuant to Rule 41(c) of the Rules of Appellate Procedure.

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was convicted of first-degree murder, without mercy. Petitioner was sentenced to life
imprisonment without the possibility of parole. Petitioner appealed his conviction and this Court
denied his appeal.

        Petitioner filed his habeas petition pro se in 2006. Appointed counsel filed an amended
petition alleging ineffective assistance of trial counsel, improper bifurcation of guilt and mercy
phases, and the admission of inadmissible evidence. In April of 2008, petitioner and his trial
counsel testified at an omnibus hearing. In October of 2008, petitioner’s petition for habeas corpus
(hereinafter “first petition”) was denied. Petitioner appealed that denial and this Court affirmed the
habeas court’s order. See State ex rel. Dunlap v McBride, 225 W.Va. 192, 691 S.E.2d 183 (2010).

         Thereafter, petitioner filed a second petition for writ of habeas corpus in the Circuit Court
of Jefferson County asserting ineffective assistance of habeas counsel. New appointed counsel
filed an amended petition and a supporting memorandum of law. In a ten-page order entered on
December 30, 2016, the circuit court denied the amended petition after finding that petitioner was
entitled to no relief. With regard to the first habeas counsel’s investigation, the circuit court found
that “[first habeas counsel]’s conduct arose from decisions involving strategy, tactics and arguable
courses of action” and that “because other reasonable lawyers, similarly situated, would have acted
in a like manner to prior habeas counsel, the petitioner fails to meet his burden of proof, and is not
entitled to habeas corpus relief" on the second habeas petition. Petitioner now appeals that order.

       We apply the following standard of review in habeas appeals:

               “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, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

       We also bear in mind that

               [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.

Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

       On appeal, petitioner argues that the circuit court erred in finding petitioner’s first habeas
counsel’s assistance was reasonable because counsel’s level of investigation was the result of a
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permissible strategic choice. Specifically, petitioner asserts that his first habeas counsel did not
investigate or subpoena one of the witnesses to petitioner’s confessions and that habeas counsel
did not investigate the alibi of a potential suspect. Petitioner argues that strategic choices by
counsel cannot be made without a thorough investigation.

        We find no error in the circuit court’s summary dismissal of petitioner’s second habeas
petition. West Virginia Code § 53-4A-3(a), in relevant part, provides that

       [i]f the petition, affidavits, exhibits, records and other documentary evidence
       attached thereto, or the record in the proceedings which resulted in the conviction
       and sentence, or the record or records in a proceeding or proceedings on a prior
       petition or petitions filed under the provisions of this article, or the record or
       records in any other proceeding or proceedings instituted by the petitioner to secure
       relief from his conviction or sentence (if any such record or records are part of the
       official court files of the court with whose clerk the petition is filed or are part of the
       official court files of any other court within the same judicial circuit as the court
       with whose clerk such petition is filed and are thus available for examination and
       review by such court) show to the satisfaction of the court that the petitioner is
       entitled to no relief, or that the contention or contentions and grounds (in fact or
       law) advanced have been previously and finally adjudicated or waived, the court
       shall by order entered of record refuse to grant a writ, and such refusal shall
       constitute a final judgment.

Thus, it is clear that the circuit court had the authority to summarily dismiss the petition upon a
finding that petitioner was entitled to no relief. As addressed below, petitioner’s ineffective
assistance of habeas counsel claim was without merit, so we find no error in the circuit court’s
summary dismissal of the claim.2

              In 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). A claim may be disposed of for

       2
         Although the circuit court dismissed petitioner’s ineffective assistance of habeas counsel
claim on the ground that counsel’s level of investigation was a strategic choice, we may affirm the
decision for any just reason appearing from the record. Syl. Pt. 4, N.C. v. W.R.C., 173 W.Va. 434,
317 S.E.2d 793 (1984) (“‘This Court may, on appeal, affirm the judgment of the lower court when
it appears that such judgment is correct on any legal ground disclosed by the record, regardless of
the ground, reason or theory assigned by the lower court as the basis for its judgment.’ Syl. pt. 3,
Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).”).

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failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky, 195
W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet the burden of proof imposed by either part of
the Strickland/Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden,
W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citation omitted).

        Petitioner’s first claim that his first habeas counsel did not investigate or subpoena one of
the witnesses to petitioner’s confession is meritless because petitioner cannot claim a reasonable
probability that the result of the proceedings would have been different. The record provides four
witnesses that testified to separate confessions made by petitioner. Petitioner alleges that further
investigation could produce information to discredit one of those witnesses, but three more
individuals support the underlying conviction with testimony of petitioner’s confession.
Accordingly, we find that the circuit court did not err in finding that the first habeas counsel
provided effective assistance.

        Petitioner’s second claim that the first habeas counsel did not investigate the alibi of a
potential suspect is also meritless because petitioner cannot show that counsel’s performance was
deficient or that the result of his proceedings would have been different. Petitioner did not provide
an affidavit of the allegedly missing information or the records he describes in his second amended
habeas petition. In fact, petitioner provided no evidence to support his position. Petitioner makes
only vague assertions that certain records or contact with this suspect would have produced
discrepancies but does not assert how those discrepancies would manifest a change in the outcome.
West Virginia Code § 53-4A-3(a) provides that summary dismissal is proper when “the petition,
affidavits, exhibits, records and other documentary evidence” show to the satisfaction of the circuit
court that petitioner is entitled to no relief. By not producing the records himself during the second
habeas petition, petitioner’s claims are too vague to meet his burden of proof. Accordingly, we
find that the circuit court did not err in finding first habeas counsel provided effective assistance.

        For the foregoing reasons, we affirm the circuit court’s December 30, 2016, order denying
petitioner’s second amended petition for writ of habeas corpus.

                                                                                            Affirmed.

ISSUED: April 9, 2018

CONCURRED IN BY:

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




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