                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



Danny S.,
                                                                            FILED
Petitioner Below, Petitioner                                                       January 30, 2015

                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 13-0946 (Nicholas County 02-C-13)                                         OF WEST VIRGINIA


David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION

        Petitioner Danny S.,1 appearing pro se, appeals the following three orders of the Circuit
Court of Nicholas County: (1) a January 28, 2007, order that denied certain grounds for relief in
petitioner’s habeas corpus proceeding; (2) an August 15, 2013, order that denied the remaining
grounds in petitioner’s habeas proceeding; and (3) an August 15, 2013, order that denied the
motions petitioner filed pro se in his habeas proceeding. Respondent David Ballard, Warden, Mt.
Olive Correctional Complex, by counsel Laura Young, filed a response, and petitioner filed a
reply.

        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 orders is appropriate under Rule 21
of the Rules of Appellate Procedure.

       On January 11, 2000, a Nicholas County grand jury returned a seventy-nine count
indictment against petitioner charging him with sexual offenses against E.S., petitioner’s minor
stepdaughter. The offenses were allegedly committed between 1991 and 1999, when E.S. was
between age 6 and age 14.

        Petitioner’s trial occurred in August of 2000 after petitioner refused a plea agreement.
Although the jury returned a verdict on the first evening of deliberations, the circuit court had
earlier given a modified Allen charge2 and indicated that it generally expected a jury to deliberate

       1
         Consistent with our practice in cases involving sensitive facts, we use only petitioner’s
first name and last initial, and identify the minor victim only by her initials. See State ex rel. W.Va.
Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
       2
        See Allen v. United States, 164 U.S. 492 (1896) (approving of the charge read to a
deadlocked jury).
                                                   1
as long as the trial lasted to see if a verdict would be reached (in this case, three days). The jury
found the petitioner guilty of twenty-seven counts: (1) one count of first degree sexual assault, (2)
twelve counts of first degree sexual abuse, (3) nine counts of second degree sexual assault and (4)
five counts of sexual abuse by a parent, guardian or custodian.3 On October 18, 2000, the circuit
court sentenced petitioner to fifty-six to one hundred twenty years in the state penitentiary.

        Petitioner filed a petition for writ of habeas corpus in 2002. Successive appointments of
counsel occurred. On January 18, 2007, the circuit court denied habeas relief on the following
grounds: (a) that petitioner’s indictment was not defective; (b) that petitioner was not denied his
right to cross examine E.S., or his right to present witnesses and evidence in his defense; (c) that it
was not improper for the circuit court to give the modified Allen charge; and (d) that petitioner was
not punished for refusing to a plea bargain. The circuit court specified that its order was not a final
order because the issue of ineffective counsel required further adjudication. Subsequently,
petitioner was permitted to raise two additional issues: (1) whether the State fabricated serology
evidence;4 and (2) whether petitioner was inadequately informed of the nature of a Kennedy plea
before he rejected a plea agreement.5

         The circuit court held evidentiary hearings on February 27, 2007, and April 20, 2007, at
which petitioner represented himself with standby counsel in attendance. Petitioner’s trial counsel
testified. On June 13, 2007, the circuit court directed petitioner to file a brief within thirty days of
the mailing of the hearing transcripts to him. Petitioner did not file a brief, but did file various pro
se motions to (a) stay the habeas proceeding; (b) hire an independent DNA expert; (c) hold
additional evidentiary hearings; (d) to extend the briefing schedule; (e) to reconstruct the record
due to a missing transcript pursuant to Rule 80(e) of the West Virginia Rules of Civil Procedure;
(f) reschedule an evidentiary hearing; (g) appoint new habeas counsel; and (h) redo the habeas
proceeding from the beginning.

        A status conference and a final habeas corpus hearing were held on March 26, 2013, and
May 22, 2013, respectively. At the May 22, 2013 hearing, the circuit court granted standby
counsel’s motion to withdraw completely from the case. In making the motion to withdraw,
counsel cited (1) a lack of communication between petitioner and counsel; and (2) ethical
obligations requiring them not to pursue frivolous claims. The circuit court granted counsel’s
motion. In a thirty-five page order, entered August 15, 2013, the circuit court rejected petitioner’s
claims of (a) ineffective assistance of counsel; (b) serology evidence;6 and (c) the Kennedy plea. In


       3
           The other counts of the indictment were dismissed by the State prior to trial.
       4
         See In the Matter of: Renewed Investigation of State Police Crime Laboratory, Serology
Div., 219 W.Va. 408, 633 S.E.2d 762 (2006).
       5
           See Kennedy v. Frazier, 178 W.Va. 10, 357 S.E .2d 43 (1987).
       6
        Both serology evidence and DNA testing are discussed in the record. Petitioner’s DNA
was found on a fuzzy blanket and a sheet seized during a police search of petitioner’s residence.
                                                   2
a second order, also entered August 15, 2013, the circuit court denied petitioner’s pro se motions.
The circuit court designated both August 15, 2013, orders as appealable orders that finally
disposed of petitioner’s habeas case.

        Petitioner now appeals the circuit court’s denial of his habeas petition. We review a circuit
court’s order that denies a habeas petition under 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

        On appeal, petitioner argues that he should have been granted habeas relief because (1) it
was improper for the circuit court to give the modified Allen charge; (2) petitioner was punished
for not agreeing to a plea bargain;7 (3) petitioner was denied effective assistance of counsel; and
(4) petitioner was denied his right to cross examine E.S. about (a) her motive to lie, and (b) the
dismissed counts of the indictment that were based on proven false accusations. Respondent
warden counters that the record does not reflect the State’s reasons for dismissing the other counts
of the indictment and that the circuit court’s denial of petitioner’s habeas petition should be
affirmed. We agree and find that the circuit court’s three orders adequately refuted all of
petitioner’s claims and properly denied his petition.

        Having reviewed (1) the circuit court’s “Order Denying Writ of Habeas Corpus on All
Grounds Except Ineffective Assistance of Counsel and Setting Evidentiary Hearing,” entered
January 18, 2007; (2) the circuit court’s “Final Order Denying Writ of Habeas Corpus and
Dismissing Case,” entered August 15, 2013; and (3) the circuit court’s “Order Denying
Petitioner’s Motions,” entered August 15, 2013, we hereby adopt and incorporate the circuit
court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal.
The Clerk is directed to attach copies of the circuit court’s orders to this memorandum decision.8

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.




       7
           Petitioner also discusses his Kennedy plea issue as part of this assignment of error.
       8
           Certain names in the orders have been redacted. See fn. 1.
                                                   3
ISSUED: January 30, 2015

CONCURRED IN BY:

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




                                    4
