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Jessica M. v. Sallaz

Supreme Court of West Virginia

June 7, 2019

Jessica M., Petitioner Below, Petitioner
v.
J.D. Sallaz, Superintendent, Lakin Correctional Center, Respondent Below, Respondent

          Ohio County 10-C-406

          MEMORANDUM DECISION

         Petitioner 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.[1]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.[2] Petitioner filed a reply.

         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 affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In 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).[3]

         On November 19, 2010, petitioner filed a petition for writ of habeas corpus.[4] Counsel was appointed for petitioner and, on December 27, 2013, an amended petition for writ of habeas corpus was filed on petitioner's behalf.[5] On July 11, 2016, petitioner filed a supplemental amended petition for writ of habeas corpus, to which respondent responded.[6] 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).

         On 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.

         In her 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.

         In 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.

         Here, 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.[7] 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.

         Petitioner 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."

         Thus, 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 ...


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