Jackson County 14-C-22
Ronald Davis, by counsel Timothy P. Rosinsky, appeals the
December 28, 2016, order of the Circuit Court of Jackson
County denying his petition for writ of habeas corpus.
Respondent Donnie Ames,  Superintendent, Mt. Olive Correctional
Complex, by counsel Holly M. Flanigan, filed a response in
support of the circuit court's order. On appeal,
petitioner alleges that the circuit court erred in denying
him habeas relief because he received ineffective assistance
of counsel, the evidence presented was insufficient to
sustain his conviction, he should have been granted a change
of venue due to the fact that his trial was tainted by
pretrial publicity, his sentences are excessive, and the
State knowingly used perjured testimony.
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.
September 23, 2010, petitioner barricaded the front door and
windows of a home he shared with the victim, Carol Parsons,
and set fire to the home. Ms. Parsons was inside and died as
a result of the fire. Ms. Parsons's daughter and
son-in-law lived beside the mobile home and reported that
they heard pounding and a scream from Ms. Parsons's home
on the night in question. The victim's son-in-law
reported to police that he saw petitioner bend over on Ms.
Parsons's front porch immediately before a ball of flames
shot up over his head. Witnesses at the scene attempted to
rescue Ms. Parsons but were unsuccessful. Several witnesses
stated that while they attempted to rescue Ms. Parsons,
petitioner watched, petted a dog, barked, laughed, and
whittled wood. He also stated to Ms. Parsons's family
that night that he "burned her alive." When police
arrived on the scene, petitioner gave inconsistent accounts
of his whereabouts when the fire started. Petitioner was
indicted on one count of first-degree murder and one count of
first-degree arson. After a jury trial, by order entered on
September 8, 2011, he was convicted and sentenced to life,
without mercy, for first-degree murder and twenty years of
incarceration for first-degree arson, said sentences to run
consecutively. Petitioner filed a direct appeal, and this
Court affirmed his convictions. See State v. Davis,
232 W.Va. 398, 752 S.E.2d 429 (2013).
filed a pro se petition for writ of habeas corpus in the
circuit court on February 24, 2014. He was appointed counsel
and an amended petition was filed. Petitioner argued that his
rights under the Sixth Amendment of the United States
Constitution and Article III, Section 17 of the West Virginia
Constitution were violated by the ineffective assistance of
counsel, the evidence presented was insufficient to sustain
his conviction, he should have been granted a change of venue
because his trial was tainted by pretrial publicity, his
sentences are excessive, and the State knowingly used
perjured testimony. An omnibus hearing was held on November
11, 2016, and the circuit court denied petitioner habeas
corpus relief by order entered on December 28, 2016. It is
from this order that petitioner appeals.
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).
raises five assignments of error on appeal. First, he
contends that he is entitled to habeas corpus relief due to
ineffective assistance of counsel. Petitioner acknowledges
that ineffective assistance of counsel claims are governed by
the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which states that,
in order to prevail on a claim of ineffective assistance of
counsel, petitioner must show that "(1) [c]ounsel'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, in relevant part, State v. Miller, 194 W.Va. 3,
459 S.E.2d 114 (1995). Poncho Morris, one of petitioner's
trial attorneys, testified at the omnibus evidentiary hearing
that when he was preparing for sentencing, he discovered that
the forensic expert failed to test a certain ash mark on
petitioner's boot. Petitioner asserts that this evidence
could have been used to corroborate his defense that he was
inside of the house when the fire started, and therefore, the
first prong of Strickland has been met. He further
contends that the evidence could possibly have introduced
reasonable doubt, thereby satisfying the second prong of
Strickland. Petitioner also alleges that he received
ineffective assistance of counsel because his attorney failed
to move for a change of venue due to pretrial publicity.
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.
Miller, 194 W.Va. at 6, 459 S.E.2d at 117, syl. pt.
6. This Court "always . . . presume[s] strongly that
counsel's performance was reasonable and adequate[,
[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. We only
ask whether a reasonable lawyer would have acted, under the
circumstances, as defense counsel acted in the case at issue.
We are not interested in grading lawyers' performances;
we are interested in whether the adversarial process at the
time, in fact, worked adequately.
Id. at 16, 459 S.E.2d at 127. Certainly, with the
benefit of hindsight, "one always may identify
shortcomings, but perfection is not the standard for
ineffective assistance of counsel." Id. at 17,
459 S.E.2d at 128.
that petitioner has failed to satisfy the first prong set
forth in the Strickland test. The only evidence
petitioner introduced to support his contention that his
attorneys provided ineffective assistance was the testimony
of Mr. Morris at the omnibus hearing. Mr. Morris stated that
an ash mark on petitioner's boot should have been
forensically tested. However, petitioner provided no evidence
as to what the ash mark actually was or when it appeared on
his boot. Further, the record indicates that, at trial,
defense counsel attempted to discredit the fire
investigation, as well as evidence of gasoline on
petitioner's boot. Mr. Morris even argued during a motion
for a new trial that the ash mark on petitioner's boot
was evidence that he was inside the home when it caught fire.
Petitioner also failed to show that he should have had a