                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


J.L.,                                                                              FILED
                                                                                  June 7, 2013
Petitioner Below, Petitioner                                                 RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0431 (Webster County 08-P-13)                                       OF WEST VIRGINIA



David Ballard, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner J.L.1, by counsel, Andrew Chattin, appeals the Circuit Court of Webster
County’s order entered on October 4, 2010, granting in part and denying in part post-conviction
habeas relief. Warden Ballard, by the office of the Attorney General, has filed a response.

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

        Petitioner was indicted by the Webster County Grand Jury during the May of 2004 Term
on seventeen counts, including seven counts of sexual assault in the first degree, five counts of
sexual abuse by a parent, guardian, or custodian, and five counts of incest. He was accused of
molesting his son, and states that the allegations arose after he informed his ex-wife and mother
of his children that the son was engaging in inappropriate sexual conduct with the son’s younger
brother. The victim indicated that his father had subjected him to numerous acts of anal
penetration from the time he was almost four until he was seven years old. After interviews by
CPS and the police, petitioner was arrested. Petitioner pled not guilty but after a trial in October
of 2004, he was found guilty of four counts of first degree sexual assault, four counts of sexual
abuse by a parent, guardian or custodian, and four counts of incest.

        On June 6, 2005, petitioner was sentenced to fifteen to thirty-five years in prison on each
of the four counts of sexual assault in the first degree; not less than ten years but not more than
twenty years on each of the four counts of sexual abuse by a parent, guardian or custodian; and
five to fifteen years on each count of incest. The effective sentence was twenty to fifty years of
incarceration. Defense counsel filed post-trial motions, but prior to a hearing on those motions,
disagreements between petitioner and counsel arose and his counsel was relieved. Petitioner has

1
 Consistent with our practice in cases involving sensitive matters, we use the parties’ initials as
per State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
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since had approximately seven attorneys appointed, with attorney-client relations deteriorating
each time. Petitioner’s direct appeal was refused by this Court. Thereafter, petitioner, by counsel,
filed a petition for writ of habeas corpus. An omnibus hearing was held on March 19, 2010. On
October 4, 2010, the circuit court entered a thirty-six page order granting in part and denying in
part post-conviction habeas relief.

       This Court reviews appeals of circuit court orders denying habeas corpus relief 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.” 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).

        On appeal, petitioner argues that his trial counsel and appellate counsel were ineffective
in various aspects of their representation of petitioner. Petitioner also argues that he was denied
his right to a fair trial because the prosecution was not fair and impartial. Finally, he argues that
the actions and rulings of the trial court violated the ex post facto principles of the United States
and West Virginia Constitutions. In response, Warden Ballard argues that nether petitioner’s trial
counsel nor his appellate counsel were ineffective, as their actions could be explained by trial
strategies and did not rise to the level of ineffectiveness. Warden Ballard also contends that the
argument that the prosecution was unfair and impartial is without merit. As to the final
assignment of error, Warden Ballard categorizes this error as an attempt to re-frame all of the
prior arguments. Moreover, the trial court recognized the original sentence imposed was
improper, and petitioner’s sentence was reduced.

        Petitioner makes no less than thirty-five allegations of ineffective assistance of trial
counsel and appellate counsel. Many are in the nature of failing to confront witnesses regarding
inconsistent statements, failing to call certain witnesses, and failing to object to statements made
by the prosecuting attorney. The circuit court satisfactorily addressed each allegation in detail.
Most of the conduct challenged involved trial strategy where alternating and potentially
conflicting considerations were present. Many are instances where petitioner’s allegations are
simply incorrect or unfounded. The overwhelming majority involve the discretion that must be
ceded to counsel.

       Our review of the record reflects no clear error or abuse of discretion by the circuit court.
Having reviewed the circuit court’s “Order Granting in Part and Denying in Part Post-Conviction
Habeas Corpus Petition” entered on October 4, 2010, 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 a copy of the circuit court’s order to this memorandum
decision.



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       For the foregoing reasons, we affirm.

                                                   Affirmed.

ISSUED: June 7, 2013

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




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