                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

State ex rel. William S.,

Petitioner Below, Petitioner                                                       FILED

                                                                                January 14, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 11-1640 (Mercer County 11-C-236)                                   SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

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

                                 MEMORANDUM DECISION

         Petitioner S.’s1 appeal, filed by counsel Paul Cassell, arises from the Circuit Court of
Mercer County, wherein petitioner’s second petition seeking a writ of habeas corpus was denied
by order entered on November 16, 2011. Respondent Warden Ballard, by counsel Scott Johnson,
filed a response in support of the circuit court’s decision.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        In 2003, petitioner was found guilty of thirty-two counts of first degree sexual abuse and
sixteen counts of sexual abuse by a custodian. The trial court subsequently ordered petitioner to
serve consecutive sentences of one to five years in prison for each of the first degree sexual
abuse convictions and ten to twenty years in prison for each of the sexual abuse by a custodian
convictions for a total of fifty-two to two hundred years in prison. This Court refused petitioner’s
direct appeal of these convictions. Subsequently, petitioner filed his first petition for writ of
habeas corpus, which the circuit court denied following an omnibus hearing. We refused the
petition for appeal of that denial of habeas relief. In 2011, the circuit court held an evidentiary
omnibus hearing on petitioner’s second petition for writ of habeas corpus in which he
challenged, inter alia, the effectiveness of his first habeas counsel. Following this hearing, the
circuit court denied petitioner’s second petition for writ of habeas corpus. It is from this ruling
that petitioner now appeals.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:


1
 Because the victim in the underlying case was a minor, we follow our traditional practice in
cases involving sensitive facts and use only petitioner’s last initial. See State v. Edward Charles
L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

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       “In reviewing challenges to the findings and conclusions of the circuit court in a
       habeas corpus action, we apply a three-prong standard of review. We review the
       final order and the ultimate disposition under an abuse of discretion standard; the
       underlying factual findings under a clearly erroneous standard; and questions of
       law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219
       W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

       We also bear in mind the following:

       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). Moreover, with regard to
reviewing claims concerning ineffective assistance of counsel, we reiterate the following
standard:

       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).

        On appeal, petitioner raises two assignments of error in which he argues that he was
denied effective assistance of habeas counsel on his first habeas petition. In particular, petitioner
argues that his first habeas counsel failed to educate him about the Losh checklist and failed to
subpoena petitioner’s trial counsel to the omnibus evidentiary hearing. In response, Warden
Ballard argues that petitioner has failed to show how his first habeas counsel acted deficiently
and how, but for the alleged deficiencies, the outcome of his proceedings would have been
different. Respondent Warden Ballard further argues that this Court has stated that there is a
strong presumption that counsel’s performance is adequate and reasonable and, therefore, a
petitioner seeking to prove ineffective assistance of counsel has a difficult burden. State v.
Miller, 194 W.Va. 3, 16, 459 S.E.2d 114, 127 (1995). More importance is placed on adequate
adversarial process, not on grading counsel’s performance. Id.

        Our review of the record uncovers no error by the circuit court in denying habeas corpus
relief to petitioner based on his arguments on appeal. Petitioner’s contentions concerning
ineffective habeas counsel on his first petition were raised in his second petition before the



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circuit court and discussed at the omnibus evidentiary hearing. Having reviewed the circuit
court’s “Order Denying Petitioner’s Petition for Writ of Habeas Corpus” entered on November
16, 2011, we hereby adopt and incorporate the circuit court’s well-reasoned findings and
conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a
copy of the circuit court’s order to this memorandum decision.2

          For the foregoing reasons, we affirm the circuit court’s decision denying habeas corpus
relief.


                                                                                        Affirmed.

ISSUED: January 14, 2013

CONCURRED IN BY:

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




2
 Consistent with our explanation in the first footnote of this memorandum decision, the parties’
names in the circuit court order have been redacted to leave only their initials.

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