                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Steven H.,

                                                                                      FILED
Petitioner Below, Petitioner,                                                     January 11, 2016

                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) No. 15-0259 (Randolph County 13-C-52)                                          OF WEST VIRGINIA


David Ballard, Warden,

Mt. Olive Correctional Center,

Respondent Below, Respondent



                              MEMORANDUM DECISION
       Petitioner Steven H., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Randolph County’s February 23, 2015, order denying his amended second petition for post-
conviction habeas corpus relief.1 Respondent David Ballard, Warden, Mt. Olive Correctional
Center, by counsel Laura Young, filed a response in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in finding that petitioner’s first habeas
counsel was not constitutionally ineffective.

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

       In 1996, petitioner was convicted by a jury of three counts of third-degree sexual assault,
four counts of incest, one count of second-degree sexual assault, and four counts of sexual abuse
by a parent, guardian, or custodian for acts committed against a male child (“the victim”). In
December of that year, petitioner was sentenced to a cumulative prison term of twenty-six to
seventy-five years. In 1997, this Court refused petitioner’s direct appeal of that conviction and
sentence.

        In 2000, petitioner, pro se, filed his first petition for writ of habeas corpus (Case No. 01­
C-278), which was summarily denied, without prejudice, as insufficiently pled. In 2001,
petitioner, pro se, refiled his habeas petition. The circuit court appointed attorney Dennis Willett

       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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State
v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).


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as petitioner’s habeas counsel. In 2002, petitioner, by counsel Mr. Willett, moved for leave to
amend petitioner’s pro se habeas petition, and the circuit court granted that motion. At a
subsequent status conference held later in 2002, the circuit court inquired as to why an amended
habeas petition was not yet filed. Mr. Willet informed the circuit court that he sent a copy of a
drafted amended petition to petitioner, who had not returned it. The circuit court dismissed the
habeas action with leave to re-file finding that petitioner had voluntarily abandoned his habeas
action at that time.

        In 2004, petitioner sent a letter to the circuit court to inquire about the status of his habeas
action. The circuit court reinstated the habeas action to “resolve these issues.” In December of
2005, petitioner, by Mr. Willett, filed an amended habeas petition alleging constitutional
violations based on (1) ineffective assistance of trial counsel, James E. Hawkins; (2) the trial
court’s ruling that allowed the State to introduce evidence of petitioner’s alleged past sexual
activity; (3) excessive sentence; (4) the trial court’s denial of petitioner’s motion for an expert to
potentially combat the State’s psychological expert; (5) defective indictment where the victim
was incorrectly listed as the wrong gender; (6) petitioner’s warrantless, public arrest; (7) threats
made by the State to victim’s mother, who was also petitioner’s wife, that if she changed her
story to help petitioner that she could be guilty of a crime and lose her child, the victim herein;
(8) the trial court’s ruling that allowed the State to introduce other bad act evidence against
petitioner; and (9) the evidence did not support two of the counts of third-degree sexual assault.
As to his ineffective assistance claim, petitioner argued that his trial counsel failed to properly
meet with and advise him, failed to explain the law and possible defenses to him, failed to
properly consider his mental and emotional state, and failed to properly investigate the matter
before trial.

         On January 23, 2007, the circuit court held an omnibus evidentiary hearing on
petitioner’s amended habeas petition. Petitioner testified on his own behalf. The victim’s mother
testified that she felt threatened by prosecutors not to change her story at trial, although she could
not remember any specific statement or threat made by either of the two prosecutors who spoke
with her prior to trial. She further testified that she did not remember what she testified about at
petitioner’s trial, which was eleven years before. The lead prosecutor, David Hart, testified that
he did not threaten the victim’s mother. Following limited testimony from petitioner’s trial
counsel, the circuit court stopped the proceedings and continued the habeas hearing for
petitioner’s trial counsel to review his file. The habeas hearing resumed on February 27, 2007, at
which time petitioner’s trial counsel testified in opposition to petitioner’s claims. At the
conclusion of that hearing, the circuit court denied petitioner’s habeas petition. Later that year,
this Court refused petitioner’s appeal of that ruling.

        In April of 2013, petitioner, pro se, filed a second habeas petition in the circuit court
(Case No. 13-C-52). Thereafter, the circuit court appointed counsel for petitioner’s second
habeas action, and an amended second habeas petition was filed by present counsel in which
petitioner solely alleged ineffective assistance of his first habeas counsel.

         In January of 2015, the circuit court held an omnibus evidentiary hearing on petitioner’s
amended second habeas petition. Petitioner’s first habeas counsel, Mr. Willett, and petitioner
testified. Petitioner argued that Mr. Willett unnecessarily delayed the first habeas proceeding for

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several years, which constituted ineffective assistance of habeas counsel and prejudiced him
because, at the first habeas hearing, one of petitioner’s witnesses failed to remember much of the
underlying trial. For his part, Mr. Willett testified that petitioner failed to sign and return the
amended petition, which caused the dismissal and delay of the proceedings for approximately
two years. Therefore, based on Mr. Willett’s testimony, respondent argued that petitioner himself
was responsible for much of the delay in his first habeas proceeding. Petitioner rebutted this
contention by claiming that he had signed and returned the amended petition the day after he
received it.

        By order entered on February 23, 2015, the circuit court denied petitioner’s amended
second habeas petition. In that order, the circuit court found that Mr. Willett was not deficient in
representing petitioner when the years of delay at issue were caused by petitioner’s failure to
sign and return the amended petition, which in turn caused the case to be dismissed. Moreover,
the circuit court found that if Mr. Willett was deficient in causing a delay in the proceedings,
there was no reasonable likelihood that the outcome of the proceedings would have been
different but for that delay. This appeal followed.

          We review the circuit court’s order in a habeas action under the following standard of
review:

                  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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

        On appeal, petitioner assigns error to the circuit court’s finding that Mr. Willett was not
constitutionally ineffective for causing several years of delay in his first habeas proceeding. With
respect to our review of a claim of ineffective assistance of counsel, we have held as follows:

                 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). We have also explained that
“[a]n appellate court may not decide the credibility of witnesses or weigh evidence as that is the
exclusive function and task of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461
S.E.2d 163, 175 n .9 (1995). Indeed, “where there is a conflict of evidence between defense
counsel and the defendant, the circuit court’s findings will usually be upheld.” State ex rel.
Daniel v. Legursky, 195 W.Va. 314, 327, 465 S.E.2d 416, 429 (1995).



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         In this case, the circuit court heard conflicting testimony as to the cause of much of the
delay in petitioner’s first habeas proceeding. Mr. Willett testified that petitioner’s inaction in
failing to sign and return the amended petition caused years of the delay at issue, while petitioner
testified that he did not fail to act in signing and returning the amended petition. As explained
above, this Court will not decide the credibility of witnesses or the weight of evidence. The
circuit court properly considered the witnesses and evidence and found that petitioner’s delay
could not solely be attributable to Mr. Willett. Therefore, the circuit court properly found that
Mr. Willett’s performance was not constitutionally deficient.

       Further, we have held that

               [i]n deciding ineffective of assistance claims, a court need not address
       both prongs of the conjunctive standard of Strickland v. Washington, 466 U.S.
       668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.Va. 3,
       459 S.E.2d 114 (1995), but may dispose of such a claim based solely on a
       petitioner’s failure to meet either prong of the test.

Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995). As noted by
the circuit court in its final order in this matter, petitioner failed to prove that there is a
reasonable probability that, but for the delay, the result of the proceedings would have been
different. While it is true that the victim’s mother could not remember her testimony at trial, she
was able to relay her allegations of implied threats by the State to the circuit court at the habeas
hearing. It is not reasonably probable that the outcome of the proceedings would have been
different had the victim’s mother recalled her trial testimony more clearly. Even if we assume
that Mr. Willett’s performance was deficient, petitioner fails to satisfy the second prong of the
Strickland test. Therefore, based on those reasons, we find no merit to petitioner’s assignment of
error on appeal.

       For the foregoing reasons, we affirm the circuit court’s February 23, 2015, order.

                                                                                         Affirmed.

ISSUED: January 11, 2016

CONCURRED IN BY:

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




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