Brian M. v. Ames, Superintendent

STATE OF WEST VIRGINIA FILED

SUPREME COURT OF APPEALS May 20, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

Brian Morgan, OF WEST VIRGINIA

Petitioner Below, Petitioner

vs.) No. 20-0522 (Jackson County 19-C-33)

Donnie Ames, Superintendent,

Mount Olive Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Brian Morgan, self-represented litigant, appeals the April 16, 2020, order of the

Circuit Court of Jackson County denying his petition for writ of habeas corpus. Respondent Donnie

Ames, Superintendent of Mount Olive Correctional Complex, by counsel Gordon L. Mowen, II,

filed a response in support of the circuit court’s order. Petitioner filed a reply.

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.

In 2007, petitioner was indicted on five counts of first-degree sexual assault and ten counts

of possession of child pornography. All fifteen counts related to a pattern of sexual contact

petitioner had with a minor relative. The trial court appointed D.W. Bostic to represent petitioner

in the criminal proceeding. Following a competency evaluation of petitioner by psychiatrist Dr.

Ralph S. Smith, Jr., through which Dr. Smith determined that petitioner was criminally responsible

and competent to stand trial, petitioner’s case proceeded to a jury trial. At the conclusion of the

trial, the jury found petitioner guilty on each count in the indictment.

After the trial, the trial court entered an order directing that petitioner undergo a pre-

sentence sex offender evaluation (“SOE”) to assist the court in determining petitioner’s eligibility

for probation. The evaluation was conducted by Dr. Smith. In his report, Dr. Smith concluded:

ASSESSMENT AND OPINION: In my opinion, the defendant is not a

suitable candidate for outpatient sex offender counseling. He denies the acts for

which he has been convicted. He has serious paraphilic problems necessitating

1

treatment eventually, but only in an institutional setting. He would need medication

to diminish his sexual drive along with intense treatment over a long period of time

for his various paraphilic problems. The deviant sexual drive he has is intense and

could be dangerous to children.

He will need continued treatment for his adjustment problems.

During petitioner’s sentencing hearing, Mr. Bostic argued:

Mr. Morgan would like for me to argue for probation. I have explained to

him that under the law, the report from the doctor disallows probation in this

particular case. Specifically, by law, but I’m asking you anyway.

So I’m asking the [c]ourt to ignore West Virginia law, basically, and place

Mr. Morgan on probation. I’m asking the [c]ourt to consider the year he’s spent

locked up to be punishment enough. I’m asking the [c]ourt to consider home

confinement, even though, again, I know that I am asking the [c]ourt to do

something that the law does not specifically allow the [c]ourt to do, because Mr.

Morgan believes he can be a success on home confinement[.]

Upon consideration of Dr. Smith’s SOE report and the pre-sentence investigation report, the trial

court entered an order sentencing petitioner to a combined term of thirty-four to seventy-four years

of incarceration for his convictions.

Petitioner appealed his convictions. Mr. Bostic represented petitioner in his appeal. By

order entered on October 29, 2009, this Court refused the appeal.

In 2010, petitioner filed a petition for writ of habeas corpus in the Circuit Court of Jackson

County. The circuit court appointed Matthew Victor to represent petitioner in the habeas corpus

proceeding, and Mr. Victor filed an amended petition on petitioner’s behalf (the “10-C-67

petition”). In the 10-C-67 petition, petitioner alleged he was

being held unlawfully due to “ineffective assistance of counsel at, practically, every

stage of the proceedings” that resulted in the following:

a. the conviction was obtained because [Mr. Bostic] failed to seek and

secure an independent mental competency, criminal responsibility and diminished

capacity evaluation of the Petitioner;

....

f. Dr. Ralph Smith should not have conducted the competency and criminal

responsibility evaluation, and the post-trial report contemplated by WV Code § 62–

12–2(e);

....

2

i. the conviction was obtained because the Petitioner’s trial counsel made

no attempt to interview the victim; [and]

....

k. the conviction was obtained because the Petitioner’s trial counsel

introduced an additional assault upon the victim at the victim’s grandmother’s

residence[.]

Morgan v. Ballard, No. 11-1677, 2013 WL 149602, at *4-5 (W. Va. Jan. 14, 2013) (memorandum

decision).

On June 28, 2010, the circuit court conducted a hearing on petitioner’s Losh list, 1 and

petitioner appeared for that hearing by videoconference. During the hearing,

Petitioner testified that he met with his counsel, Mr. Victor, and discussed the

amended petition. After the [c]ourt and Mr. Victor made inquiry of the Petitioner,

the [c]ourt found that the Petitioner was fully advised of his rights regarding the

omnibus hearing process, and with advice of counsel, he voluntarily, intelligently,

and knowingly waived all habeas grounds not contained in the [] amended petition

for writ of habeas corpus prepared by Mr. Victor. Specifically, Petitioner

understood that the grounds not raised in the amended petition, addressed during

the Losh hearing, were forever waived and relinquished by the Petitioner.

Morgan, 2013 WL 149602, at *4.

At a subsequent hearing, petitioner advised the circuit court that he would not call any

witnesses or present any new evidence in support of his amended petition at his upcoming omnibus

evidentiary hearing. The omnibus hearing began in February of 2011. Despite the circuit court

having entered a transport order, petitioner was not transported to the courthouse for the hearing.

The following exchange took place between the circuit court and counsel for the parties:

THE COURT: . . . Well, Mr. Bostic is here, Mr. Victor. You want your

client to testify by teleconferencing?

....

MR. VICTOR: . . . There may be -- there may be, you know, an issue of

him trying to communicate with me somehow during the proceedings or whatnot,

and I don’t know that can be accommodated by teleconference, but I would really

like to -- after two or three continuances, I really would like to move this thing

along.

1

Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).

3

THE COURT: Well, the least that’s going to happen today is Mr. Bostic is

going to testify.

....

THE COURT: So you do not want to present your case today?

MR. VICTOR: Right. I -- right. I would reserve that right. But since Mr.

Bostic is here --

....

MR. WILLIAMS [State’s counsel]: Your Honor, I don’t want to run Mr.

Bostic up and down the interstate, so I’m inclined to call Mr. Bostic, but Mr. Victor

has made an interesting point, and that would be that his client might want to

whisper something in his ear while we’re doing examination of Mr. Bostic, and I

think, you know, that’s kind of a valid point. Certainly --

....

THE COURT: [] [T]here are allegations made about the mental capacity of

Brian Morgan, but if it’s true, would suggest to the Court he would be very little

aid to counsel.

So, you know, as far as I’m concerned, we’re going to go ahead with it.

....

THE COURT: If the petitioner wants additional questions asked,

supposedly, you could have him come back or you could have him --

MR. WILLIAMS: Telephonically?

THE COURT: Perhaps. Or you could do a -- send him questions to answer

under oath.

MR. VICTOR: Your Honor, I’m willing to do that. And I will ask that any

transcript of Mr. Bostic’s testimony be prepared so I can go over this with Mr.

Morgan.

The circuit court proceeded by hearing the testimony of Mr. Bostic. It is undisputed that

Mr. Victor cross-examined Mr. Bostic at length. Following Mr. Bostic’s testimony, the circuit

court continued the hearing to give petitioner the opportunity to appear in person and testify. On

April 6, 2011, petitioner appeared before the circuit court in person, at which time he again advised

the court that he was choosing not to testify.

Ultimately, the circuit court entered a final order denying the 10-C-67 petition.

4

Specifically, with regard to the retention of Dr. Smith to conduct a criminal responsibility

examination and to prepare a post-trial report, the circuit court determined that Dr. Smith was an

independent, unbiased, qualified forensic evaluator and that it was appropriate for Dr. Smith to

prepare the post-trial report. See Morgan, 2013 WL 149602, at *10, *20.

Petitioner appealed the circuit court’s final order to this Court. On appeal, petitioner re-

alleged the grounds for relief set forth in the 10-C-67 petition. By memorandum decision, this

Court affirmed the circuit court’s order denying the 10-C-67 petition, adopting the circuit court’s

“well-reasoned findings and conclusions as to the assignments of error raised in this appeal.”

Morgan, 2013 WL 149602, at *2.

About six months later, petitioner filed a petition for habeas corpus in the United States

District Court for the Southern District of West Virginia. Therein, he again raised, among other

things, the issue of whether Mr. Bostic was ineffective by permitting Dr. Smith to prepare the post-

trial SOE report. See Morgan v. Ballard, No. 2:13-20212, 2014 WL 4629413, at *3 (S.D. W. Va.

Aug. 12, 2014). By memorandum opinion and order, the district court ruled against petitioner and

dismissed the entire case. See Morgan v. Ballard, No. 2:13-cv-20212, 2014 WL 4629584, at *2

(S.D. W. Va. Sept. 15, 2014).

On May 1, 2019, petitioner, who was at the time self-represented, filed a petition for writ

of habeas corpus in the Circuit Court of Jackson County. Later that month, the circuit court entered

an order summarily dismissing some of the claims in the petition on the basis that the claims had

either been finally adjudicated or intelligently and knowingly waived in the prior habeas

proceeding. 2 As for the remaining claims, the circuit court appointed Paul Knisley to represent

petitioner and directed Mr. Knisley to file an amended petition on petitioner’s behalf. The circuit

court also denied petitioner’s request to “expand the record through a post conviction

psychological evaluation,” but the court gave counsel leave to file a similar motion “pursuant to

any applicable law if warranted.”

As directed by the circuit court, Mr. Knisley filed an amended habeas corpus petition (the

“19-C-33 petition”) on behalf of petitioner. The 19-C-33 petition asserted that petitioner received

ineffective assistance of counsel from Mr. Victor when Mr. Victor failed to ask the circuit court

for a retrospective competency determination to ascertain whether petitioner was competent to

stand trial, when Mr. Victor permitted the omnibus hearing to take place without petitioner, and

when Mr. Victor “never offered evidence in the form of a proposed order.” The 19-C-33 petition

also requested that petitioner be permitted to participate in a “retrospective competency

2

Specifically, the circuit court summarily dismissed petitioner’s claims that Mr. Victor

provided ineffective assistance of counsel because he did not allege Mr. Bostic failed to seek

mitigation evidence before trial, that Mr. Victor was ineffective because he did not allege Mr.

Bostic failed to prepare petitioner to testify at trial, and that Mr. Bostic failed to request a second

competency evaluation.

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evaluation” to determine whether he was indeed competent to stand trial. 3

About one month after the 19-C-33 was filed, petitioner, on his own behalf, filed a motion

to file pro se issues and an amended petition for writ of habeas corpus (“pro se petition”). In the

motion, he claimed that Mr. Knisley had refused to submit a brief and appendix prepared by

petitioner; that Mr. Knisley failed to submit the issue of a “due process violation which centers

around the prosecutions [sic] failure to file a pleading to have Petitioner declared a violent predator

prior to denying him probation eligibility”; and that Mr. Victor had indeed submitted an extensive

proposed order in the prior habeas proceeding, despite the assertion to the contrary in the 19-C-33

petition. Petitioner asked the circuit court to “consider his pro se issues” and “at the very least . . .

make a finding of fact and conclusions of law on those issues.” In the pro se petition, petitioner

asserted three assignments of error. 4

By order entered on April 16, 2020, the circuit court denied the 19-C-33 petition filed by

Mr. Knisley without a hearing. The circuit court found that the proceedings involving petitioner’s

first request for habeas corpus relief were res judicata as to all the issues petitioner had raised in

his motion to file pro se issues and pro se petition to the extent that they were not already addressed

in the 19-C-33 petition. The circuit court went on to find that the remaining issues, all of which

were asserted in the 19-C-33 petition, involved the alleged ineffective assistance of Mr. Victor.

On the issue of a retrospective competency evaluation, the circuit court concluded that

petitioner’s claim on this issue failed to satisfy the first prong of the Strickland test 5 because

petitioner had not shown that “Mr. Victor’s performance was deficient under an objective standard

of reasonableness.” With regard to petitioner’s claim that Mr. Victor’s assistance was ineffective

because Mr. Victor failed to submit a proposed final order to the Court, the circuit court found that

the record did not support the claim.

Finally, with regard to petitioner’s claim that Mr. Victor’s representation was ineffective

because he proceeded with the omnibus hearing without petitioner being present, the circuit court

determined that, pursuant to Thomas v. Leverette, 161 W. Va. 224, 239 S.E.2d 500 (1977), and

Smith v. Mirandy, No. 12-0374, 2013 WL 6184038 (W. Va. Nov. 26, 2013) (memorandum

decision), petitioner did not need to be present at the hearing because he was represented by

counsel and because his testimony was not required at that hearing. The circuit court found that

although petitioner claimed the outcome of the 10-C-67 petition would have been different had he

been present at the hearing on February 14, 2011, petitioner had not “suggested a single substantive

question or objection Mr. Victor could have or should have made[] or otherwise suggested how

Petitioner’s case was hindered by his absence.” The circuit court also noted that prior to the hearing

3

With regard to the request for a retrospective competency evaluation, petitioner now

asserts in this appeal that “[t]his issue is, without a doubt, the most ridiculous issue ever presented

in a case where competency was determined prior to trial.”

4

The assignments of error in the pro se petition are identical to the assignments of error

asserted in this appeal. See infra note 6.

5

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

6

on February 14, 2011, petitioner had advised the court that he did not intend to testify, that he

ultimately did not testify, and that the hearing in February of 2011 was not the only evidentiary

hearing. The circuit court concluded:

[E]ven if it was “deficient under an objective standard of reasonableness” for Mr.

Victor to “permit” the February 14, 2011, hearing to proceed without petitioner—

which this [c]ourt explicitly does not find—there is no reasonable probability that,

but for Mr. Victor’s actions, the result of the proceedings would have been

different.

Consequently, the circuit court determined that petitioner was not entitled to judgment on any of

his claims, it denied the 19-C-33 petition and the motion to file pro se issues, and it dismissed the

case.

Petitioner now appeals the circuit court’s April 16, 2020, order to this Court. We review

the denial of a habeas corpus petition 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.” Syl. Pt. 1, Mathena v. Haines, 219 W. Va.

417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). “On an appeal to this Court

the [petitioner] bears the burden of showing that there was error in the proceedings below resulting

in the judgment of which he complains, all presumptions being in favor of the correctness of the

proceedings and judgment in and of the [lower] court.” Syl. Pt. 2, Perdue v. Coiner, 156 W. Va.

467, 194 S.E.2d 657 (1973).

In that this appeal involves the second petition for habeas corpus filed by petitioner in the

circuit court, we observe that

[a] prior omnibus habeas corpus hearing is res judicata as to all matters

raised and as to all matters known or which with reasonable diligence could have

been known; however, an applicant may still petition the court on the following

grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing;

newly discovered evidence; or, a change in the law, favorable to the applicant,

which may be applied retroactively.

Syl. Pt. 4, Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981). Herein, petitioner claims

that he received ineffective assistance from his trial counsel, Mr. Bostic, and his habeas counsel,

7

Mr. Victor, resulting in the violation of his rights under various provisions of the Constitution of

the United States and the Constitution of West Virginia. 6

Petitioner alleges that Mr. Bostic’s performance was deficient because Mr. Bostic failed to

adequately investigate and prepare petitioner’s case for trial and sentencing, failed to question the

victim or the victim’s stepmother before the trial, failed to adopt a tenable trial strategy, failed to

convey commitment to petitioner’s case by eliciting an uncharged act of sexual assault upon the

victim during the trial, and failed to object to the trial court’s selection of Dr. Smith to perform the

SOE after Dr. Smith had performed petitioner’s initial competency examination. Petitioner has not

asserted that he was unaware of these alleged deficiencies in his prior habeas proceeding or that

he could not have known of these deficiencies with the exercise of reasonable diligence in his prior

habeas proceeding. Indeed, our decision affirming the denial of petitioner’s first habeas corpus

petition reveals that some of the claimed deficiencies were known by petitioner and raised in his

first habeas corpus proceeding. Upon our examination of the issues that were not raised in the prior

habeas proceeding, we find that petitioner should have known of those issues, through the exercise

of reasonable diligence, at the time he filed his first habeas corpus petition. Consequently, we find

that the alleged deficiencies concerning Mr. Bostic’s performance were either finally adjudicated

through the first habeas action or intelligently and knowingly waived during the hearing on June

28, 2010. The necessary result of these findings is that petitioner’s prior habeas corpus proceeding

is res judicata as to the claimed deficiencies in Mr. Bostic’s performance. Therefore, we determine

that, in the present habeas corpus proceeding, the circuit court did not err by summarily dismissing

petitioner’s claims as to Mr. Bostic’s performance.

6

Although petitioner dedicates a portion of his brief to his argument concerning Mr.

Bostic’s representation, petitioner’s three assignments of error focus on Mr. Victor’s

representation. The assignments of error are as follows:

1. Habeas counsel was ineffective in that he[] (1) waived petitioner’s

presence during the testimony of his trial counsel at the omnibus habeas corpus

proceeding, and (2) failed to object to a sentencing predicated on a sex offender

evaluation that did not contain the mandatory ongoing treatment plan, all in

violation of petitioner’s rights under the Sixth and Fourteenth Amendments of the

United States Constitution, and under [the] West Virginia Constitution, Article

Three, Sections Five, Ten, and Fourteen.

2. Habeas counsel was ineffective in waiving the petitioner’s presence

during the habeas hearing, in violation of the petitioner’s rights under the

confrontation and due process clauses of the sixth and fourteenth amendments of

the United States Constitution.

3. Habeas counsel was ineffective in failing to raise the court’s due process

violation under amendments sixth [sic] and fourteen of the United States

Constitution, by denying the petitioner eligibility for probation even though he met

the criteria.

8

Turning now to the performance of Mr. Victor, we observe that petitioner claims Mr.

Victor’s assistance was ineffective because Mr. Victor waived petitioner’s presence at the omnibus

hearing, failed to allow petitioner the right to testify during the omnibus hearing, and failed to offer

argument as to the use of the “flawed” SOE report in petitioner’s sentencing. As this claim involves

the alleged ineffective assistance of petitioner’s counsel at the prior omnibus hearing, the claim,

unlike petitioner’s claim as to Mr. Bostic’s performance, is not barred by the doctrine of res

judicata.

With regard to ineffective assistance of counsel claims, this Court has held:

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). Petitioner must satisfy both prongs

of this test to be entitled to relief. See id. In reviewing counsel’s performance under this two-

pronged test,

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 [petitioner’s] counsel’s strategic

decisions. Thus, a reviewing court asks whether a reasonable lawyer would have

acted, under the circumstances, as [petitioner’s] counsel acted in the case at issue.

Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6, in relevant part.

Our scrutiny of counsel’s performance is “highly deferential.” Id. at 16, 459 S.E.2d at 127

(quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). “When assessing whether counsel’s

performance was deficient, we ‘must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance[.]’” Id. at 15, 459 S.E.2d at 126

(quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). We apply the rule of contemporary

assessment when evaluating counsel’s performance, examining counsel’s actions “according to

what was known and reasonable at the time [counsel] made his or her choices.” Syl. Pt. 4, in part,

State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).

We first address petitioner’s assertion that Mr. Victor’s performance was “clearly

deficient” because Mr. Victor waived petitioner’s presence at the omnibus hearing. Petitioner

alleges that Mr. Victor permitted the prosecutor and the circuit court to pressure him into waiving

petitioner’s right to be present, and that had petitioner been present, petitioner would have been

able to pose questions or argument during the questioning of Mr. Bostic. Petitioner asserts that the

circuit court made a competency determination concerning petitioner’s ability to assist Mr. Victor

during the hearing and that petitioner was entitled to be present when the court made that

9

determination. Petitioner also contends that although curative measures were discussed during the

omnibus hearing, they “were not followed up on.” Lastly, petitioner argues that his exclusion from

the hearing violated his Sixth Amendment confrontation right and the Fourteenth Amendment and

denied him his right to a full and fair hearing under West Virginia Code § 53-4A-1(b). 7

We find no merit, under either prong of the Strickland/Miller test, to petitioner’s argument

concerning his absence from the omnibus hearing during the questioning of Mr. Bostic. The Sixth

Amendment to the Constitution of the United States provides, “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.

amend. VI (emphasis added). “The Fourteenth Amendment renders [this right] binding on the

States.” Michigan v. Bryant, 562 U.S. 344, 352, 131 S.Ct. 1143, 1152 (2011). As we explained in

Perdue, a habeas corpus “proceeding is civil in nature, not criminal.” 156 W. Va. at 468, 194

S.E.3d at 659; see also W. Va. Code § 53-4A-1(a), in relevant part (“All proceedings in accordance

with this article shall be civil in character and shall under no circumstances be regarded as criminal

proceedings or a criminal case.”). Accordingly, because habeas corpus proceedings are not

criminal prosecutions, the Sixth Amendment right to confrontation does not attach in habeas

corpus proceedings. Moreover, although petitioner argues that his exclusion from the hearing

violated the Fourteenth Amendment, he provides no explanation as to how his rights under this

amendment were violated or any law in support of the argument. We have repeatedly recognized

that “[a] skeletal ‘argument’, really nothing more than an assertion, does not preserve a claim. . . .

Judges are not like pigs, hunting for truffles buried in briefs.” State, Dep’t of Health and Human

Res. ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833

(1995) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Here, petitioner has

failed to demonstrate that his absence from the habeas corpus proceeding violated his Sixth

Amendment or Fourteenth Amendment rights. Accordingly, we must conclude that Mr. Victor’s

performance was not deficient for failing to advance those rights in the first habeas proceeding.

Indeed, this Court has previously recognized that “there is no requirement that the petitioner be

present at all stages of the habeas corpus hearing.” Thomas, 161 W. Va. at 227 n.1, 239 S.E.2d at

502 n.1.

While petitioner argues he did not receive a full and fair omnibus hearing, the facts of this

case clearly demonstrate that he did, despite being absent during the questioning of Mr. Bostic.

7

West Virginia Code § 53-4A-1(b) provides:

For the purposes of this article, a contention or contentions and the grounds

in fact or law relied upon in support thereof shall be deemed to have been previously

and finally adjudicated only when at some point in the proceedings which resulted

in the conviction and sentence, or in a proceeding or proceedings on a prior petition

or petitions filed under the provisions of this article, or in any other proceeding or

proceedings instituted by the petitioner to secure relief from his conviction or

sentence, there was a decision on the merits thereof after a full and fair hearing

thereon and the time for the taking of an appeal with respect to such decision has

not expired or has expired, as the case may be, or the right of appeal with respect

to such decision has been exhausted, unless said decision upon the merits is clearly

wrong.

10

There is no dispute that Mr. Victor cross-examined Mr. Bostic at length and that the omnibus

hearing was continued following Mr. Bostic’s testimony to permit petitioner to appear in person

to testify. Petitioner appeared in person at the subsequent hearing, and there is no indication in the

appendix record that petitioner advised the circuit court at that time that he was unaware of what

had transpired at the prior hearing, that he was dissatisfied with his counsel’s cross-examination

of Mr. Bostic, or that he desired to ask more questions of Mr. Bostic. Although petitioner argues

on appeal that, had he been present at the first omnibus hearing, he could have assisted Mr. Victor

by posing questions or argument during that hearing, petitioner has not mentioned a single question

or argument he would have posed or how his presence would have changed the outcome of the

proceeding. Furthermore, petitioner’s argument that he was entitled to be present because the

circuit court made a competency determination at the hearing is not borne out of the transcript of

the hearing; circuit court merely observed that petitioner might not be of any assistance to Mr.

Victor during the hearing. Consequently, we must conclude that under the specific facts of this

case, the circuit court did not err by refusing to grant petitioner relief in habeas corpus on this

ground.

Petitioner’s second assertion concerning Mr. Victor’s performance—that Mr. Victor

provided ineffective assistance by failing to allow petitioner the right to testify during the omnibus

hearing—also fails to satisfy either prong of the Strickland/Miller test. This claim is directly

contradicted by the appendix record, which shows that the omnibus hearing was continued so that

petitioner could appear in person to testify, that petitioner did appear in person at the subsequent

hearing, and that petitioner expressly declined to exercise his right to testify. Thus, Mr. Victor’s

representation, in producing petitioner in person to testify, was not deficient. Furthermore, even if

Mr. Victor’s representation was in some way deficient, petitioner has not described how the

outcome of the proceeding would have been different had he testified. Therefore, we determine

that the circuit court did not err by refusing to grant petitioner relief in habeas corpus on this

ground.

In his third assertion concerning Mr. Victor’s performance, petitioner argues that Mr.

Victor provided ineffective assistance because Mr. Victor failed to identify the due process

violation that occurred when petitioner was sentenced pursuant to a SOE report that did not contain

an ongoing treatment plan. He argues that West Virginia Code § 62-12-2(e) requires that an SOE

report contain an ongoing treatment plan and that the SOE report prepared by Dr. Smith did not

include one, depriving the trial court of jurisdiction to sentence petitioner. Petitioner also argues

that Dr. Smith was not permitted to make a decision as to whether petitioner received probation.

Petitioner contends that Mr. Bostic allowed the flawed report to be used in petitioner’s sentencing

and that, but for the circuit court’s consideration of the SOE report, petitioner would have been

eligible for probation. Petitioner asserts that, by failing to offer any argument concerning this due

process violation, Mr. Victor provided petitioner with ineffective assistance of counsel and

violated a panoply of petitioner’s constitutionally protected rights.

West Virginia Code § 62-12-2(a) (2006) provides that “[a]ll persons who are found guilty

of or plead guilty to any felony, the maximum penalty for which is less than life imprisonment, . .

. shall be eligible for probation, notwithstanding the provisions of [W. Va. Code §§ 61-11-18 to -

11

19].” 8 Where a person is found guilty of certain crimes, including those for which petitioner was

convicted, West Virginia Code § 62-12-2(e) conditions eligibility for probation on “undergoing a

physical, mental and psychiatric study and diagnosis which shall include an on-going treatment

plan requiring active participation in sexual abuse counseling at a mental health facility or through

some other approved program.” W. Va. Code § 62-12-2(e).

We have held that “[p]robation is a matter of grace and not a matter of right.” Syl. Pt. 3,

State v. Jones, 216 W. Va. 666, 610 S.E.2d 1 (2004) (quoting State v. Rose, 156 W. Va. 342, 192

S.E.2d 884 (1972); see also Syl. Pt. 2, State ex rel. Strickland v. Melton, 152 W. Va. 500, 165

S.E.2d 90 (1968) (“Probation is not a sentence for a crime but instead is an act of grace upon the

part of the State to a person who has been convicted of a crime.”). Accordingly, an individual who

may be eligible for probation pursuant to the West Virginia Code § 62-12-2 is not entitled to

probation. See State v. Loy, 146 W. Va. 308, 318, 119 S.E.2d 826, 832 (1961) (“[A] defendant

convicted of a crime has no absolute right to probation”). Because no criminal defendant is entitled

to probation upon conviction, a defect with regard to the preparation of an SOE cannot give rise

to a due process violation. See Christopher H. v. Martin, 241 W. Va. 706, 710, 828 S.E.2d 94, 98

(2019) (“Christopher H. has not demonstrated a deprivation of due process insofar as probation,

the alternative sentence that he might have received had he undergone a sex offender evaluation,

is not guaranteed, but, rather, is solely a matter of grace within the circuit court’s discretion.”).

Having considered petitioner’s argument that Mr. Victor’s performance was deficient as to

the SOE report, we find that the argument lacks merit and fails to satisfy either prong of the

Strickland/Miller test. First and foremost, contrary to petitioner’s claim, the SOE report did contain

an ongoing treatment plan: the administration of medication to diminish petitioner’s sexual drive

and intense treatment in an institutional setting for his paraphilic problems. Furthermore, Dr.

Smith’s opinion concerning petitioner’s suitability for probation, as set forth in the SOE report,

was not prohibited by any provision of the law. In that the SOE report was prepared in conformity

with West Virginia Code § 61-12-2(e), petitioner’s argument that the trial court lacked jurisdiction

to sentence petitioner pursuant to the report must necessarily fail, 9 and Mr. Victor had no legal

obligation to advance petitioner’s meritless contention that the SOE report was not consistent with

the statute.

Second, any issue concerning Mr. Bostic’s handling of the SOE report was either

previously and finally adjudicated in favor of Mr. Bostic in the first habeas action or intelligently

and knowingly waived during the hearing on June 28, 2010. As a result, the prior habeas

proceeding, in which this Court did not find that Mr. Bostic’s representation of petitioner was

ineffective, is res judicata in this proceeding as to Mr. Bostic’s handling of the SOE report.

8

We note that West Virginia Code § 62-12-2 was amended in 2019; however, the

amendments have no impact on this case and did not change the substantive effect of the

subsections at issue in this matter.

9

Even if the SOE report was somehow deficient, we note that the trial court’s jurisdiction

to sentence petitioner was not predicated on the completion of the SOE report. Cf. Christopher H.,

241 W. Va. 706, 828 S.E.2d 94 (affirming sentence where no SOE was conducted).

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Therefore, there was no basis for Mr. Victor to challenge Mr. Bostic’s performance regarding the

SOE report.

Third, even if we determined that petitioner received ineffective representation from either

Mr. Bostic or Mr. Victor on this issue, which we expressly do not, petitioner had no due process

right to receive probation, regardless of petitioner’s eligibility for probation. Thus, his due process

rights could not have been violated by Mr. Victor’s decision not to advance petitioner’s position

concerning the SOE report.

Fourth and finally, even if petitioner received what he considered to be a favorable SOE

report, he cannot show that the outcome of the sentencing proceeding would have been different.

The crimes for which the jury convicted petitioner—first-degree sexual assault and possession of

child pornography—are categorically abhorrent. Cf. Christopher H., 241 W. Va. at 712, 828

S.E.2d at 100 (finding that the crime of sexual abuse by a parent is “in a category of the most

loathsome of crimes”). It is apparent that, given the number and severity of petitioner’s crimes, the

trial court would not have suspended petitioner’s sentence and imposed probation under any

circumstance. Cf. Christopher H., 241 W. Va. at 712, 828 S.E.2d at 100 (affirming the lower

court’s denial of a petition for writ of habeas corpus where the petitioner did not receive an SOE,

finding that the petitioner’s underlying offenses were abhorrent, and concluding that the sentencing

proceedings would not have been different had an SOE been performed). Accordingly, we

conclude that the circuit court did not err by refusing to grant petitioner relief in habeas corpus on

the ground that petitioner received ineffective assistance of counsel from Mr. Victor regarding the

SOE report.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: May 20, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

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