                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

Brian C. Morgan,

Petitioner Below, Petitioner                                                              FILED

                                                                                        January 14, 2013
                                                                                     RORY L. PERRY II, CLERK
vs.) No. 11-1677 (Jackson County 10-C-67)                                          SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA

David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent


                                  MEMORANDUM DECISION

         Petitioner Brian C. Morgan, by counsel Matthew A. Victor, appeals the November 19,
2011 order of the Circuit Court of Jackson County denying his petition for writ of habeas corpus.
Respondent Ballard, by counsel Robert D. Goldberg, filed a response, to which petitioner has
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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

         Following a jury trial, petitioner was convicted of five counts of first degree sexual
assault and ten counts of possession of child pornography related to a pattern of sexual contact
with a minor relative, including the taking of pornographic pictures of the child. By order entered
on June 11, 2008, and corrected by entry of an order on March 24, 2009, petitioner was
sentenced to a combined term of thirty-four to seventy-four years of incarceration for his
convictions. Thereafter, petitioner appealed his criminal convictions, though this Court refused
the petition for appeal by order entered on October 29, 2009. Petitioner then filed, pro se, a
petition for writ of habeas corpus and the circuit court appointed Matthew Victor to represent
petitioner in his circuit court habeas proceeding. An amended petition was filed, after which the
circuit court held an omnibus evidentiary hearing on February 14, 2011. By order entered on
November 19, 2011, the circuit court denied the petition for habeas relief.

        On appeal, petitioner alleges that it was error for the circuit court to deny his petition for
writ of habeas corpus. In support, petitioner re-alleges the grounds for relief raised in his circuit
court petition. Specifically, petitioner alleges that he received ineffective assistance of counsel at
every stage of the proceedings below, resulting in the following errors: failure to seek an
independent mental competency, criminal responsibility and diminished capacity evaluation;
failure to protest petitioner’s desire to testify, resulting in disastrous testimony; failure to hold a
hearing on voluminous evidence which petitioner believed should have been excluded pursuant
                                                      1
­
to Rule 404(b) of the West Virginia Rules of Evidence; failure to require notice of the alleged
Rule 404(b) evidence; failure to recognize problems with petitioner’s confession as addressed in
Missouri v. Seibert, 542 U.S. 600 (2004); allowing Dr. Ralph Smith to perform the competency
and criminal responsibility evaluation and draft the post-trial report; failure to raise issues of
prompt presentment; abandonment of petitioner’s motion to examine the victim; failure to
interview the victim; failure to challenge the seating of biased jurors; introduction of evidence of
an additional assault upon the victim by petitioner; and failure to argue that conviction of ten
counts of possession of child pornography, in violation of West Virginia Code § 61-8C-3, should
have been limited to one count, thereby exposing petitioner to double jeopardy.

        Respondent argues that the circuit court did not err in denying the petition for habeas
relief and that there is no evidence to support the assertion that petitioner suffered from a mental
illness or defect which rendered him incompetent to stand trial or incompetent at the time of the
offense. According to respondent, petitioner was competent and his confession was entirely
admissible because it was voluntary, knowing, and intelligent. Further, respondent argues that
the evidence of which petitioner complains does not fall under the ambit of Rule 404(b) of the
West Virginia Rules of Evidence. According to respondent, petitioner also failed to establish that
he received ineffective assistance of counsel because he could not satisfy either prong of the
Strickland test. Lastly, respondent argues that West Virginia Code § 61-8C-3 is not facially void
for vagueness nor did it subject petitioner to double jeopardy.

       This Court has previously held that

       [i]n 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). After careful
consideration of the parties’ arguments, this Court concludes that the circuit court did not abuse
its discretion in denying the petition for writ of habeas corpus. Having reviewed the circuit
court’s “Judgment Order” entered on November 19, 2011, we hereby adopt and incorporate the
circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this
appeal.1 The Clerk is directed to attach a copy of the circuit court’s order to this memorandum
decision.

     For the foregoing reasons, we find no error in the decision of the circuit court and its
November 19, 2011 order denying the petition for writ of habeas corpus is affirmed.




       1
           The Court does not address any interpretation of West Virginia Code § 61-8C-3.
                                                     2
                                        Affirmed.


ISSUED: January 14, 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




                                  3
­
