                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

Darnell A. Allen, Jr.,
Petitioner Below, Petitioner                                                        FILED
                                                                                  May 14, 2018
vs.) No. 16-1082 (Mineral County 06-C-118)                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 
Ralph Terry, Acting Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                                                          MEMORANDUM DECISION

        Petitioner Darnell A. Allen Jr., by counsel J. Brent Easton, appeals the Circuit Court of
Mineral County’s November 1, 2016, order denying his second petition for writ of habeas corpus
following his conviction by a jury of first-degree murder. Ralph Terry, Acting Warden, Mount
Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a response in support of
the circuit court’s order.1 On appeal, petitioner argues that the circuit court erred in denying him
habeas relief because of certain issues raised by the serology evidence at trial and that he was
denied due process by the circuit court’s failure to timely hear his petition.

        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.

        In August of 1995, petitioner was convicted by a jury in the Circuit Court of Mineral
County of the first-degree murder of Arthur Samuel Smith Jr., who was beaten to death with a
blunt instrument in the early morning hours of January 8, 1994, in Keyser, West Virginia.2
Petitioner and his codefendant were identified as the perpetrators by a witness who, from the
upstairs window of his apartment, saw two black men in dark bulky coats striking something on
the ground with a stick or club near a church. The witness called police who, when they arrived,
                                                            
              1
        The warden at Mt. Olive Correctional Complex has changed to Ralph Terry, Acting
Warden, and the Court has made this substitution of parties pursuant to Rule 41(c) of the West
Virginia Rules of Appellate Procedure.
              2
        See State v. Horton, 203 W.Va. 9, 506 S.E.2d 46 (1998) (affirming the murder
convictions of petitioner and his codefendant).  



                                                                   1
 
discovered the victim’s body. Petitioner and his codefendant were spotted in the area near the
crime scene and were picked up by police because they matched the eyewitness’s description of
the suspects.

        Police tested articles of clothing that petitioner and his codefendant wore that night.
Trooper H.B. Myers of the West Virginia State Police conducted serological testing on a piece of
flesh that was found on petitioner’s baseball cap and found that it had the same genotype as the
victim. Serological testing by Trooper Myers on the codefendant’s jeans was inconclusive, but
Brian Wraxall of the Serological Research Institute in California identified Polymerase Chain
Reaction (“PCR”) markers that were consistent with the victim’s DNA from blood found on the
jeans and that occur in approximately one in 6.25 million persons in the Caucasian population.3

        Thereafter, petitioner’s direct appeal was denied by this Court.4 See n.2. In April of 1999,
petitioner filed a petition for writ of habeas corpus. Following an omnibus evidentiary hearing,
the circuit court denied the petition by order entered in February of 2004. Thereafter, petitioner
petitioned for appeal, and this Court refused the same.

       In October of 2006, petitioner filed his second petition for writ of habeas corpus.
Thereafter, the circuit court entered an order appointing counsel to “represent [petitioner] . . . on
the limited issue of the evidence presented by Trooper Myers during the criminal trial . . . in
accordance with Zain III.” See In re Renewed Investigation of State Police Crime Laboratory,
Serology Division (“Zain III”), 219 W.Va. 408, 633 S.E.2d 762 (2006).5

        Meanwhile, petitioner, along with his codefendant, filed a joint motion for DNA testing
of the codefendant’s boots or pants and petitioner’s cap, pursuant to West Virginia Code § 15-
28-14. They argued that an independent DNA test had never been conducted in this case; that
there was possible contamination of the serological evidence when it was done in 1994; that
testing procedures may not have been appropriately followed when the testing was done; that
Trooper Myers is alleged to have provided false serology evidence in another, unrelated criminal
case; and that DNA testing is relevant to their claims that they are innocent of the crime for
which they were convicted. The State filed a response opposing the request for DNA testing.

              A hearing was conducted in August of 2016, approximately ten years after petitioner filed
                                                            
              3
                  The victim was Caucasian.
 
              4
          At trial, in addition to the serological and DNA evidence, the State introduced evidence
that, a few nights before the murder, petitioner asked another man if he could borrow his baseball
bat; that the man agreed; and that the bat went missing the next day. (The murder weapon was
never found). The evidence also revealed that, a few months before the crime, petitioner
threatened the victim because the victim had kissed his teenage sister on the cheek. See Horton,
203 W.Va. at 14, 506 S.E.2d at 51.
               
              5
        Petitioner’s habeas petition and that of his codefendant were merged for purposes of an
evidentiary hearing.



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his second request for habeas relief. Trooper Myers was the only witness. By order entered
November 1, 2016, the circuit court denied petitioner’s request for habeas relief and for DNA
testing. This appeal followed.

       Our review of the circuit court’s order denying petitioner’s petition for a writ of habeas
corpus is governed by the following standard:

                      “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.” Syllabus point 1, Mathena v.
              Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        In his first assignment of error, petitioner argues that the circuit court erred in failing to
grant him habeas relief. He contends that he presented evidence that Trooper Myers has a history
of intentional misrepresentation of serology test results and methods and that he was entitled to a
new trial. In syllabus point four of Zain III, this Court held as follows:

                      A prisoner against whom a West Virginia State Police Crime Laboratory
              serologist, other than Fred Zain, offered evidence and who challenges his or her
              conviction based on the serology evidence is to be granted a full habeas corpus
              hearing on the issue of the serology evidence. The prisoner is to be represented by
              counsel unless he or she knowingly and intelligently waives that right. The circuit
              court is to review the serology evidence presented by the prisoner with searching
              and painstaking scrutiny. At the close of the evidence, the circuit court is to draft
              a comprehensive order which includes detailed findings as to the truth or falsity of
              the serology evidence and if the evidence is found to be false, whether the
              prisoner has shown the necessity of a new trial based on the five factors set forth
              in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

219 W.Va. at 409, 633 S.E.2d at 763.6

                                                            
              6
        In 1993, an investigation revealed that Fred Zain, a serologist in the State Police Crime
Lab, had “intentionally and systematically [given] inaccurate, invalid, or false testimony or
reports” in criminal prosecutions. Zain III, 219 W.Va. at 410, 633 S.E.2d at 764 (citing In Matter
of West Virginia State Police Crime Laboratory (“Zain I”), 190 W.Va. 321, 438 S.E.2d 501
(1993)). As a result of this investigation, this Court concluded that, as a matter of law, any
evidence offered by Zain in any criminal prosecution was presumptively

              “invalid, unreliable, and inadmissible in determining whether to award a new trial
              in any subsequent habeas corpus proceeding. The only issue in any habeas corpus

                                                                                          (continued . . . )
                                                               3
 
       Petitioner argues that he satisfied the five factors set forth in Frazier such that his habeas
request should have been granted and a new trial ordered. In the syllabus of Frazier, this Court
held:

              “A new trial will not be granted on the ground of newly-discovered evidence
              unless the case comes within the following rules: (1) The evidence must appear to
              have been discovered since the trial, and, from the affidavit of the new witness,
              what such evidence will be, or its absence satisfactorily explained. (2) It must
              appear from facts stated in his affidavit that plaintiff was diligent in ascertaining
              and securing his evidence, and that the new evidence is such that due diligence
              would not have secured it before the verdict. (3) Such evidence must be new and
              material, and not merely cumulative; and cumulative evidence is additional
              evidence of the same kind to the same point. (4) The evidence must be such as
              ought to produce an opposite result at a second trial on the merits. (5) And the
              new trial will generally be refused when the sole object of the new evidence is to
              discredit or impeach a witness on the opposite side.” Syllabus Point 1, Halstead v.
              Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

162 W.Va. at 935-36, 253 S.E.2d at 534-35. Importantly, this Court has declared that “all five
elements must be satisfied.” Id. at 941, 253 S.E.2d at 537.

        First, petitioner argues that Trooper Myers presented questionable testimony at trial
regarding the techniques employed in testing materials found on the garments from petitioner
and his codefendant. In support of this claim, petitioner argues that, at the habeas hearing,
Trooper Myers testified that serologists from the crime lab habitually and intentionally testified
to testing techniques by using terminology associated with other techniques and failed to
definitively deny that he testified falsely at petitioner’s trial. Petitioner further argues that,
                                                                                                                                                                                                
              proceeding would be whether the evidence presented at or prior to trial or prior to
              the entry of a guilty plea, independent of the forensic evidence presented by Zain,
              would have been sufficient to support the verdict or plea.”

Zain III, 219 W.Va. at 410, 633 S.E.2d at 764 (quoting Zain I, 190 W.Va. at 340, 438 S.E.2d at
520.).
 
        Subsequently, this Court issued In Matter of West Virginia State Police Crime Lab (“Zain
II”), 191 W.Va. 224, 445 S.E.2d 165 (1994), regarding whether serologists other than Fred Zain
falsified evidence in criminal prosecutions as Zain had done. We concluded that, although there
were occasional minor errors made, they “did not significantly compromise the criminal
prosecutions in which the serologists offered evidence.” Zain III, 219 W.Va. at 411, 633 S.E.2d
at 765. This Court thus concluded that serology reports prepared by crime lab employees other
than Zain “are not subject to the invalidation and other strictures contained in” Zain I. Zain III,
219 W.Va. at 411, 633 S.E.2d at 765 (quoting Zain II, 191 W.Va. at 225, 445 S.E.2d at 166, at
Syl. Pt. 3, in part). Zain III resulted from yet another investigation into allegations of nonexistent
serology test results and trial testimony by serologists other than Fred Zain. See discussion, infra.



                                                                                              4
 
according to a report cited in Zain III, Trooper Myers, an assistant to Zain, was one of the
serologists who reported and testified to “nonexistent serology testing[,]” and that the circuit
court recognized Trooper Myers had a reputation for falsifying evidence when it found, in its
order appointing counsel, that the circuit court “reviewed the [p]etitioner’s prior [h]abeas
[c]orpus filing . . . , wherein [petitioner’s] attorney raised the issue of Trooper Myers’ testimony
and the fact that he was found to have falsified evidence in other cases.” In support of these
arguments, petitioner relies upon a federal magistrate judge’s findings in an unrelated habeas
case that Trooper Myers gave false testimony in the underlying trial in that matter and that this is
evidence that Trooper Myers gave false testimony in petitioner’s criminal trial. See Thomas v.
Trent, Warden, Civil Action No. 2:98-0912 (S.D.W.Va., April 28, 1999).7 Additionally,
petitioner argues that several inconsistencies in Trooper Myers’s testing of the evidence in this
case establish that he is entitled to a new trial, including his inconsistencies as to the size of the
specimens on the clothing obtained from petitioner and his codefendant; the fact that the
specimen from petitioner’s baseball cap was consumed during testing; the lack of documentation
as to the specimens; and the fact that Trooper Myers concluded that black dye in the
codefendant’s jeans prevented a conclusive result while Brian Wraxall was able to reach a
conclusive result from the same specimen using the same test.

         Notwithstanding petitioner’s argument to the contrary, we conclude that petitioner failed
to satisfy the first factor of Frazier—that is, that falsified serological evidence was discovered
after trial. First, petitioner failed to show that the evidence was fabricated or contaminated or
even that the procedures used in the original testing were invalid or unreliable. Petitioner’s
arguments are highly speculative and tenuous and not based in fact. See State ex rel. Burdette v.
Zakaib, 224 W.Va. 325, 332, 685 S.E.2d 903, 910 (2009) (“A defendant simply cannot make
unsupported and blanket allegations and expect a circuit court to grant him a new trial.”). Also
speculative is petitioner’s claim that Trooper Myers’s testimony was not credible. The circuit
court expressly found that Myers’s testimony was both credible and believable. The
determination of Trooper Myers’s credibility as a witness in petitioner’s habeas proceeding was
properly made by the circuit court, which “had the opportunity to observe, first hand, the
demeanor of the witness.” Miller v. Chenoweth, 229 W.Va. 114, 121, 727 S.E.2d 658, 665
(2012). See also State v. Cox, 171 W.Va. 50, 53, 297 S.E.2d 825, 828 (1982) (“It is fundamental
that the credibility of witnesses is a matter for the trier of fact to determine.”).

        Not only did petitioner fail to show that the serological evidence was false, but he also
failed to prove that the evidence was discovered after trial. Petitioner does not dispute that
Trooper Myers’s report and findings were the subject of cross-examination at the criminal trial,
which occurred following the investigation into the misconduct by Zain and resulting opinions
by this Court. See Zain I and Zain II. Nor does he dispute that, at trial, Myers testified regarding

                                                            
              7
        Upon de novo review of the magistrate judge’s findings and recommendations, the
United States District Court for the Southern District of West Virginia refused to adopt the same
and, instead, denied habeas relief. See Thomas v. Trent, Warden, Civil Action No. 2:98-0912
(S.D.W.Va., August 17, 1999).




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the potential for contamination and cross-contamination of the evidence, as did Mr. Wraxall,
who separately tested the available evidence while being observed by a third, independent
expert. Therefore, the serological evidence that is the subject of this appeal was not discovered
after trial and, thus, fails to satisfy the first of the five factors set forth in Frazier.

        Having failed to satisfy one of the Frazier factors, petitioner thus failed to establish that
he is entitled to a new trial. See Frazier, 162 W.Va. at 941, 253 S.E.2d at 537 (requiring that, to
obtain relief, “all five elements must be satisfied.”). Nonetheless, we briefly note that petitioner
also failed to satisfy the Frazier factor requiring that “[t]he evidence must be such as ought to
produce an opposite result at a second trial on the merits.” Id. at 935, 253 S.E.2d at 535, at
Syllabus, in part. Even if the serological evidence were disregarded as false or tainted, an
opposite result at a subsequent trial would not be assured. An eyewitness placed two black men
matching descriptions of petitioner and his codefendant at the place where the victim’s body was
found by police after being beaten to death with a blunt instrument. The men were seen
repeatedly striking something on the ground with a club or a stick. Although the murder weapon
was never recovered, a few nights before, petitioner asked another man if he could borrow his
baseball bat. The man agreed and the bat went missing the next day. The evidence also showed
that, a few months before the murder, petitioner threatened the victim because the victim had
kissed his sister on the cheek. Given this evidence, the Frazier factor requiring that the evidence
must produce an opposite result at a subsequent trial is also not satisfied. Thus, for this additional
reason, the circuit court did not err in denying petitioner’s requests for habeas relief and a new
trial.

       Finally, we address petitioner’s argument that the circuit court failed to timely hear his
habeas petition challenging the serology evidence. This Court has held that

                [a] circuit court that receives a petition for a writ of habeas corpus from a
       prisoner against whom a West Virginia State Police Crime Laboratory serologist,
       other than Fred Zain, offered evidence, and whose request for relief is grounded
       on the serology evidence, is to hear the prisoner’s challenge in as timely a manner
       as is reasonably possible.

Zain III, 219 W.Va. at 410, 633 S.E.2d at 764, Syl. Pt. 5. Petitioner filed the petition in this
matter in October of 2006. However, a hearing was not conducted until August 22, 2016.
Petitioner argues that his constitutional right to due process was violated by this unreasonable
delay.

        On its face, petitioner’s habeas request was not heard in a timely manner. However,
beyond a bald assertion that “[i]nitially, [the delay] fell squarely on the court[,]” petitioner fails
to point to any facts suggesting that either the State or the circuit court caused the delay or that
he was somehow prejudiced as a proximate result thereof. See State ex rel. Daniel v. Legursky,
195 W.Va. 314, 325, 465 S.E.2d 416, 427 (1995) (finding that “petitioner eventually got his day
in court and we are not told of any prejudice suffered by petitioner that was proximately caused
by the delay” where habeas hearing was held six years after trial counsel learned of jury
tampering in underlying criminal trial). Given the circuit court’s conclusion that petitioner’s
habeas grounds were without merit, we find that any error caused by the delay in the

                                                  6
 
proceedings, if any error occurred, was harmless.8

              For the foregoing reasons, we affirm.

                                                                                              Affirmed.

ISSUED: May 14, 2018

CONCURRED IN BY:

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

DISSENTING:

Justice Menis E. Ketchum

        This case should be remanded to the trial court. There should be an independent DNA
test conducted and the possible contamination of the serological evidence explored when the
testing was done in 1994 in light of Zain I and Zain II.
 




                                                            
              8
         In support of this assignment of error, petitioner also concludes that “the failure of
[counsel] to proceed with the matter from 2009 through 2016 can be defined as nothing short of
ineffective assistance of counsel.” This constitutes petitioner’s entire argument on this point.
Pursuant to Rule 10(c)(7) of the Rules of Appellate Procedure,

              [t]he brief must contain an argument exhibiting clearly the points of fact and law
              presented, the standard of review applicable, and citing the authorities relied on,
              under headings that correspond with the assignments of error . . . . The Court may
              disregard errors that are not adequately supported by specific references to the
              record on appeal.

Because petitioner has cited no authority to support this alleged error, we decline to address the
same on appeal.



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