Jessica M., by counsel Tanya Hunt Handley, appeals the
November 29, 2017, order of the Circuit Court of Ohio County
denying her petition for writ of habeas corpus.Respondent J.D.
Sallaz, Superintendent, Lakin Correctional Center, by counsel
Elizabeth Davis Grant, filed a summary response in support of
the circuit court's order. Petitioner filed a reply.
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.
October of 2008, petitioner was convicted of one count of
conspiracy, three counts of first-degree sexual assault, four
counts of sexual abuse by a parent or guardian, and three
counts of incest. As a result, she was sentenced to not less
than 101 years and not more than 235 years in prison. This
Court affirmed petitioner's convictions following her
direct appeal in State v. Jessica Jane M., 226 W.Va.
242, 700 S.E.2d 302 (2010).
November 19, 2010, petitioner filed a petition for writ of
habeas corpus. Counsel was appointed for petitioner and,
on December 27, 2013, an amended petition for writ of habeas
corpus was filed on petitioner's behalf. On July 11, 2016,
petitioner filed a supplemental amended petition for writ of
habeas corpus, to which respondent responded. The circuit court
held a hearing on petitioner's supplemental amended
petition on July 3, 2017. By order entered November 29, 2017,
the circuit court denied petitioner's requested relief
finding that petitioner failed to provide sufficient evidence
to support her claims. It is from the circuit court's
November 29, 2017, order that petitioner now appeals.
"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 asserts three assignments of error. First,
petitioner argues that she received ineffective assistance of
trial counsel. Second, petitioner contends that she was
deprived of a fair trial based upon respondent's use of
allegedly "false evidence." Third, petitioner
argues that the circuit court erred in failing to grant her
motion to disqualify the prosecuting attorney's office.
Our review of the record supports the circuit court's
decision to deny petitioner's petition for writ of habeas
corpus as to each of the asserted assignments of error. We
will address each alleged error in turn.
first assignment of error, petitioner argues that she is
entitled to habeas relief, as her trial counsel was
ineffective. Generally, as to ineffective assistance of
counsel claims, this Court has held that such claims are
governed by the two-pronged test established in
Strickland v. Washington, 466 U.S. 668 (1984),
adopted by this Court in Syllabus Point 5 of State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995):
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.
discussing claims of ineffective assistance of counsel, this
Court has held that "[o]ne who charges on appeal that
his trial counsel was ineffective and that such resulted in
his conviction must prove the allegation by a preponderance
of the evidence." Syl. Pt. 4, State ex rel Kitchen
v. Painter, 226 W.Va. 278, 700 S.E.2d 489 (2010) (citing
Syl. Pt. 22, State v. Thomas, 157 W.Va. 640, 203
S.E.2d 445 (1974)). We have further ruled that in reviewing
counsel's performance, courts must determine whether
"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 6, 459 S.E.2d
at 117, syl. pt. 6, in part.
petitioner contends that her trial counsel's assistance
was ineffective in four respects and argues that such
ineffective counsel resulted in her conviction. First,
petitioner alleges that her counsel's action in asking
the victim, petitioner's then nine-year-old daughter, at
trial, "[h]ow many different men did you have sex
with?" was ineffective, shocking, and
unreasonable. On direct appeal, petitioner argued that
the circuit court erred in applying rape shield law to
prohibit petitioner's counsel from asking the victim with
how many men had she had sex. In Jessica Jane M.,
this Court determined that petitioner failed to make the
proper evidentiary presentation prior to asking such
questions, as mandated in State v. Quinn, 200 W.Va.
432, 490 S.E.2d 34 (1997), and found no error. See
Jessica Jane M., 226 W.Va. at 254, 700 S.E.2d at 314.
now argues that her counsel's failure to follow the
procedures outlined in Quinn fell "well short
of the" objective standard of reasonableness and that,
but for her counsel's unprofessional errors, the result
of the proceedings would have been different. We disagree. We
are not persuaded that the actions or inactions of
petitioner's trial counsel with regard to his questioning
of the victim changed the results of the proceedings. Here,
as the circuit court noted in its order denying
petitioner's amended supplemental petition for writ of
habeas corpus, petitioner was not prejudiced as her counsel
was "permitted to ask questions about other false
accusations [reportedly made by the victim] to other
witnesses and to speak about the [victim's allegedly
false statements] in his opening and closing."
we find that petitioner did not establish, by a preponderance
of evidence, that her trial counsel was ineffective or that
such ineffective assistance resulted in her conviction, as
required by Miller. Rather, the evidence presented
against her at trial overwhelmingly established
petitioner's depraved sexual abuse of her young daughter.
Such evidence included the compelling testimony of the young
victim who recalled that "her mother held her down while
[the mother's] boyfriend had raped" her and that
petitioner "put her fingers inside of the victim's
vagina, made the victim touch her breast, performed oral sex
on the victim, and made the victim perform oral sex on
her." See Jessica Jane M., 226 W.Va. at 248,
700 S.E.2d at 308. The victim's ...