Tex S. v. Karen Pszczolokowski, Warden

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2015 Term
FILED

October 8, 2015

No. 14-0920 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

TEX S.,

Petitioner Below, Petitioner

v.

KAREN PSZCZOLKOWSKI, Warden,

Northern Correction Facility,

Respondent Below, Respondent

Appeal from the Circuit Court of Morgan County

The Honorable Christopher C. Wilkes, Judge

Civil Action No. 13-P-16

AFFIRMED

Submitted: September 16, 2015
Filed: October 8, 2015

Kevin D. Mills, Esq. Patrick Morrisey, Esq.
Shawn R. McDermott, Esq. Attorney General
MillsMcDermott, PLLC Shannon Frederick Kiser, Esq.
Martinsburg, West Virginia Assistant Attorney General
Counsel for the Petitioner Charleston, West Virginia
Counsel for the Respondent

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.

 SYLLABUS BY THE COURT

1. “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).

2. “On an appeal to this Court the appellant 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 trial court.” Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d

657 (1973).

3. “A court having jurisdiction over habeas corpus proceedings may deny

a petition for a writ of habeas corpus without a hearing and without appointing counsel for

the petitioner if the petition, exhibits, affidavits or other documentary evidence filed

therewith show to such court’s satisfaction that the petitioner is entitled to no relief.” Syl.

Pt. 1, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).

i
 4. “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).

5. “In reviewing counsel’s performance, 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 trial counsel’s

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

acted, under the circumstances, as defense counsel acted in the case at issue.” Syl. Pt. 6,

State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

ii
Workman, Chief Justice:

This case is before the Court upon the appeal of Tex S.1 (“the Petitioner”) from

the August 22, 2014, order entered by the Circuit Court of Morgan County, West Virginia,

denying the Petitioner’s motion for reconsideration of the circuit court’s order denying his

petition for habeas corpus relief that was entered on June 6, 2014. The Petitioner argues that

the circuit court erred: 1) in failing to grant an evidentiary hearing on the habeas petition;

2) in failing to find ineffective assistance of counsel; 3) in determining that the Petitioner was

not wrongfully convicted by the introduction of scientifically invalid expert testimony that

the victim was sexually abused; and 4) in failing to grant leave for discovery regarding the

forensic testing performed by the State.2 Based upon a review of the record, the parties’

briefs and arguments, and all other matters submitted before the Court, we affirm the circuit

court’s decision.

1
Pursuant to West Virginia Rule of Appellate Procedure 40(e), we use the Petitioner’s
initials and refer to the child victim involved simply as “the victim.” See also State v.
Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
The Petitioner originally listed the Respondent as David Ballard, Warden, Mount
Olive Correctional Center. The Petitioner is now housed in the Northern Correctional
Facility, therefore, we have substituted Karen Pszczolkowski, who is the warden of that
facility. See W. Va. R. App. P. 41. Because the Petitioner’s claims stem from the underlying
trial in this matter, we refer to the Respondent simply as “the State.”

1

 I. Factual and Procedural History

A. Underlying Trial

This matter arises from the January 2, 2007, indictment of the Petitioner on one

count of sexual assault in the first degree and one count of sexual abuse by a parent or

guardian. As a backdrop to the majority of the Petitioner’s habeas claims, it is important to

explain at the outset that as result of the indictment, the Petitioner retained attorney Paul

Lane to represent him. Prior to trial, Mr. Lane was involved in a motorcycle accident and

he suffered a head injury. The West Virginia State Bar suspended his license to practice law

and appointed other local attorneys to represent his clients.3 Christopher Prezioso was

appointed to represent the Petitioner. Three months after the accident, upon a showing that

he had recovered from his injuries, Mr. Lane’s law license was reinstated,4 and he was

retained by the Petitioner to continue with his representation of the Petitioner at the

3
By order entered August 27, 2007, the Circuit Court of Jefferson County appointed
various counsel to substitute for Mr. Lane in all cases, noting that this action was being taken
“due to . . . [Mr. Lane’s] serious motorcycle accident which has rendered him currently
incapacitated and unable personally to protect the interests of his clients.” This measure
stemmed not from any lawyer disciplinary action, but through the West Virginia State Bar
Lawyer Assistance Committee due to a petition filed to limit Mr. Lane’s practice.
4
By order entered in the Circuit Court of Jefferson County on October 10, 2007, the
circuit court rescinded its August 27, 2007, order appointing various counsel to stand in for
Mr. Lane. The circuit court granted Mr. Lane’s petition to rescind the August 27, 2007,
order based upon a finding of “good cause” as Mr. Lane ”represented [to the court] that he
has been discharged from hospitalization and out-patient therapy and recovered to the extent
that he is able to return to the practice of law and to protect his client’s interests.”

2

Petitioner’s request.5

The Petitioner’s trial began on November 18, 2008, and lasted two days. The

evidence at trial showed that between the hours of 10:00 p.m. on April 6, 2006, and 5:00 a.m.

on April 7, 2006, the Petitioner was taking care of his three step-children while their mother

was working. The Petitioner’s then four-year-old stepdaughter, who is the victim, was asleep

on a couch in the living room of her home awaiting her mother’s return from work. The two

older stepsons were asleep in a bedroom that they shared, which was located in the basement

of the home. After the two older children left for school on the morning of April 7, 2006,

the victim told her mother that during the night “Tex put his pee pee in my mouth and peed

and kept it there until I swallowed.”6

5
The record demonstrates that the proceedings in the Petitioner’s case had been
continued due to the Petitioner’s desire that Mr. Lane represent him.
6
The victim, who was seven years old at the time of trial, testified. She, however,
stated that she could not recall the events in question and the trial court determined that she
was unavailable under Rule 804(a)(3) of the West Virginia Rules of Evidence. The trial
court then determined that statements made by the child to her mother and Ms. Leahy, a
nurse, were admissible under the medical treatment and present sense impression exceptions,
West Virginia Rule of Evidence 803(1) and (4), or the general catch-all exception pursuant
to the former West Virginia Rule of Evidence 804(b)(5), which is now Rule 807 of the West
Virginia Rules of Evidence (“Residual exception”).
The issue of whether the trial court properly admitted the child’s statements to her
mother and Ms. Leahy was the only error that this Court granted to hear on direct appeal.
The Court affirmed the Petitioner’s conviction by memorandum decision issued on February
11, 2011, determining that the Petitioner’s right to confront the witness against him was not
violated. See State v. Tex S., No. 35540 (W. Va. Supreme Court, February 11,
2011)(memorandum decision).

3

 The mother, who previously sustained a traumatic brain injury in a car accident,

did not immediately take the child to the hospital that day. During the day, she testified that

she struggled with what her daughter had told her. She stated that she called the pastor at

their church during the afternoon and spoke with him about it. As a result of that

conversation, later that afternoon the mother took her child to Winchester Medical Center

where the child was examined by Cynthia Leahy, a nurse who works in the hospital’s

forensic nurse program.

Ms. Leahy testified that the child told her:

I was asleep on the couch. Something came out of it and went
down my throat. It had a yucky taste. I was still asleep while he
was doing that. I remember it. I still have a yucky taste from it.
I cried this morning because I still had that taste.

Ms. Leahy also stated that she collected samples from the child’s mouth using lip swabs, oral

rinse, and floss.

Corporal Tony Link of the Morgan County Sheriff’s Department investigated

the crime. He testified that he was dispatched to Winchester Medical Center where he met

Ms. Leahy. The officer took possession of the evidence obtained from the victim by Ms.

Leahy so that forensic testing could be done. Corporal Link also contacted the Petitioner and

asked him if he would come into the Sheriff’s Department to speak to the officer about the

alleged crime. According to Corporal Link, the Petitioner voluntarily came in to speak with

4

the officer. The officer testified that he gave the Petitioner his Miranda7 rights and that the

Petitioner understood that he did not have to speak with the officer. The Petitioner also

signed a waiver of rights form before voluntarily giving the officer a statement in which the

Petitioner denied any wrongdoing. The officer testified that the Petitioner told him that

due to his wife’s mental problems, he did not doubt if his wife
had did [sic] something while he was sleeping. . . . [The
Petitioner] . . . stated that he woke up one morning. His wife
was down there playing with it. Upon trying to clarify what he
was getting at, I just more or less basically asked . . . [the
Petitioner]–I stated so you’re telling me you woke up one
morning and your wife was jacking you off, collected semen,
kept it and gave it to her daughter to drink. And . . . [the
Petitioner] stated, yes, but I don’t know what she did with it.

The record indicates that the samples that were collected at the hospital by Ms.

Leahy were tested at the West Virginia State Police Laboratory. David Miller, an expert in

forensic science, testified to receiving not only the samples obtained from the victim, but also

a pillow that was taken from the victim’s home that the victim was sleeping on the night of

the incident. Mr. Miller stated that regarding the two lip swabs he examined,

We . . . performed what’s called a presumptive test for seminal
fluid. A presumptive test for seminal fluid when positive
indicates that seminal fluid may be present but is not an
identification test. There are other items other than seminal
fluid such as yeast and bacteria that can cause a positive reaction
with this presumptive test.
In this case, the lip swabs were positive with the

7
See Miranda v. Arizona, 384 U.S. 436 (1966).

5

 presumptive tests. . . . Having that result, we then proceeded to
a confirmatory test for seminal fluid. That particular test
involved testing for a protein that’s produced in the prostate
gland of males called P30. It’s also known as PSA or prostate-
specific antigen. It’s the protein that’s tested in prostate cancer.
. . . This test was also positive allowing me to say that seminal
fluid was identified in the lip, lip area swabs.

Angela Gill, an expert in the field of forensic science with a specialty in DNA, testified that

although the presence of seminal fluid was found on the swabs, she did not find any Y

chromosomes present. Ms. Gill stated that because there were no Y chromosomes, she could

not isolate the male DNA that would be located on that Y chromosome. The Y chromosome

would have been found on sperm cells, but there were no sperm cells present in the seminal

fluid, which carries the cells. There was testimony from Mr. Miller that there were a number

of situations where sperm cells might not be found in seminal fluid including “vasectomized

males, there can be males that are aspermic or do not produce sperm cells[,] . . . [or] there

could just be so few a number of cells that we do not identify them.” Without the DNA, Ms.

Gill could not link the seminal fluid to a specific male. Ms. Gill did find male DNA, which

was not associated with seminal fluid, on the pillow she examined; however, the Petitioner

was excluded as the primary source of that DNA. Further, as revealed during the cross-

examination of the State’s forensic expert witnesses by the Petitioner’s trial counsel, there

was no DNA match that tied any evidence the State had obtained in the case to the Petitioner.

6

 The State also called Chanin Kennedy, a psychologist, as an expert witness.

Ms. Kennedy testified that in her opinion the child was sexually abused and that the child

was not susceptible to suggestion.

The Petitioner did not testify. He called one witness, Dr. Fred Krieg, who was

an expert in the areas of psychology and professional counseling. Contrary to the Petitioner’s

argument on appeal that “trial counsel failed to disclose his expert, Dr. Krieg, until the day

of trial, . . .” the record demonstrates that the State had received an expert witness disclosure,

which identified Dr. Krieg and which provided Dr. Krieg’s curriculum vitae prior to the day

of trial. The State, however, was not provided with a written summary of Dr. Krieg’s report

or a copy of his report until the day before trial. The State only sought to challenge the

testing or methodology that Dr. Krieg used in order to reach the opinion that the Petitioner

did not fit the profile of a sex offender. The State did not object to the late disclosure of the

expert’s report or summary.

Due to the State’s challenge, the trial court held a Daubert8 hearing on the

8
See Syl. Pt. 4, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995) (“When
scientific evidence is proffered, a circuit court in its ‘gatekeeper’ role under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),
and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114
S.Ct. 2137, 128 L.Ed.2d 867 (1994), must engage in a two-part analysis in regard to the
expert testimony. First, the circuit court must determine whether the expert testimony reflects
(continued...)

7

State’s motion to exclude that portion of Dr. Krieg’s report in which he opined that the

Petitioner did not fit the profile of a sex offender. The State directed the trial court to that

portion of Dr. Krieg’s report in which the doctor stated that “there is no exact profile of a sex

offender.”9 The doctor also stated in the report that “[r]esearch has consistently shown that

there is no such thing as a sex offender profile.” Despite the lack of any profile, Dr. Krieg

opined that it was clear that the Petitioner was at “the low-end risk of being a sexual

offender[.]”10 The trial court determined that, based upon the expert’s report,

[r]esearch has consistently shown there is no such thing as a sex

8
(...continued)
scientific knowledge, whether the findings are derived by scientific method, and whether the
work product amounts to good science. Second, the circuit court must ensure that the
scientific testimony is relevant to the task at hand.”); accord Syl. Pt. 4, State v. Leep, 212 W.
Va. 57, 569 S.E.2d 133 (2002) (applying the law enunciated in Gentry in a criminal action).
9
See Gentry, 195 W. Va. at 514, 466 S.E.2d at 173, Syl. Pt. 6 (“The question of
admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993),
cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994) only arises if it is first
established that the testimony deals with ‘scientific knowledge.’ ‘Scientific’ implies a
grounding in the methods and procedures of science while ‘knowledge’ connotes more than
subjective belief or unsupported speculation. In order to qualify as ‘scientific knowledge,’
an inference or assertion must be derived by the scientific method. It is the circuit court’s
responsibility initially to determine whether the expert’s proposed testimony amounts to
‘scientific knowledge’ and, in doing so, to analyze not what the experts say, but what basis
they have for saying it.”).
10
See also Syl. Pt. 2, Ballard v. Hunt, 235 W. Va. 100, 772 S.E.2d 199 (2015)(“The
opinion evidence of an expert witness proffered by the State in a criminal prosecution,
merely to show that the accused has the character trait of a pedophile under the Diagnostic
and Statistical Manual of Mental Disorders of the American Psychiatric Association, is
inadmissible pursuant to Rule 404(a) of the West Virginia Rules of Evidence to prove that
on a particular occasion the accused acted in accordance with that character trait.”).

8

 offender profile. So I don’t believe and I don’t find that it
would be permissible as the evidence would not be admissible
that he does not fit the sex offender profile if your own expert .
. . says the research show there’s no such thing.11

Notwithstanding the exclusion of this portion of Dr. Krieg’s report, the

Petitioner was allowed to use Dr. Krieg to attack Ms. Kennedy’s opinion that the child was

sexually abused and was not a child who was subject to suggestion. Dr. Krieg testified that

a lot of the information upon which Ms. Kennedy based her opinion was provided by the

victim’s mother and was not substantiated elsewhere.

At the conclusion of the evidence, the jury convicted the Petitioner of sexual

assault in the first degree and sexual abuse by a parent or guardian. The trial court sentenced

the Petitioner to twenty-five to one hundred years12 in the penitentiary for his conviction of

11
The Petitioner’s trial counsel, during Dr. Krieg’s testimony, again raised the issue
that the expert should be allowed to testify that the Petitioner was a low risk for being a sex
offender. The trial court conducted another Daubert hearing, outside the presence of the
jury, before again concluding that there was not enough evidence presented upon which that
court could conclude that the test relied upon by the expert in evaluating the Petitioner fit
within the Daubert standard. See supra nn.8-9.
The trial court’s exclusion of Dr. Krieg’s expert testimony regarding the Petitioner’s
propensity for being a sex offender was appealed to this Court. We declined to hear
argument regarding this issue. See supra n.6 and infra n.13.
12
By order entered July 29, 2014, the circuit court corrected the sentence imposed on
this count pursuant to West Virginia Rule of Criminal Procedure 35 as the statute in place
at the time the offense was committed only authorized an indeterminate sentence of not less
than fifteen nor more than thirty-five years. See W. Va. Code § 61-8B-3 (2006).
(continued...)

9

sexual assault in the first degree and ten to twenty years for his conviction of sexual abuse

by a custodian. The trial court ordered the sentences to run consecutively. On June 13, 2009,

shortly after Petitioner was sentenced, his trial attorney committed suicide.13

B. Habeas Proceeding

The Petitioner filed a petition for habeas corpus on March 12, 2013. The

Petitioner set forth various grounds for relief including ineffective assistance of counsel, the

introduction by the State of “faulty scientific evidence,” which involved the State’s expert

12
(...continued)
Consequently, when the sentencing error was brought to the circuit court’s attention, it
resentenced the Petitioner to fifteen to thirty-five years on that count and removed the fine.
The remainder of the sentence the circuit court previously imposed was to remain in effect.
The Petitioner appealed the circuit court’s correction of the sentence because the
circuit court did not give him another de novo resentencing hearing. We affirmed the circuit
court’s decision in State v. Tex S., No. 14-0891, __ W. Va. __, __S.E.2d___ (2015).
13
The Petitioner retained new counsel, Jim Kratovil, to file an appeal to this Court.
The Petitioner raised four assignments of error including: 1) the trial court erred in allowing
the testimony of the child to be admitted into evidence through the testimony of the mother,
forensic nurse and police officer; 2) the trial court erred in failing to grant the Petitioner’s
motion to dismiss based upon a violation of his right to a speedy trial; 3) the trial court erred
in precluding the Petitioner’s only witness, Dr. Krieg, to testify regarding the Petitioner’s
propensity for being a sex offender; and 4) the Petitioner had not been present at all critical
stages of trial. As previously mentioned, this Court granted the petition on the single issue
of whether the trial court erred in allowing the testimony of the child. The Court affirmed
the Petitioner’s conviction in a memorandum decision issued on February 11, 2011. See
supra n.6.
On May 11, 2011, the Petitioner, through yet another retained counsel, who is his
current counsel, filed a petition for writ of certiorari with the United States Supreme Court
on the issue of the child’s testimony due to her unavailability and the right to confrontation.
On October 3, 2011, United States Supreme Court denied the petition.

10

testifying that the victim was diagnosed as a sexually-abused child; and the failure by the

circuit court to grant leave for discovery regarding previously-examined forensic evidence.

The circuit court set a briefing schedule for briefs to be submitted by the

parties. By order entered June 6, 2014, the circuit court determined that “[h]aving been fully

briefed on the matters, this Court finds that it would not be aided by further discussion and

dispenses with the need for a hearing.” The circuit court denied the Petitioner’s request for

habeas relief by methodically addressing every single claim raised by the Petitioner in his

petition, relying heavily upon the underlying trial transcript and record. The Petitioner filed

a motion for reconsideration, which the circuit court denied by order enter August 18, 2014.

II. Standard of Review

We have 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). Further, “[o]n an

appeal to this Court the appellant 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 trial court.” Syl.

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Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973). It is with these standards

in mind that we undertake review of the issues before us.

III. Discussion

A. Denial of an omnibus hearing

The first issue is whether the circuit court erred in failing to grant the Petitioner’s

motion for an omnibus evidentiary hearing. The Petitioner argues that the circuit court failed

to make any specific findings of fact and conclusions of law as to why an evidentiary hearing

was not necessary. The Petitioner maintains that the issues raised established probable cause

that he may be entitled to relief and an evidentiary hearing was necessary to rule upon the

disputed facts. The Petitioner further contends that had an evidentiary hearing been held he

would have

sought to present the expert testimony of Dr. William Hauda, an
expert in the field of forensic science, who would have testified
regarding the problems with the State’s purported identification
of seminal fluid, an attorney expert with expertise in the area of
professional responsibility and competence of attorneys, a
forensic psychologist expert regarding the scientific inability to
diagnose a child as a victim of sexual abuse, and other fact
witnesses who would have testified regarding Paul Lane’s [,the
Petitioner’s trial counsel’s,] mental condition following his head
injury. Through the evidentiary hearing, . . . [the Petitioner] also
requested discovery regarding forensic testing, that had
previously not been disclosed, as well as independent testing of
the preserved evidence.

The State responds that the circuit court issued a twenty-eight page order

12

denying the Petitioner habeas relief. In its order, the circuit court discusses the merits of all

the Petitioner’s habeas claims and finds that a hearing would provide no further evidence

warranting relief.

Rule 9(a) of the Rules Governing Post-Conviction Habeas Corpus Proceedings

in West Virginia provides as follows:

If the petition is not dismissed at a previous stage in the
proceeding, the circuit court, after the answer is filed, shall,
upon a review of the record, if any, determine whether an
evidentiary hearing is required. If the court determines that an
evidentiary hearing is not required, the court shall include in its
final order findings of fact and conclusions of law as to why an
evidentiary hearing was not required.

(Emphasis added).

In syllabus point one of Perdue, this Court held:

A court having jurisdiction over habeas corpus
proceedings may deny a petition for a writ of habeas corpus
without a hearing and without appointing counsel for the
petitioner if the petition, exhibits, affidavits or other
documentary evidence filed therewith show to such court’s
satisfaction that the petitioner is entitled to no relief.

156 W. Va. at 467, 194 S.E.2d at 658 (emphasis added); see W. Va. Code 53-4A-7(a) (2008)

(“If the petition, affidavits, exhibits, records and other documentary evidence attached

thereto, or the return or other pleadings, or the record in the proceedings which resulted in

the conviction and sentence, or the record or records in a proceeding or proceedings on a

13

prior petition or petitions filed under the provisions of this article, or the record or records

in any other proceeding or proceedings instituted by the petitioner to secure relief from his

conviction or sentence, show to the satisfaction of the court that the petitioner is entitled to

no relief, or that the contention or contentions and grounds (in fact or law) advanced have

been previously and finally adjudicated or waived, the court shall enter an order denying the

relief sought.”).

Further, in State ex rel. Valentine v. Watkins, 208 W. Va. 26, 537 S.E.2d 647

(2000), this Court discussed the standard for review of a circuit court’s decision to grant or

to deny a habeas corpus petition. “When considering whether such a petition requesting

post-conviction habeas corpus relief has stated grounds warranting the issuance of the writ,

courts typically are afforded broad discretion.” Id. at 31, 537 S.E.2d at 652. We also stated

in Gibson v. Dale, 173 W. Va. 681, 319 S.E.2d 806 (1984), “the post-conviction habeas

corpus statute leaves the decision of whether to conduct an evidentiary hearing or to compel

the State to produce evidence in its possession in large part to the sound discretion of the

court before which the writ is made returnable.” Id. at 688, 319 S.E.2d at 813. The

discretion afforded circuit courts is not unlimited; “the court must be guided by the

necessities of each particular case.” Id. at 688-89, 319 S.E.2d at 813.

In determining whether the circuit court abused its discretion in denying the

14

Petitioner habeas relief without affording him a hearing, we readily dispense with the

Petitioner’s argument that the circuit court failed to make any specific findings of fact and

conclusions of law as to why an evidentiary hearing was not necessary. Regarding its

decision to not hold an omnibus hearing, the circuit court expressly stated in its order that

“[h]aving been fully briefed14 on the matters, this Court finds that it would not be aided by

further discussion and dispenses with the need for a hearing.” The circuit court then

proceeded to address each issue raised in the petition, including specific references to the

trial transcript. Consequently, we find the circuit court’s findings adequately support its

determination that an evidentiary hearing was not necessary.

We also disagree with the Petitioner’s argument that an evidentiary hearing was

necessary to rule upon the disputed factual issues raised in his petition. The Petitioner

maintains that the primary purpose of an evidentiary hearing was for the circuit court to

consider expert testimony in the areas of forensic science, professional responsibility and

competency of attorneys, and forensic psychologist expert relating the diagnosis of the victim

being sexually abused. Thus, the need for expert testimony was solely for the purpose of

attacking the Petitioner’s trial counsel’s strategy.

14
The brief filed in the circuit court by the Petitioner regarding his habeas claims was
seventy pages.

15

 Thus, when examining the need for an evidentiary hearing in this case, we are

guided by our law, which we have firmly adhered to, that the primary purpose of an omnibus

hearing is grounded in providing the Court with evidence from “the most significant witness,

the trial attorney,” in order to give that individual “the opportunity to explain the motive and

reason behind his or her trial behavior.” State v. Miller, 194 W. Va. 3, 15, 459 S.E.2d 114,

126 (1995). It is the need for the trial attorney’s testimony that generally precludes this Court

from reviewing any ineffective assistance of counsel claim on direct appeal. See id. at 15,

459 S.E.2d at 126; see also State v. Meadows, 231 W. Va. 10, 24, 743 S.E.2d 318, 332

(2013); State v. Woodson, 222 W. Va. 607, 620-21; 671 S.E.2d 438, 451-52 (2008); State v.

Frye, 221 W. Va. 154, 155-58, 650 S.E.2d 574, 575-78 (2006). As we stressed in Miller,

“[t]he test of ineffectiveness has little or nothing to do with what the best lawyers would have

done. Nor is the test even what most good lawyers would have done.” 194 W. Va. at 16, 459

S.E.2d at 127. Rather, the focus of any habeas evidentiary hearing as it relates to ineffective

assistance of counsel is affording a petitioner’s trial counsel an opportunity to explain his

actions during the underlying trial. See id. at 17, 459 S.E.2d at 128 (stating “we intelligently

cannot determine the merits of . . . ineffective assistance claim[s] without an adequate record

giving trial counsel the courtesy of being able to explain his trial actions.”). In the instant

case, as discussed in greater detail infra in section III. B. of this opinion, we find that the

Petitioner’s ineffective assistance of counsel claims are all grounded in trial strategy. Due

to the Petitioner’s trial counsel’s death, the most critical witness for determination of the

16

Petitioner’s ineffective assistance of counsel claims cannot testify at an evidentiary hearing

and offer any explanation that could assist the trier of fact.

This Court has upheld the denial of habeas relief where the circuit court has

determined that an evidentiary hearing is not necessary. See State ex rel. Farmer v. Trent,

206 W. Va. 231, 523 S.E.2d 547 (1999); State ex rel. Waldron v. Scott, 222 W. Va. 122, 663

S.E.2d 576 (2008). Specifically, in Waldron, we stated:

Upon review of the final order, it is clear that the circuit
court concluded that an evidentiary hearing on the appellant’s
habeas petition was not necessary. The circuit court issued a
lengthy order meticulously addressing each of the six issues
raised by the appellant and explaining in detail why the alleged
errors were without merit. To the extent that the court erred by
failing to specifically state in its order that an evidentiary
hearing was not required, this Court has acknowledged that,
“[m]ost errors, including constitutional ones are subject to
harmless error analysis.” Sullivan v. Louisiana, 508 U.S. 275,
278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Likewise, this
Court has held that: “‘“Failure to observe a constitutional right
constitutes reversible error unless it can be shown that the error
was harmless beyond a reasonable doubt.” Syl. pt. 5, State ex
rel. Grob v. Bailey [Blair],158 W. Va. 647, 214 S.E.2d 330
(1975).’ Syllabus Point 1, Maxey v. Bordenkircher, [175] W.
Va. [49], 330 S.E.2d 859 (1985).” Syllabus Point 3, State v.
Barrow, 178 W. Va. 406, 359 S.E.2d 844 (1987). In this case,
the circuit court addressed and disposed of each issue set forth
in the appellant’s habeas petition in such an exhaustive manner
that there is no question as to why the appellant was denied an
evidentiary hearing.

222 W. Va. at 125-26, 663 S.E.2d at 579-80. Unlike the Waldron case, the circuit court in

the case sub judice expressly determined, based upon the extensive briefing in this case, that

17

an evidentiary hearing was not needed for it to determine the Petitioner’s habeas claims. In

an extensive twenty-eight page order the circuit court painstakingly addressed each and every

claim for habeas relief raised by the Petitioner leaving no question why it found that an

evidentiary hearing was not needed. Moreover, that the most significant witness could not

testify regarding the decisions he made during trial lends further support for the trial court’s

determination on this issue.

B. Petitioner’s Ineffective assistance of counsel claims

The Petitioner sets forth numerous claims of ineffective assistance of counsel

including his trial counsel: 1) failed to object to the ex post facto imposition of an enhanced

statutory sentence for the Petitioner’s conviction for first degree sexual assault at

sentencing;15 2) ineffective assistance regarding forensic evidence purportedly identifying

seminal fluid on the lips of the child victim;16 3) failed to litigate the admissibility of the

15
See supra n.12. Concerning the Petitioner’s ineffective assistance of counsel claim
associated with this alleged error, the Petitioner cannot meet his burden of prejudice set forth
in syllabus point nineteen of State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974) (“In
the determination of a claim that an accused was prejudiced by ineffective assistance of
counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth
Amendment to the United States Constitution, courts should measure and compare the
questioned counsel’s performance by whether he exhibited the normal and customary degree
of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except
that proved counsel error which does not affect the outcome of the case, will be regarded as
harmless error.”). We therefore find that the circuit court correctly denied the Petitioner
habeas relief on his claim of ineffective assistance of counsel on this issue.
16
This allegation encompasses the Petitioner’s claims that his trial counsel failed to
(continued...)

18

Petitioner’s statement to police prior to it being entered into evidence through Corporal Link;

4) failed to object to testimony from Corporal Link concerning the Petitioner’s refusal to

submit to DNA testing where the Petitioner had invoked his right against self-incrimination

and right to counsel; 5) allowed an inadmissible out-of-court statement made by the victim

to be entered into evidence through the cross-examination of Corporal Link; 6) failed to

properly object to the victim’s statements being entered into evidence through a forensic

nurse and the victim’s mother; 7) failed to disclose his expert, Dr. Krieg, until the day before

trial, leading the trial court to hold a Daubert hearing, which resulted in the exclusion of

portions of Dr. Krieg’s anticipated trial testimony; and 8) failed to object to the State’s

expert, Chanin Kennedy, who testified that the victim was diagnosed as sexually abused.

We set forth the standard for assessing claims of ineffective assistance of

counsel in syllabus points five and six of Miller:

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.

16
(...continued)
investigate the forensic evidence by requesting additional testing, failed to seek expert
testimony, and failed to cross-examine the State’s forensic experts about the “validity of the
forensic testing identifying seminal fluid.”

19

 In reviewing counsel’s performance, 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 trial counsel’s strategic decisions. Thus, a
reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the
case at issue.

194 W. Va. 6-7, 459 S.E.2d at 117-18; see Thomas, 157 W. Va. at 643, 203 S.E.2d at 449,

Syl. Pt. 19. Consequently, “[w]here a counsel’s performance, attacked as ineffective, arises

from occurrences involving strategy, tactics and arguable courses of action, his conduct will

be deemed effectively assistive of his client’s interests, unless no reasonably qualified

defense attorney would have so acted in the defense of an accused.” Id. at 643, 203 S.E.2d

at 449, Syl. Pt. 21.

As we discussed in Miller,

[u]nder these rules and presumptions, the cases in which
a defendant may prevail on the ground of ineffective assistance
of counsel are few and far between one another. This result is
no accident, but instead flows from deliberate policy decisions
this Court and the United States Supreme Court have made
mandating that “[j]udicial scrutiny of counsel’s performance
must be highly deferential” and prohibiting “[i]ntensive scrutiny
of counsel and rigid requirements for acceptable assistance[.]”
Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d
at 694-95. In other words, we always should presume strongly
that counsel’s performance was reasonable and adequate. A
defendant seeking to rebut this strong presumption of
effectiveness bears a difficult burden because constitutionally
acceptable performance is not defined narrowly and
encompasses a “wide range.”

20

194 W. Va. at 16, 459 S.E.2d at 127 (emphasis added). We further noted that

[t]he widespread use of the tactic of attacking trial
counsel by showing what “might have been” proves that nothing
is clearer than hindsight--except perhaps the rule that we will
not judge trial counsel’s performance through hindsight. See,
e.g., Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at
2065, 80 L.Ed.2d at 694 (“[a] fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight”). As is often said, nothing is so
easy as to be wise after the event. In reviewing counsel’s
performance, 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 trial
counsel’s strategic decisions.

Miller, 194 W. Va. at 17, 459 S.E.2d at 128.

1. Petitioner’s Ineffective Assistance Claim Regarding Forensic Evidence

The primary focus of the Petitioner’s ineffective assistance of counsel claims

is based upon his trial counsel’s “failure to investigate and contest the forensic testing that

purportedly identified seminal fluid on a lip swab taken from . . . [the victim.]” The

Petitioner challenges the testing that was used by the State in its determination that seminal

fluid was present, arguing that other types of testing would have been better and could have

resulted in a determination that there was no seminal fluid. Thus, the Petitioner argues that

his trial counsel failed to request additional forensic testing; failed to retain a forensic expert

to offer an opinion, consult with or perform independent testing; failed to cross-examine the

21

State’s witnesses regarding the purported identification of seminal fluid on the victim’s lips;

failed to understand the significance of the forensic evidence; and failed to offer logical

argument regarding the evidence.

The circuit court thoroughly examined the Petitioner’s claims regarding the

forensic evidence and found the “Petitioner’s argument that independent testing would have

resulted in a different result” without merit. Further, the circuit court found the Petitioner

offer of a “long list of preferred DNA testing methods as well as hindsight strategy decisions

. . .” was “simply second[-]guess[ing] trial counsel’s strategy.” We agree with the circuit

court.

A hearing was held on May 21, 2007, to determine whether the State could

perform additional testing in order to ascertain whether any DNA was present. To do the

additional testing meant that the State would consume the entirety of the second lip swab and

the sample area on the pillow. The Petitioner’s trial counsel, after discussing the issue with

the Petitioner, told the trial court that “I explained to . . . [the Petitioner] again the

consequences of agreeing to allow the state to – the State Police Lab to utilize the entire

sample. And he wished to decline that.” So the trial court ordered the State to refrain from

any additional testing until the Petitioner’s trial counsel notified the State of the name of the

Petitioner’s expert. The trial court gave the Petitioner thirty days to find an expert. The

22

Petitioner’s trial counsel then stated on the record: “And in the interim, if we do – obviously

if we do find the finances preclude that possibility, we’ll of course notify the state also.”

Subsequently, at an October 22, 2007, hearing, which occurred after the

Petitioner’s trial counsel’s accident, the prosecuting attorney represented that in conversation

she had with trial counsel before his accident, both the prosecutor and the Petitioner’s trial

counsel thought that the additional testing could be done at the State Police Lab. There was

no viewing area at the State Police Lab, however, so they agreed that they would need to

send the sample to an independent lab in order for the Petitioner’s expert to observe the

testing. As the prosecutor represented to the trial court regarding her conversation she had

with the Petitioner’s trial counsel:

[W]e were anticipating that his independent expert would be
able to watch the testing done at the state lab and neither of us
had been aware that there is no viewing area at the state lab. So
we actually have to now send it out to an independent lab to get
it done if in fact the defendant wants his own expert to be
viewing that.
So that was the nature of the conversation and then
obviously with the hospitalization of Mr. Lane [trial counsel],
everything kind of got put on the back burner as far as being
able to work through that because I believe while he had
identified his own independent expert, the fact that the testing
has to be done at an outside lab was going to be additional
expenses for his client. . . .

The Petitioner’s trial counsel responded:

I can say after discussing the matter further with my
client and discussing with the expert retained through TASA. .

23

 . , which is a well-known defense attorneys assistance agency,
we are going to elect not to have an expert at the official testing.
However, I do want to reserve the right, depending upon the
results of the test, to utilize an expert to challenge the state’s
results. So we’ll not have an expert at the testing. We won’t go
to that length. We want to reserve the right to challenge the
results through cross-examination.

The trial court then inquired of the Petitioner whether he understood the discussion and

whether he agreed with what his trial counsel had advised the trial court. The Petitioner

responded affirmatively to both inquiries.

The record demonstrates that contrary to the Petitioner’s claims, his trial

attorney did consult with experts, as the circuit court found, before deciding to embark on

a calculated trial strategy to hold off on retaining an expert until the results of the additional

testing conducted were obtained. Further, because none of the State’s testing of the forensic

evidence connected the Petitioner to the crime charged due to the lack of any DNA evidence,

the Petitioner and his trial counsel found it unnecessary to hire an expert. Rather, the record

of the trial demonstrates that the Petitioner’s trial counsel effectively cross-examined every

State forensic expert, as well as Corporal Link, who obtained the evidence collected from

the victim and her home, regarding the complete lack of any scientific forensic evidence that

connected the Petitioner to the alleged crime.

Thus, we agree with the circuit court that the Petitioner now is seeking that we

24

embark on a journey filled with second-guessing a trial attorney’s strategic decision in

dealing with the investigation of forensic evidence, to the decisions made regarding experts,

to the examination of witnesses, to the arguments made in closing. Miller, 194 W. Va. at 6-7,

203 S.E.2d at 117-18, Syl. Pt. 6; Thomas, 157 W. Va. at 643, 203 S.E.2d at 449, Syl. Pt. 21.

We decline to do so. We find the Petitioner’s arguments to be grounded in speculation and

hindsight. “As is often said, nothing is so easy as to be wise after the event.” Miller, 194 W.

Va. at 17, 459 S.E.2d at 128. We further agree with the circuit court’s determination that,

[e]ven if trial counsel would have employed the methods
of discovery and cross-examination requested in the instant
petition, there is no evidence or persuasive argument that the
results of the Petitioner’s trial would have been different. The
jury heard corroborating testimony regarding who was in the
home and had access to . . . [the victim.] The victim made three
consistent disclosures to adults shortly after the incident as to
who assaulted her. This Court cannot find a reasonable
probability that but for these alleged unprofessional errors, the
result of the proceedings would have been different.
Accordingly, [the] Petitioner has failed to establish a right to
relief on the ground of ineffective assistance of counsel.

2. Petitioner’s Remaining Claims of Ineffective Assistance of Counsel

The remainder of the Petitioner’s claims of ineffective assistance of counsel are

lumped together in his brief. The Petitioner first argues that his trial counsel was ineffective

in failing to contest the admissibility of the Petitioner’s statement to Corporal Link based

upon voluntariness. See State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994). The record

supports that the Petitioner’s trial counsel did not file a motion to suppress the Petitioner’s

25

statement because there was no factual basis to do so. The trial court correctly found that the

“Petitioner does not allege that his statement was coerced or involuntary or would have been

excluded had Trial Counsel objected. As such, this complaint fails to state error.”

Next, the Petitioner complains that his trial counsel failed to object to Corporal

Link’s testimony concerning the Petitioner’s initial refusal to submit to DNA testing where

the Petitioner had invoked his Fifth Amendment privilege against self-incrimination and right

to counsel. The Petitioner argues that the failure to object “fell below an objective standard

of reasonableness and left the jury with the impression that . . . [the Petitioner] had something

to hide by refusing the test.” The record, however, again supports the circuit court’s

determination that the Petitioner’s trial counsel’s decision to refrain from objecting to this

question was due to trial strategy. By not objecting, the Petitioner’s trial counsel allowed the

witness to testify that the reason the Petitioner had a problem with the initial request for DNA

was due to his alleged mentally deranged wife obtaining semen from him and putting it in

his stepdaughter’s mouth. Getting this evidence admitted indirectly was strategically

important in light of the fact that the Petitioner did not testify. Thus, the circuit court did not

err in declining any habeas relief on this claim.

The third instance of alleged ineffective assistance of counsel stems from the

Petitioner’s trial counsel’s cross-examination of Corporal Link, in which the officer testified

26

about the victim’s out-of-court statement. The trial court had determined that the child

victim’s statement was properly admissible through her mother and the forensic nurse, Ms.

Leahy, under exceptions to the hearsay rule set forth in West Virginia Rules of Evidence 803

and 804. The trial court, however, had determined that the statement was not admissible

through Corporal Link as there was no applicable hearsay exception. A review of the trial

transcript shows that contrary to the Petitioner’s argument, his trial counsel did not “elicit[]

inadmissible and inculpatory evidence against his client. . . .” Rather, the Petitioner’s trial

counsel sought to obtain testimony from the officer that showed flaws in the victim’s

statement, including testimony from the officer that they tried to get more information from

the victim to no avail, that the child did not have a real recollection of the event, and that it

was a difficult interview – all of which went to the Petitioner’s trial strategy of showing that

the victim was coached by her mother. Furthermore, even if we found trial counsel’s

performance deficient on this ground, it is axiomatic that because the child victim’s statement

was properly admitted through both her mother and Ms. Leahy, the Petitioner cannot

overcome his burden of proof as to how the outcome of the trial would have changed in his

favor if the statement had not come in through the officer’s testimony as well. See Miller,

194 W. Va. at 6, 459 S.E.2d at 117, Syl. Pt. 5.

The Petitioner next argues that his trial counsel erred in failing to “properly

object to . . . [the victim’s] statement being entered into evidence through forensic nurse,

27

Cynthia Leahy, and . . . [the victim’s mother] where the State failed to properly lay a

foundation for [the] medical exception to the hearsay rule and where the unavailability

motion was not made until the day of trial.” A review of the record demonstrates that the

Petitioner’s trial counsel objected to the State’s motion to find the victim unavailable and to

allow the victim’s statement to be admitted through other witnesses on the grounds that it

violated his client’s right to confront witnesses. The standard by which we review whether

a trial counsel’s performance was so ineffective as to warrant relief in habeas is not simply

that the Petitioner’s current appellate counsel would have done things differently. That the

Petitioner’s trial counsel objected to the evidence in the manner he did is well within the

standard of an effective counsel’s performance and we find no error in the circuit court’s

denial of habeas relief on this ground.

The Petitioner next complains that his trial counsel failed to disclose his expert,

Dr. Krieg, until the day of trial. In a three-sentence paragraph, the Petitioner argues that

“[h]ad trial counsel disclosed Dr. Krieg’s report in a timely manner, a more full Daubert

hearing may have been able to be held prior to the trial and Dr. Krieg’s testimony may have

been found to be admissible.” The Petitioner further argues that had the Daubert hearing

been held at an earlier time, his trial counsel “would have been able to plan and adjust his

argument and presentation accordingly.” First, as previously mentioned, contrary to the

Petitioner’s argument, his trial counsel did disclose Dr. Krieg as an expert prior to trial. The

28

Petitioner, however, had not provided the State with a copy of Dr. Krieg’s report prior to

trial. It is significant that the State did not object to the late disclosure of Dr. Krieg’s report.

Moreover, there was no exclusion of any portion of the report due to late disclosure. Rather,

the State challenged the scientific testing or methodology that Dr. Krieg used in order to

reach the opinion that the Petitioner did not fit the profile of a sex offender. On that issue,

the trial court conducted a Daubert hearing and determined that Dr. Krieg’s own report

lacked any scientific basis for his opinion. The Petitioner failed to offer any argument either

before the circuit court or this Court regarding any prejudice from the late disclosure of the

report, which is the claimed ineffectiveness of counsel, other than an earlier hearing “may”

have resulted in a different ruling on admissibility. Additionally, the Petitioner fails to even

assert that the outcome of his trial would have been different had the late disclosure not

occurred. See Miller, 194 W. Va. at 6, 459 S.E.2d at 117, Syl. Pt. 5. Thus, the circuit court

did not err in finding that it could grant no relief in habeas on this issue.

Lastly, we find no merit in the Petitioner’s argument that his trial counsel failed

to object to the testimony of the State’s expert, Chanin Kennedy, concerning Ms. Kennedy’s

diagnosis that the child victim was a sexually abused child and that the child victim did not

appear to be coached.17 Citing State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123

17
Regarding the expert’s testimony that the victim was not a suggestible child, the
circuit court found that
(continued...)

29

(1990), the Petitioner conceded before the circuit court that “the West Virginia Supreme Court

has allowed the use of expert testimony on whether a child has been sexually-abused.”

However, the Petitioner argued that “such testimony is not reliable, not scientific, and unfairly

prejudicial.”18 Given the Petitioner’s concession before the circuit court, we would be hard-

pressed to find his trial counsel deficient for failing to make an objection that has no legal

basis in the law of this State. This Court held in syllabus point seven of Edward Charles L.,

that

[e]xpert psychological testimony is permissible in cases
involving incidents of child sexual abuse and an expert may state
an opinion as to whether the child comports with the
psychological and behavioral profile of a child sexual abuse

17
(...continued)

Petitioner’s trial strategy undermined the prior statements of . .

. [the victim], calling her suggestibility directly into question.

Accordingly, it would have been proper to admit expert

testimony supporting the child’s credibility. As such, Trial

Counsel made a shrewd strategic decision in not objecting to the

statement as it would likely have only brought more attention to

the testimony. Consequently, this ground only criticizes

strategy, which cannot sustain a petition for habeas corpus.

We find no error in this finding by the circuit court.
18
The Petitioner also assigns as error that his “conviction was based, in part, upon
scientifically invalid expert testimony about . . . [the victim] being diagnosed as a sexually-
abused child.” The Petitioner argues that while this Court allows the introduction of this type
of expert testimony, the Petitioner invites the Court to overturn this precedent. See Edward
Charles L., 183 W. Va. at 644, 398 S.E.2d at 126, Syl. Pt. 5; see also State v. James B., 204
W. Va. 48, 511 S.E.2d 459 (1998); Syl. Pt. 3, State v. Wood, 194 W. Va. 525, 460 S.E.2d 771
(1995). The circuit court found that “[t]he law is well settled in this State[] that this type of
evidence is permissible.” We agree and decline the Petitioner’s invitation to revisit our law
on this issue.

30

 victim, and may offer an opinion based on objective findings that
the child has been sexually abused. Such an expert may not give
an opinion as to whether he personally believes the child, nor an
opinion as to whether the sexual assault was committed by the
defendant, as these would improperly and prejudicially invade
the province of the jury.

183 W. Va. at 644, 398 S.E.2d at 126, Syl. Pt. 5. Our review of the record confirms the circuit

court’s determination that “[a]ll the testimony that Petitioner complains of falls squarely

within the protected confines” of the Edward Charles L. decision. Finding no merit to the

Petitioner’s argument on this issue, the circuit court did not err in denying habeas relief.

The constant theme throughout each of the Petitioner’s ineffective assistance

of counsel claims was that due to his trial counsel’s traumatic brain injury that caused

“cognitive difficulties” his trial counsel was so ineffective that “there is a reasonable

probability that a jury would have acquitted . . . [the Petitioner]” but for his trial counsel’s

performance. The Petitioner over and over again tries to paint a picture of his trial counsel

being so confused and mentally inept due to his traumatic brain injury that he was wholly

deficient in his representation of the Petitioner. Despite the Petitioner’s assertion, it is

significant that at the close of this trial, after the jury had been excused to deliberate, Judge

Gina Groh, who presided over the trial before her appointment to the United States District

Court for the Northern District of West Virginia, stated on the record to both the prosecutor

and the Petitioner’s counsel: “I want to compliment you all on your professionalism, and I

think this case can go either way due to the good efforts put in by both the state and the

31

defense counsel. I think you both did an excellent job.” (Emphasis added). Our review of

the record comports with the trial court’s observations. That is not to say that every part of

the trial below was absolutely perfect; but, as we acknowledged in State v. Guthrie, 194 W.

Va. 657, 461 S.E.2d 163 (1995), with “the reality of the human fallibility of the participants,

there can be no such thing as an error-free, perfect trial, and that the Constitution does not

guarantee such a trial.” Id. at 684, 461 S.E.2d at 190 (quoting, in part, U.S. v. Hasting, 461

U.S. at 508–09 (1983)).19

IV. Conclusion

Based upon the foregoing, the decision of the Circuit Court of Morgan County

19
The Petitioner also assigns as error that the circuit court failed to grant leave for
discovery regarding the forensic testing performed by the State. According to the circuit
court, the “Petitioner request[ed] that this Court should order the disclosure of any
documentation of the testing performed on the biological sample related to the identification
of semen and order the post-conviction testing of the remaining forensic evidence that was
not consumed during testing.” The circuit court correctly denied this request. The Petitioner
had the opportunity to review results of testing done by the State, to obtain his own expert
and to cross-examine the State’s experts. As the Petitioner acknowledges in his brief, his
trial counsel, with the Petitioner’s agreement, waived the right to independent testing.
Consequently, under Rule 7 of the Rules Governing Post-Conviction Habeas Corpus in West
Virginia, the Petitioner has failed to meet the “good cause” requirement that must have been
met in order for the circuit court to have exercised its discretion in allowing the Petitioner to
engage in discovery as allowed by the rule. See id. (“In post-conviction habeas corpus
proceedings, a prisoner may invoke the processes of discovery available under the West
Virginia Rules of Civil Procedure if, and to the extent that, the court in the exercise of its
discretion, and for good cause shown, grants leave to do so.”). We find no error by the
circuit court regarding this issue.

32

is affirmed.

Affirmed.

33