                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Zackery W.,
Petitioner Below, Petitioner
                                                                                    FILED
vs.) No. 19-0173 (Jackson County 15-C-59)                                      February 7, 2020
                                                                                EDYTHE NASH GAISER, CLERK
Donnie Ames, Superintendent,                                                    SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Mt. Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION
        Petitioner Zackery W., by counsel Roger L. Lambert, appeals the January 25, 2019, order
entered in the Circuit Court of Jackson County denying his petition for a post-conviction writ of
habeas corpus.1 Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Mary
Beth Niday, filed a summary response in support of the circuit court’s order. On appeal, petitioner
alleges that the circuit court erred in denying habeas relief because he received ineffective
assistance of counsel at trial.

       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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        On December 4, 2012, petitioner was arrested following allegations that he repeatedly
sexually assaulted two young girls whom he sometimes babysat. Prior to trial, petitioner underwent
a mental competency evaluation performed by Suzanne Choby, M.D. On February 7, 2013, the
trial court held a competency hearing and concluded that petitioner was competent to stand trial.

        On August 16, 2013, petitioner was convicted by a jury of two counts of sexual assault in
the first degree, eleven counts of sexual abuse in the first degree, and thirteen counts of sexual
abuse by a person in a position of trust to a child. At his sentencing hearing, petitioner moved for
a sexual offender evaluation. The request was denied, and petitioner was sentenced to concurrent
terms of twenty-five-to-one-hundred years for each of the two counts of sexual assault in the first
degree, concurrent terms of five-to-twenty-five years for each of the eleven counts of sexual abuse

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).


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in the first degree, and concurrent terms of ten to twenty years for each of the thirteen counts of
sexual abuse by a person in a position of trust to a child. The sentences were imposed
consecutively. Petitioner then filed a direct appeal, and this Court affirmed his convictions. See
State v. Zachary W., No. 13-1177, 2014 WL 4662486 (W. Va. Sept. 19, 2014) (memorandum
decision).

        Petitioner filed a self-litigated petition for a writ of habeas corpus on April 30, 2015. He
was appointed counsel who filed an amended petition on March 1, 2016, asserting fifteen grounds
for relief. Of relevance to the instant appeal, petitioner asserted that he was provided ineffective
assistance of counsel at trial. He alleged that his trial counsel, Pancho Morris, was generally
ineffective in representing him; that Mr. Morris failed to adequately advise petitioner of the
potential consequences of the charges against him and the consequences of refusing a plea deal;
and that Mr. Morris and Kevin Postalwait (petitioner’s counsel for the preliminary hearings) failed
to adequately address the issue of petitioner’s competency to stand trial. Finally, petitioner argued
that Mr. Postalwait, then his appellate attorney, failed to raise any grounds for appeal other than
petitioner’s competency. An omnibus hearing was held on February 8, 2018. The circuit court
denied petitioner’s request for habeas corpus relief by order entered on January 25, 2019. It is from
this order that petitioner appeals.

       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 he received ineffective assistance of trial counsel.
Petitioner asserts that Mr. Morris referred to him as “dimwitted” and, therefore, knew that
petitioner had intellectual disabilities. However, counsel made no effort to obtain psychological,
psychiatric, or educational records for petitioner. Accordingly, Mr. Morris did not learn until the
presentence report that petitioner has an intelligence quotient of fifty-two. Petitioner contends that
if trial counsel had obtained his psychological records, the circuit court would have concluded that
he was not competent to stand trial.2 Petitioner also asserts that Mr. Morris failed to properly

       2
          Petitioner further argues that the habeas court erred in applying the doctrine of res judicata
to limit the scope of the evidence presented at the omnibus hearing. The habeas court found (cont.)
that petitioner argued on direct appeal to this Court that he was entitled to a new trial due to the
inadequacy of his competency assessment. This Court determined that the assessment was
adequate. Because the issue has been fully litigated, the habeas court correctly found that further
litigation of this issue was barred by res judicata. See Losh v. McKenzie, 166 W. Va. 762, 765, 277
S.E.2d 606, 609 (1981) (“Frequently habeas corpus petitioners seek collateral review of
evidentiary or constitutional questions, such as the admissibility of a confession or failure to
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explain to him the concept of indeterminate sentencing and how an indeterminate sentence differs
from a sentence of life with mercy. Petitioner states that he expected to be able to appear before
the parole board sooner than his effective forty-to-one-hundred-and-forty-five-year sentence
allows and that Mr. Morris confused him by advising that he could “get life”.

        Claims of ineffective assistance of counsel are governed by the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), which states that, in order to prevail on a
claim of ineffective assistance of counsel, petitioner must show that “(1) [c]ounsel’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, in relevant part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
Furthermore,

       [i]n reviewing counsel’s performance, courts must apply an objective standard and
       determine whether, in light of all the circumstances, the identified acts or omissions
       were outside the broad range of professionally competent assistance while at the
       same time refraining from engaging in hindsight or second-guessing of trial
       counsel’s strategic decisions. Thus, a reviewing court asks whether a reasonable
       lawyer would have acted, under the circumstances, as defense counsel acted in the
       case at issue.

Id. at 6, 459 S.E.2d at 117 (1995). This Court “always . . . presume[s] strongly that counsel’s
performance was reasonable and adequate[,]” and

       [t]he test of ineffectiveness has little or nothing to do with what the best lawyers
       would have done. Nor is the test even what most good lawyers would have done.
       We only ask whether a reasonable lawyer would have acted, under the
       circumstances, as defense counsel acted in the case at issue. We are not interested
       in grading lawyers’ performances; we are interested in whether the adversarial
       process at the time, in fact, worked adequately.
Id. at 16, 459 S.E.2d at 127. Certainly, with the benefit of hindsight, “one always may identify
shortcomings, but perfection is not the standard for ineffective assistance of counsel.” Id. at 17,
459 S.E.2d at 128.

        We find that petitioner has failed to satisfy the first prong of Strickland/Miller. Petitioner
asserts that if Mr. Morris had obtained psychiatric, psychological, or educational records, he could
have shown that petitioner was not competent to stand trial. Petitioner’s argument fails for several
reasons. First, petitioner fails to show that any such records exist. He also fails to identify a single
report or record of psychiatric or psychological problems that Mr. Morris should have obtained.
Second, Dr. Choby performed a forensic psychiatric report prior to trial and determined that
petitioner was competent to stand trial. Petitioner reported at that time that he had some difficulty
with his temper and attention span as a teenager; however, he stated that he had no psychiatric

exclude physical evidence, when those issues were fully and fairly litigated during the trial and a
record of the proceedings is available. In that event a court may apply rules of res judicata in habeas
corpus because the issue has actually been fully litigated.”)
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diagnoses. Dr. Choby determined that although petitioner’s intelligence quota was in the lower
range, he was able to understand and assist in his trial. Dr. Choby’s report was determined to be
reliable by this Court on direct appeal. See Zachary W., 2014 WL 4662486, at *3. At the omnibus
hearing, Mr. Morris testified that he believed petitioner to be competent to stand trial. He stated
that petitioner understood the role of the judge and jury, the charges laid against him, and the
consequences of the verdict. Mr. Morris further stated that at no time was petitioner unable to assist
with his trial. Furthermore, when questioned by the habeas court, petitioner was able to answer
and respond appropriately. See State v. Chapman, 210 W. Va. 292, 557 S.E.2d 346 (2001) (“a trial
court is able to observe the demeanor of the defendant and consequently has a better vantage point
than [the appellate] [c]ourt to make determinations regarding mental competency”) (quoting State
v. Sanders, 209 W. Va. 367, 379, 549 S.E.2d. 40, 52 (2001)).

         Petitioner further asserts that Mr. Morris failed to adequately explain indeterminate
sentencing and how that differs from a sentence of life with mercy. Petitioner states that he
believed a sentence of life with mercy allows a defendant to appear before the parole board after
fifteen years of incarceration; thus he believed he would be allowed to appear before the parole
board sooner than his effective forty-to-one-hundred-and-forty-five-year sentence allows. At the
omnibus hearing, petitioner admitted that he reached this belief on his own and that he never asked
Mr. Morris if he was correct. Petitioner also admitted that Mr. Morris explained each count of the
indictment and the penalties for each charge. Petitioner testified that Mr. Morris explained the
April 3, 2013, plea offer and the trial court explained the State’s final plea offer. When asked if he
understood the offer and the possible consequences of going to trial, petitioner confirmed that he
understood and stated that he had no questions. Further, as the habeas court found and Mr. Morris
testified, petitioner was resistant to any plea agreement. He repeatedly turned down plea offers and
testified at a hearing that he would not take a plea deal. Based on the evidence, the habeas court
concluded that petitioner failed to show that his counsel’s performance was deficient under an
objective standard of reasonableness. We agree. Therefore, because the first prong of
Strickland/Miller has not been met, we need not address the second prong. See Syl. Pt. 5 State ex
rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995) (holding that “[i]n deciding
ineffective of assistance claims, a court need not address both prongs of the conjunctive standard
of [Strickland/Miller] but may dispose of such a claim based solely on a petitioner's failure to meet
either prong of the test.”)

       For the foregoing reasons, we affirm.
                                                                                           Affirmed.
ISSUED: February 7, 2020

CONCURRED IN BY:

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

DISQUALIFIED:

Justice John A. Hutchison
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