Kevin C., by counsel Scott E. Johnson, appeals the Circuit
Court of Fayette County's March 9, 2016, order denying
his petition for writ of habeas corpus.  Respondent David
Ballard, Warden, by counsel Gordon L. Mowen II, filed a
response. Petitioner filed a reply. On appeal, petitioner
argues that the circuit court erred in finding that he
received effective assistance of counsel.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
of 2010, petitioner was indicted on 126 counts of various
felony sexual offenses involving his nine-year-old
stepdaughter. Ultimately, all but twenty-four counts of
first-degree sexual assault were dismissed. Petitioner's
case proceeded to trial in April of 2011. At the conclusion
of a two-day trial, a jury convicted petitioner of the
remaining twenty-four counts of first-degree sexual assault.
Petitioner was later effectively sentenced to not less than
150 years nor more than 600 years in the penitentiary and
fined $5, 000 for each conviction. Petitioner subsequently
appealed his convictions and sentences, which were affirmed
by this Court. See State v. Kevin C., No. 11-1233,
2012 WL 5857311 (W.Va. Nov. 19, 2012)(memorandum decision).
January of 2014, petitioner filed a pro se petition for writ
of habeas corpus in the circuit court. Following appointment
of counsel, petitioner filed an amended petition, which
raised the grounds of ineffective assistance of trial counsel
and prosecutorial misconduct. The circuit court held an
omnibus evidentiary hearing. Following this hearing, the
court entered its "Order Denying and Dismissing
Petition." It is from this order that petitioner
Court reviews appeals of circuit court orders denying habeas
corpus relief under the following standard:
"In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a
three-prong standard of review. We review the final order and
the ultimate disposition under an abuse of discretion
standard; the underlying factual findings under a clearly
erroneous standard; and questions of law are subject to a
de novo review." Syllabus point 1, Mathena
v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226
W.Va. 375, 701 S.E.2d 97 (2009).
appeal, petitioner contends that he received ineffective
assistance of counsel. In support of this argument,
petitioner alleges four distinct errors: first, trial
counsel's failure to object to the State's rebuttal
closing argument during which it referred to petitioner as a
"coward" and referenced his "cowardice;"
second, counsel's failure to object to the State's
leading questions directed to the victim; third,
counsel's failure to object to an expert's testimony
containing hearsay; and fourth, counsel's failure to call
an alibi witness. Petitioner also asserts cumulative error.
Each assertion will be addressed in turn.
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
argues that the State's four characterizations of
petitioner as a "coward" and two references to
petitioner's "cowardice" in its rebuttal
closing argument were improper and outside the bounds of fair
advocacy. Thus, trial counsel's failure to object to
these references amounts to ineffective assistance of
counsel. Petitioner asserts that the failure to object was
"sufficiently egregious" that there is a reasonable
probability that, had objections been made, the result of the
trial would have been different. Petitioner argues that the
prejudice is particularly likely given that the comments
occurred during the State's rebuttal closing argument,
leaving no opportunity for the petitioner to respond and
leaving these comments as some of the last heard by the jury
prior to their deliberations.
petitioner's omnibus hearing, petitioner's trial
counsel explained that he did not object to these comments
because he felt that the jury, "having reviewed that
statement, knew that [petitioner] could not very well be a
coward if he sat up here, took the stand in his own defense
and was subjected to intense cross-examination[.]"
Further, trial counsel's experience led him to conclude
that "jumping up, - what they call a springbok attorney,