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 Ballard1 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. 

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underlying 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 comments 

made 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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