STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Clinton C. Simpson, 

Petitioner Below, Petitioner FILED 

September 5, 2017 

vs) No. 16-0202 (Kanawha County 15-P-63) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA David Ballard, Warden,
 

Mt. Olive Correctional Complex,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Clinton C. Simpson, by counsel Clinton W. Smith, appeals the Circuit Court of 

Kanawha County’s January 15, 2016, order denying his petition for writ of habeas corpus. 

Respondent David Ballard, Warden, by counsel David A. Stackpole, filed a response and 

supplemental appendix.1 On appeal, petitioner argues that the circuit court erred in denying his 

habeas petition on the grounds of ineffective assistance of trial counsel. 

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 circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In June of 2012, petitioner, who lived in a home separate from his wife, set his wife’s 

home on fire after becoming upset at rumors that she had cheated on him. He was later arrested 

and charged with arson in the first degree. At his trial, which commenced on November 4, 2013, 

four eyewitnesses placed petitioner at his wife’s home at the time of the fire and testified to 

seeing him pour a liquid over the home’s front porch. Three of the four witnesses testified that 

they smelled gasoline. Three witnesses also testified to seeing petitioner go to the rear of his 

wife’s home and, soon thereafter, seeing the rear of the home in flames. The jury returned a 

verdict of guilty. 

On November 27, 2013, petitioner was sentenced to a determinate term of twenty years 

of incarceration. He later filed a direct appeal claiming that the circuit court erred in denying his 

1

Petitioner originally listed Patrick A. Mirandy, Warden of Saint Marys Correctional 

Center, as respondent in this matter. However, petitioner is no longer housed at Saint Marys 

Correctional Center and is, instead, housed at Mt. Olive Correctional Complex. Pursuant to Rule 

41(c) of the Rules of Appellate Procedure, the name of the correct public officer has been 

substituted as respondent in this action. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

motion to dismiss the indictment for failure to preserve evidence and in denying his motion for a 

jury instruction on lost evidence. This Court affirmed petitioner’s conviction. See State v. 

Simpson, No. 13-1315, 2014 WL 6607481 (W.Va. Nov. 21, 2014)(memorandum decision). 

In February of 2015, petitioner filed a pro se petition for writ of habeas corpus in the 

circuit court. Counsel was thereafter appointed to represent petitioner in his habeas proceeding, 

and on August 11, 2015, petitioner filed an amended petition. Petitioner alleged that his trial 

attorneys rendered ineffective assistance due to their failure to adequately investigate petitioner’s 

case, sufficiently consult with petitioner, and their deficient conduct at trial. Petitioner argued 

that, had counsel met with him an adequate number of times, they could have presented evidence 

that petitioner did not start the fire at his wife’s home. Petitioner also stated that counsel did not 

prepare him to testify and that, had he testified, he would have explained that he did not have the 

means to ignite a fire. Petitioner also asserted that counsel failed to consult an expert witness 

who could have testified as to criminal responsibility and competency given petitioner’s history 

of alcohol abuse. Lastly, petitioner argued that counsel failed to prepare him adequately for 

sentencing. Namely, counsel purportedly failed to prepare him for allocution and failed to review 

the presentence investigation report with petitioner to correct inaccuracies. 

A hearing on petitioner’s amended habeas petition was held on November 9, 2015. At 

this hearing, the circuit court also heard argument on an additional claimed deficiency in 

petitioner’s representation, which centered on a remark made by the State during its closing 

argument. The State, in attempting to dispel any notion that one of the eyewitnesses who testified 

against petitioner was the individual who, in fact, started the fire, stated as follows: 

Not one person who took that stand told you they suspected 

Quinton Caldwell started that fire. 

They told you that he was on the front porch of the neighbor’s 

house. They told you that it was him that even helped clean up. 

They told you that he went and he was there and gave a statement 

– went down, gave a recorded statement. Because he’s trying to do 

the right thing. 

You know who didn’t stick around to give a statement, the only 

person involved in this case that did not stick around to give a 

statement? Clinton Simpson. Clinton Simpson is the one that 

disappeared. Clinton Simpson is the one that fled. That’s what 

guilty people do. 

Petitioner claimed that this remark allowed the jury to infer that his decision not to testify at trial 

evidenced his guilt. After considering all of these grounds, by order entered on January 15, 2016, 

his petition was denied. It is from this order that petitioner appeals. 

On appeal, petitioner claims that the circuit court erred in finding that he received 

effective assistance of counsel. In support of this contention, petitioner asserts that his trial 

counsel failed to meet with him a sufficient number of times prior to trial, that they failed to 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

discuss his right to testify thoroughly enough to allow him to make an informed decision on that 

issue, that they failed to properly counsel him on his right of allocution, and that they should 

have prepared him to testify in case he decided to testify at the last minute. Petitioner also claims 

that his counsel was deficient in failing to respond to or remedy the State’s closing argument 

remark. Petitioner asserts that counsel should have objected to the remark, sought a limiting 

instruction, or sought an instruction on flight. Finally, petitioner notes that during his habeas 

hearing, his trial counsel admitted to not being fully prepared to try his case. Specifically, one of 

his trial attorneys lamented the inability to locate a witness, testified that there were several 

“loose ends” in their investigation that she would have liked to have “tied up,” and that she 

should have filed a motion to continue. 

This Court reviews appeals of circuit court orders denying habeas corpus relief under the 

following standard: 

“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). 

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. 

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995). 

Petitioner first contends that his trial counsel failed to meet with him a sufficient number 

of times prior to trial. Petitioner contends that counsel met with him only three times prior to 

trial; however, he has cited no law mandating that counsel meet with his or her client a specific 

number of times, nor has he articulated on appeal how the result at trial would have been 

different had additional meetings occurred. Instead, for this and every other ground raised, 

petitioner merely asks this Court to presume that the result of the proceedings would have been 

different. 

At petitioner’s omnibus hearing, one of his trial attorneys testified to meeting with 

petitioner four times prior to trial, while the other testified to meeting with him “multiple” times. 

An in-depth review of one of his trial attorney’s case file was undertaken during this hearing. 

The circuit court noted that the 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

file is replete with indicia of competent, effective counsel. It 

includes her work time sheets showing seventy-eight hours of 

preparation and work on the [p]etitioner’s case, pages of 

handwritten notes of [counsel’s] preparation for trial and meetings 

with the [p]etitioner, over a dozen email correspondences between 

[counsel and co-counsel] concerning the [p]etitioner’s case, and 

typed outlines of cross examinations, arguments for motions and 

objections, and closing argument. 

This recitation does not include the work performed by petitioner’s other attorney, nor does it 

include the work performed by a private investigator engaged by counsel to assist in 

investigating the case. Petitioner does not explain what more counsel could have done, or how 

additional meetings would have changed the outcome of his trial. For these reasons, the circuit 

court’s conclusion that “trial counsel acted objectively reasonable and within the realm of 

professional assistance in the preparation for the [p]etitioner’s trial” is not clearly erroneous. 

Next, petitioner claims that trial counsel failed to discuss his right to testify in a manner 

that allowed him to make an informed decision about whether to testify. He further states that 

counsel should have prepared him to testify, even though he chose not to, in case of a last minute 

change in plans. In his appeal to this court, petitioner fails to outline what his testimony would 

have been and, importantly, how that testimony would have altered the outcome of his trial. 

Petitioner’s amended petition for writ of habeas corpus claims that his testimony would have 

been that he did not have the means to ignite the fire and that someone else ignited the fire. The 

circuit court rejected this claim, however, because petitioner failed to identify who started the 

fire and because the eyewitness testimony against him was overwhelming. Witnesses testified to 

seeing petitioner with a lighter lighting his own cigarettes, to his presence at the scene of the 

crime, to seeing him pour liquid on the victim’s home, and to seeing him disappear behind the 

victim’s home just before flames became visible. We find that the circuit court’s findings on this 

issue are not clearly erroneous. 

Petitioner also claims that trial counsel failed to adequately prepare him for sentencing. 

Specifically, counsel purportedly failed to counsel him on his right of allocution. Other than to 

say that this right affords a defendant the opportunity to ask for mercy, explain their conduct, 

express remorse, and accept responsibility, petitioner does not outline any specific testimony he 

would have offered had he exercised his right of allocution. He also fails to articulate how 

exercising this right would have changed the outcome of the proceedings. The circuit court found 

this ground to be without merit because petitioner failed to identify evidence that his trial counsel 

failed to prepare him for sentencing. Moreover, petitioner was asked at sentencing whether he 

wished to make any comments. He replied, “[n]o, sir.” Accordingly, the circuit court’s finding 

that this ground lacks merit is not clearly erroneous. 

Petitioner also assigns as error trial counsel’s failure to respond to or remedy the 

aforementioned remarks the State made during its closing argument. Petitioner claims the 

remarks allowed the jury to infer that petitioner’s failure to testify at trial was evidence of his 

guilt. Petitioner claims that trial counsel should have objected and asked for a limiting instruction 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

or for an instruction on flight. However, the circuit court concluded that the State’s remarks did 

not refer to petitioner’s decision not to testify at trial but concerned only the petitioner’s conduct 

on the night he set fire to his wife’s home. The circuit court also noted that the jury was 

instructed on petitioner’s constitutional right not to testify and that his exercise of that right 

cannot be considered evidence of his guilt. Thus, the circuit court found no merit to this 

argument. With respect to petitioner’s contention that counsel should have objected or sought an 

additional jury instruction, we note that petitioner has failed to articulate how, in the face of the 

circuit court’s instruction on petitioner’s right not to testify and the eyewitness testimony against 

him, any objection or instruction would have produced a different result at trial. As a result, the 

circuit court’s finding that this ground is without merit is not clearly erroneous. 

Finally, petitioner argues that trial counsel’s failure to be adequately prepared for trial 

amounted to ineffective assistance of counsel. Petitioner claims that counsel were not able to 

locate a witness or tie up loose ends in their investigation; therefore, they should have filed a 

motion to continue the trial to locate the witness and to be fully prepared. At petitioner’s 

omnibus hearing, one of his trial attorneys admitted to feeling as though counsel should have 

been more prepared for trial. The circuit court rejected this statement, however, following the 

review of this attorney’s case file, as described above. Additionally, petitioner’s other trial 

counsel testified to having had ample time to prepare for trial and defend petitioner. The circuit 

court also noted trial counsel’s engagement of a private investigator, who, among other things, 

attempted to locate the missing witness. The record reveals that the investigator was unable to 

find this witness, however, because she had been evicted from her home. Importantly, petitioner 

does not set forth what the missing witness’s testimony would have been had she testified, and 

he does not indicate what loose ends remained or what additional investigation would have 

revealed. Petitioner further fails to articulate how the missing witness’s testimony or any 

additional investigation would have altered the outcome of the trial. Consequently, we find that 

the circuit court’s conclusion that petitioner failed to satisfy either prong of Strickland/Miller is 

not clearly erroneous. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: September 5, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

5