STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Clinty Nelson, 

### FILED Petitioner Below, Petitioner February 11, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 11-1487 (Mingo County 06-C-396) OF WEST VIRGINIA

David Ballard, Warden Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Clinty Nelson, by counsel, Ashley Dingess Cochran, appeals the circuit court’s order entered March 14, 2011, denying his petition for writ of habeas corpus. Warden Ballard 1 of Mount Olive Correctional Complex, by counsel Benjamin F. Yancey, filed a response in support

of the circuit court’s order.

This Court has considered the parties’ briefs and the appendix 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 Rules of Appellate

Procedure.

Petitioner was found guilty by a jury on March 31, 2005, of first degree murder, kidnapping, first degree sexual assault, and three counts of conspiracy. Petitioner was sentenced to two consecutive life sentences without mercy, plus eighteen to fifty years of incarceration. Petitioner’s direct appeal was denied by this Court on May 26, 2006. On October 3, 2006, petitioner filed a petition for writ of habeas corpus on seven different bases: ineffective assistance of counsel, failure of the prosecutor to present testimony of three individuals with exculpatory evidence, double jeopardy, ineffective assistance of counsel on direct appeal, prosecutorial misconduct, insufficient evidence to establish that petitioner was guilty beyond a reasonable doubt, and admission of gruesome photographs. The circuit court issued a lengthy order entered on March 14, 2011, denying relief on all counts. Petitioner now appeals the denial of his habeas corpus petition below.

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

1 Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have replaced the respondent party’s name with Warden David Ballard. The initial respondent on appeal, Thomas McBride, is no longer the warden of Mount Olive Correctional Complex.

1underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines , 219 W. Va. 417, 633 S.E.2d 771 (2006).

On appeal, petitioner argues that the circuit court erred in finding no ineffective assistance of counsel, arguing that counsel was ineffective in: (1) failing to object to prejudicial commentsmade by the prosecutor, (2) failing to call witnesses to impeach the credibility of two codefendants, (3) failing to call doctors to impeach the credibility of co-defendant Zandell Bryant, (4) failure to object to a trooper’s testimony regarding DNA testing, (5) failure to request DNA testing that could have shown petitioner’s semen was not inside the victim, and (6) failure to ask petitioner’s expert witness and treating physician whether petitioner was physically able to commit the crimes for which he was being tried. Petitioner states that “each omission by trial counsel, when considered individually, caused trial counsel’s performance to fall below the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law . . . [and that w]hen all omissions are [considered] together, trial counsel’s performance most certainly” was ineffective.”

The State responds that petitioner did not show an abuse of discretion by the court below. Specifically, the State argued that none of the comments made by prosecution were prejudicial to the petitioner. The State argues that impeaching the witnesses was unnecessary because trial counsel exposed inconsistencies during cross-examination, and that the state trooper’s testimony about DNA was an obvious statement, not, as petitioner says, expert testimony. Finally, the State argues that the “failure” to seek DNA evidence or ask about petitioner’s physical ability to commit the crime were strategic decisions to avoid risking further incrimination of the petitioner.

The Court has carefully considered the merits of each of petitioner’s arguments as set forth in his petition for appeal. Finding no error in the denial of habeas corpus relief, the Court incorporates and adopts, the circuit court’s detailed and well-reasoned “Final Order Denying

Petitioner’s Petition for Writ of Habeas Corpus ” entered March 14, 2011, insofar as it addresses the assignments of error appealed herein, and directs the Clerk to attach the same hereto.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED : February 11, 2013

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

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