Brent D. Benjamin

(Jackson County 10-C-67)

MEMORANDUM DECISION

Petitioner Brian C. Morgan, by counsel Matthew A. Victor, appeals the November 19, 2011 order of the Circuit Court of Jackson County denying his petition for writ of habeas corpus. Respondent Ballard, by counsel Robert D. Goldberg, filed a response, to which petitioner has filed a reply.

The 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.

Following a jury trial, petitioner was convicted of five counts of first degree sexual assault and ten counts of possession of child pornography related to a pattern of sexual contact with a minor relative, including the taking of pornographic pictures of the child. By order entered on June 11, 2008, and corrected by entry of an order on March 24, 2009, petitioner was sentenced to a combined term of thirty-four to seventy-four years of incarceration for his convictions. Thereafter, petitioner appealed his criminal convictions, though this Court refused the petition for appeal by order entered on October 29, 2009. Petitioner then filed, pro se, a petition for writ of habeas corpus and the circuit court appointed Matthew Victor to represent petitioner in his circuit court habeas proceeding. An amended petition was filed, after which the circuit court held an omnibus evidentiary hearing on February 14, 2011. By order entered on November 19, 2011, the circuit court denied the petition for habeas relief.

On appeal, petitioner alleges that it was error for the circuit court to deny his petition for writ of habeas corpus. In support, petitioner re-alleges the grounds for relief raised in his circuit court petition. Specifically, petitioner alleges that he received ineffective assistance of counsel at every stage of the proceedings below, resulting in the following errors: failure to seek an independent mental competency, criminal responsibility and diminished capacity evaluation; failure to protest petitioner's desire to testify, resulting in disastrous testimony; failure to hold a hearing on voluminous evidence which petitioner believed should have been excluded pursuant to Rule 404(b) of the West Virginia Rules of Evidence; failure to require notice of the alleged Rule 404(b) evidence; failure to recognize problems with petitioner's confession as addressed in Missouri v. Seibert, 542 U.S. 600 (2004); allowing Dr. Ralph Smith to perform the competency and criminal responsibility evaluation and draft the post-trial report; failure to raise issues of prompt presentment; abandonment of petitioner's motion to examine the victim; failure to interview the victim; failure to challenge the seating of biased jurors; introduction of evidence of an additional assault upon the victim by petitioner; and failure to argue that conviction of ten counts of possession of child pornography, in violation of West Virginia Code § 61-8C-3, should have been limited to one count, thereby exposing petitioner to double jeopardy.

Respondent argues that the circuit court did not err in denying the petition for habeas relief and that there is no evidence to support the assertion that petitioner suffered from a mental illness or defect which rendered him incompetent to stand trial or incompetent at the time of the offense. According to respondent, petitioner was competent and his confession was entirely admissible because it was voluntary, knowing, and intelligent. Further, respondent argues that the evidence of which petitioner complains does not fall under the ambit of Rule 404(b) of the West Virginia Rules of Evidence. According to respondent, petitioner also failed to establish that he received ineffective assistance of counsel because he could not satisfy either prong of the Strickland test. Lastly, respondent argues that West Virginia Code § 61-8C-3 is not facially void for vagueness nor did it subject petitioner to double jeopardy.

This Court has previously held that

[i]n 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.

For the foregoing reasons, we find no error in the decision of the circuit court and its November 19, 2011 order denying the petition for writ of habeas corpus is affirmed.

Affirmed.

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