                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


Nathan Long,
Petitioner Below, Petitioner
                                                                                   FILED
                                                                                January 14, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 11-1342 (Harrison County 09-C-508)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

David Ballard, Warden, Mount Olive Correctional Complex,
Respondent Below, Respondent

                                  MEMORANDUM DECISION

       This appeal with accompanying appendix record, filed by counsel Perry B. Jones, arises
from the Circuit Court of Harrison County, wherein petitioner’s petition for writ of habeas
corpus was denied by order entered on August 25, 2011. Respondent Ballard, by counsel C.
Casey Forbes, filed a summary 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 Revised Rules of Appellate
Procedure.

        The Harrison County grand jury indicted petitioner on multiple counts of various sexual
offenses. During voir dire of the trial jury panel, one prospective juror voiced that he was a
cousin to the elected Harrison County Prosecuting Attorney, although the juror did not know
with certainty how distant of a cousin. An assistant prosecutor, and not the prosecuting attorney,
was handling the trial of this matter. Upon examination by the court and counsel for both sides,
the juror stated that he and the prosecutor only socialized at family reunions and that this
relationship would not cause the juror any problems or create any bias or prejudice. Defense
counsel declined to move to strike this juror for cause and also decided not to use a peremptory
strike to remove the juror. During the habeas evidentiary hearing, defense counsel testified that,
for purposes of strategy, they had preferred this juror to other prospective jurors. Among other
reasons, this juror had a prior misdemeanor conviction, which defense counsel thought might
make the juror more favorably disposed toward their case. The subject juror remained on the jury
that acquitted petitioner of six counts1 and convicted petitioner of three counts of first degree
sexual assault and six counts of sexual abuse by a parent, guardian, or custodian. Following
petitioner’s omnibus petition for habeas corpus relief, the circuit court held an evidentiary


1
    The specific charges of which petitioner was acquitted are not revealed in the record on appeal.



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hearing and subsequently entered its order denying petitioner habeas corpus relief. Petitioner
appeals this habeas order, arguing two assignments of error.2

        Petitioner first argues that the circuit court erred in concluding that petitioner failed to
prove by a preponderance of the evidence that his trial counsel were ineffective due to their
failure to move to strike for cause, or use a peremptory strike, to remove this juror. At the
evidentiary hearing on petitioner’s habeas corpus petition, both of his trial counsel testified that
they should have moved to strike this juror pursuant to Syllabus Point 4 of State v. Beckett, 172
W.Va. 817, 310 S.E.2d. 883 (1983), which states: “A potential juror closely related by blood or
marriage to either the prosecuting or defense attorneys involved in the case or to any member of
their respective staffs or firms should automatically be disqualified.” Petitioner’s trial counsel
admitted that neither were aware of this law at the time of trial. Second, petitioner argues that the
trial court itself should have sua sponte excluded this juror, and that the habeas circuit court
erred in failing to make findings concerning this issue pursuant to West Virginia Code § 53-4A­
7(c).

        In response, respondent argues that the habeas circuit court did not err in finding no
ineffective assistance of counsel pursuant to the test set forth in Syllabus Point 5 of State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Respondent argues that defense counsel properly
questioned the juror, exercising reasonable diligence to ascertain any disqualification. See Syl.
Pt. 8, State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989). Respondent argues that defense
counsel had a strategic basis for not striking the juror. Moreover, respondent argues that even if
there was deficient performance, there is no reasonable probability that had the juror been struck
that the proceedings would have been different. Respondent argues that petitioner’s acquittal of
six counts indicates that the verdict was based on the evidence, not on any alleged juror bias.
Respondent also argues that the habeas circuit court did address and reject the claim that the trial
court should have sua sponte removed the juror.

       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).

       We find that the circuit court did not abuse its discretion in denying the petition for
habeas corpus. Petitioner fails to satisfy the test set forth in Syllabus Point 5 of State v. Miller,
194 W.Va. 3, 459 S.E.2d 114 (1995), which requires a petitioner claiming ineffective assistance
of counsel to prove that “(1) [trial] [c]ounsel’s performance was deficient under an objective
2
  Although petitioner originally raised several issues in his petition for writ of habeas corpus in
circuit court, he only raises two issues on appeal, both of which concern the juror.

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standard of reasonableness; and (2) there is a reasonable probability that, but for [trial] counsel’s
unprofessional errors, the result of the proceedings would have been different.” “In deciding
ineffective of assistance claims, a court need not address both prongs of the conjunctive standard
. . . but may dispose of such a claim based solely on a petitioner’s failure to meet either prong of
the test.” Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416
(1995). The circuit court addressed the first prong of the test. Upon a review of the parties’
arguments and the record on appeal, we also determine that petitioner has not shown a
reasonable probability that the outcome would have been different had the juror been struck. We
find no abuse of discretion.

       As to whether the circuit court should have sua sponte removed the subject juror, we
recognize the following:

       A trial court's failure to remove a biased juror from a jury panel does not violate a
       defendant's right to a trial by an impartial jury as guaranteed by the Sixth and
       Fourteenth Amendments to the United States Constitution and by Section 14 of
       Article III of the West Virginia Constitution. In order to succeed in a claim that
       his or her constitutional right to an impartial jury was violated, a defendant must
       affirmatively show prejudice.

Syl. Pt. 7, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995). The petitioner has not
affirmatively shown prejudice. Moreover, a review of the final order and the transcript of the
omnibus hearing shows that the habeas court did consider, but reject, petitioner’s argument that
the court should have sua sponte removed the juror at trial.

       For the foregoing reasons, we affirm the denial of habeas corpus relief.

                                                                                          Affirmed.

ISSUED:

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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