                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


Donald Wayne Holmes,
Petitioner Below, Petitioner                                                        FILED
                                                                                    April 16, 2013
vs) No. 12-0323 (Harrison County 10-C-474)                                     RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden, Mount Olive Correctional Complex,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

       Petitioner Holmes’s appeal, filed by counsel Scott S. Radman, arises from the Circuit
Court of Harrison County, wherein petitioner’s petition for writ of habeas corpus was denied by
order entered on February 14, 2012. Respondent Ballard, by counsel Scott E. Johnson, filed a
response in support of the circuit court’s decision.

       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.

        Following a jury trial in May of 2009, petitioner was convicted of four counts of second
degree sexual assault and one count of abduction. The State subsequently filed an information
for recidivism, based on petitioner’s prior felony convictions, and a separate jury found that
petitioner was the same person who was convicted of the named prior felonies. At sentencing,
the circuit court enhanced petitioner’s sentence in accordance with the recidivist statute and
sentenced petitioner to life in prison for his first count of sexual assault, ten to twenty-five years
in prison for his second count of sexual assault to run consecutively to his life sentence, ten to
twenty-five years for the third count of sexual assault to run concurrently to his sentence from
count two, ten to twenty-five years in prison to run concurrently to the sentence from count three,
and three to ten years in prison to run consecutively with the terms of imprisonment imposed in
counts two through four. Petitioner’s direct appeal of his convictions was refused by this Court in
2010. Petitioner subsequently petitioned for writ of habeas corpus in circuit court. Following an
omnibus evidentiary hearing on this petition, the circuit court entered its thirty-seven-page order
denying petitioner habeas corpus relief. In the petition below, petitioner raised several different
arguments. On appeal, however, petitioner argues only one assignment of error that his trial
counsel was ineffective.

        Petitioner Holmes argues that the circuit court erred in finding that his trial counsel did
not provide ineffective assistance of counsel because his trial counsel failed to hire an
investigator and failed to adequately investigate the case prior to trial. In support, petitioner
argues that his trial counsel’s lack of pre-trial preparation prejudiced the outcome of his



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proceedings. In response, Respondent Warden Ballard argues that the circuit court properly
found that petitioner did not meet his burden to prove ineffective assistance of counsel.
Respondent argues that trial counsel testified at the omnibus evidentiary hearing that he did not
find some of the witnesses’ statements helpful for trial. Moreover, respondent asserts that
petitioner has failed to show what effect, if any, other statements by the State’s witnesses would
have had on petitioner’s trial.

       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).

       The following standard is applied to claims concerning ineffective assistance of counsel:

       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.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Our review of the record
uncovers no error by the circuit court in denying habeas corpus relief to petitioner based on his
argument concerning ineffective assistance of counsel. The circuit court’s order reflects its
thorough analysis of the performance by petitioner’s trial counsel. Having reviewed the circuit
court’s “Final Order Denying Petitioner’s Amended Petition for Writ of Habeas Corpus
Following Omnibus Hearing” entered on February 14, 2012, we hereby adopt and incorporate
the circuit court’s well-reasoned findings and conclusions as to the assignment 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.2

       For the foregoing reasons, we affirm.

1
  The circuit court addressed petitioner’s arguments concerning ineffective assistance of counsel
on pages eighteen through twenty-three and twenty-five through twenty-six of its order denying
habeas corpus relief.
2
   Because this case involves sensitive facts, we have redacted the circuit court order to protect
the victim’s identification, using only initials to reference her and her family members. See 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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                                       Affirmed.


ISSUED: April 16, 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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