                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


Nathan S.,
Petitioner Below, Petitioner                                                      FILED
                                                                              March 23, 2020
vs.) No. 17-1083 (Berkeley County CC-02-2015-C-65)                           EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Tom Harlan, Interim Superintendent,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION


         Petitioner Nathan S., by counsel Patrick Kratovil, appeals the November 13, 2017, order
of the Circuit Court of Berkeley County that denied his petition for post-conviction habeas corpus
relief. Interim Superintendent Tom Harlan,1 by counsel Shannon Frederick Kiser, filed a summary
response. On appeal, petitioner argues that the circuit court erred by failing to conduct an
evidentiary hearing on his habeas petition, and by denying his claim of ineffective assistance of
trial and appellate counsel.

        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 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 2010, petitioner was indicted on thirteen counts of child abuse by a parent, guardian, or
custodian causing injury under West Virginia Code § 61-8D-3(a).2 The alleged victims were one


       1
        When petitioner filed this case, Michael Martin was the Superintendent of the Huttonsville
Correctional Center. However, Tom Harlan is now the Interim Superintendent of that Center. The
Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia
Rules of Appellate Procedure.
       2
          Petitioner’s indictment alleged that between September of 2008 and April of 2009,
petitioner: (1) punched K.F., a minor, in the side (Count One) and burned her with a cigarette
(Count Two); (2) shot C.F., a minor, with a BB gun (Count Three), burned him with a cigarette
(Count Four), and punched him in the arm (Count Five); (3) shot A.F., a minor, with a BB gun
(Count Six), choked him (Count Seven), shot him with a bottle rocket (Count Eight), and struck
him with a metal spoon causing bleeding (Count Nine); (4) burned I.F., a minor, with a cigarette
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of petitioner’s children and four of his wife’s children. In 2013, the matter proceeded to an eleven-
day trial.3 At the close of the State’s case-in-chief, petitioner moved for a judgment of acquittal on
all but Count Ten of the indictment (alleging petitioner burned I.F. with a cigarette). Although the
trial court noted, “I know there is a whole lot of conflicting testimony. There’s a lot of inconsistent
testimony,” it denied petitioner’s motion. At the close of petitioner’s case-in-chief, he renewed his
motion for a judgment of acquittal. The trial court replied: “I’m going to deny the motions at this
time. I recognize that there’s very conflicting evidence, and there’s no evidence, virtually, of any
kind of testimony other than the children, however, their testimony is evidence, and to that extent
I agree with the State.” Ultimately, the jury found petitioner guilty on four counts: (1) punching
K.F. in the side (Count One); (2) choking A.F. (Count Seven); (3) choking I.F. (Count Eleven);
and (4) striking H.S. with a metal spoon on the leg (Count Twelve).

        Following trial, the State filed a recidivist information against petitioner alleging he was
previously convicted of two qualifying felony offenses, both of which were driving under the
influence, third offense. The circuit court found petitioner was the person who committed those
crimes and deemed him a recidivist. The trial court subsequently denied petitioner’s post-trial
motions and sentenced him to an indeterminate term of one to five years in prison for Count Seven,
one to five years in prison for Count Eleven, and one to five years in prison for Count Twelve, to
be served concurrently. With regard to petitioner’s conviction on Count One, the trial court
sentenced petitioner to life in prison with the possibility of parole based on his recidivist standing,
and ordered that his life sentence run consecutively to his three concurrent one- to five-year
sentences.

        Petitioner’s direct appeal to this Court raised four grounds for relief. In the first three of
those grounds, petitioner claimed that the trial court abused its discretion by allowing the State to
introduce evidence under Rule 404(b) of the Rules of Evidence where (1) the notice to do so was
deficient as a matter of law; (2) the evidence of petitioner’s alleged sexual misconduct regarded
his non-custodial step-daughter, A.F., who was not named as a victim in petitioner’s indictment;
and (3) A.F.’s testimony (that petitioner allegedly “passed [her] around” so that friends and
relatives could sexually abuse/assault her) had no evidentiary support. In a fourth ground,
petitioner claimed the trial court’s errors were cumulative and prevented him from receiving a fair
trial. While we criticized the State’s use of Rule 404(b) evidence at petitioner’s trial, we ultimately
affirmed petitioner’s conviction and sentence in State v. Nathan S., No. 13-0767, 2014 WL
6676550 (W. Va. Nov. 21, 2014)(memorandum decision).

        On February 2, 2015, petitioner filed a pro se petition for habeas relief. Thereafter, the
habeas court appointed Attorney Ben J. Crawley-Woods who drafted petitioner’s amended petition
alleging (l) ineffective assistance of trial counsel; (2) insufficient evidence; (3) ineffective
assistance of appellate counsel for failing to raise insufficient evidence and unconstitutionally
disproportionate sentence; (4) improper admission of Rule 404(b) evidence, i.e., an


(Count Ten) and choked him (Count Eleven); and (5) struck H.S., a minor, with a metal spoon on
the leg (Count Twelve) and hit her in the eye with a baseball bat (Count Thirteen).
       3
        Petitioner’s wife was also charged in a separate indictment with five counts of child abuse
causing bodily injury and was tried with petitioner.
                                                  2
alleged/uncharged sexual assault; and (5) cumulative error by trial and appellate counsel.
Petitioner’s current habeas counsel, Patrick Kratovil, stands on Mr. Crawley-Woods’s amended
petition.

      In its November 13, 2017, order, the habeas court denied relief on all grounds. Petitioner
now 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).

        Petitioner raises two assignments of error on appeal.4 Petitioner first argues that the circuit
court committed reversible error by failing to conduct an omnibus evidentiary hearing on
petitioner’s habeas claims. We have said, “[a] court having jurisdiction over habeas corpus
proceedings may deny a petition for a writ of habeas corpus without a hearing . . . .” Syl. Pt. 3, in
part, Tex S. v. Pszczolkowski, 236 W. Va. 245, 778 S.E.2d 694 (2015) (citing Syl. Pt. 1, Perdue v.
Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973)); see also W. Va. Code § 53-4A-7(a). “If the court
determines that an evidentiary hearing is not required, the court shall include in its final order
findings of fact and conclusions of law as to why an evidentiary hearing was not required.” Tex S.
at 252-53, 778 S.E.2d at 701-02 (quoting Rule 9(a) of the Rules Governing Post-Conviction
Habeas Corpus Proceedings in West Virginia).

        The habeas court satisfied Tex S. because it included in its order that “a hearing would not
aid the [c]ourt” because “it is clear from the record that [p]etitioner is not entitled to any relief for
his claims.” Moreover, the order contained extensive findings of fact and conclusions of law on
each of petitioner’s claims for relief. Having reviewed the order on the appeal in light of
petitioner’s assignments of error and the record in this case, we concur that an evidentiary hearing
would not have aided the court, because petitioner was entitled to no relief. Accordingly, we find
that the circuit court did not err in choosing not to hold an evidentiary hearing on petitioner’s


        4
          As noted above, petitioner clearly raised only two assignments of error on appeal: (1) the
habeas court’s decision not to conduct an evidentiary hearing, and (2) ineffective assistance of trial
and appellate counsel. Nevertheless, following his argument for this second assignment of error,
petitioner wanders into a discussion regarding the sufficiency of the evidence at trial, and whether
his recidivist sentence was constitutional. Rule 10(c)(3) of the West Virginia Rules of Appellate
Procedure provides, in relevant part, that a petitioner’s “brief opens with a list of the assignments
of error that are presented for review” and that the “statement of the assignments of error will be
deemed to include every subsidiary question fairly comprised therein.” (Emphasis added.) Because
petitioner fails to assign error to the sufficiency of the evidence at trial or to the constitutionality
of his recidivist sentence in accordance with Rule 10(c)(3), we decline to address those issues
herein.


                                                   3
habeas claims.

         Petitioner’s second and final assignment of error is that the circuit court committed
reversible error by denying his ineffective assistance of trial and appellate counsel claims. Pursuant
to syllabus point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995):

              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.

        With regard to his trial counsel, petitioner argues that he failed to (1) call witnesses who
may have provided an alibi for petitioner regarding the charges that he choked A.F. and I.F. (i.e.,
he was in jail for part of the time during which the choking incidents allegedly occurred); (2) call
witnesses from DHHR who could have testified that the claims of child abuse against petitioner
were unsubstantiated; (3) timely move for an independent medical examination of H.S., which
would have established that H.S. had no injury from the alleged striking with a metal spoon; (4)
secure witnesses and the admission of H.S.’s medical records that would have shown that the scar
on her leg resulted from a MRSA infection, and not from any abuse by petitioner; and (5) notify
the circuit court at sentencing that the imposition of a life sentence for a recidivist under West
Virginia Code § 61-11-18(c) is discretionary. Petitioner also argues that the trial court erred in
admitting irrelevant, inflammatory, and unfairly prejudicial evidence of an alleged/uncharged
sexual assault under Rule 404(b).

       The habeas court addressed petitioner’s claims of ineffective assistance of trial and
appellate counsel under Miller’s second prong and found that petitioner was entitled to no relief
because he could not show that, but for trial counsel’s unprofessional errors, the result of the
proceedings would have been different. See Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W. Va.
314, 465 S.E.2d 416 (1995).5 Having reviewed the circuit court’s November 12, 2014,
comprehensive order that addressed each of petitioner’s claims of ineffective assistance of counsel,
we find no error. Accordingly, we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions into this memorandum decision.6


       5
         Pursuant to syllabus point 5 of Legursky, the circuit court was not required to address
both prongs of the Miller test:

               In deciding ineffective assistance of counsel claims, a court need not
       address both prongs of the conjunctive standard of Strickland v. Washington, 466
       U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.Va.
       3, 459 S.E.2d 114 (1995), but may dispose of such a claim based solely on a
       petitioner’s failure to meet either prong of the test.
       6
         The habeas court’s findings and conclusions regarding petitioner’s claim of ineffective
assistance of trial counsel may be found on pages 4 through 8 of the order on appeal. The habeas
                                                  4
       The Clerk is directed to attach a copy of the circuit court’s November 13, 2017, order to
this memorandum decision.

       For the foregoing reasons, we affirm.
                                                                                         Affirmed.

ISSUED: March 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




court’s findings and conclusions regarding petitioner’s claim of ineffective assistance of appellate
counsel may be found on pages 14 through 17 of the order on appeal.
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