STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Brian W., FILED 

Petitioner Below, Petitioner January 8, 2018 

EDYTHE NASH GAISER, CLERK vs) No. 17-0185 (Randolph County 14-C-105) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Michael Martin, Acting Warden, 

Huttonsville Correctional Center, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Brian W., by counsel Jeremy B. Cooper, appeals the Circuit Court of Randolph 

County’s February 14, 2017, order denying his petition for writ of habeas corpus. Respondent 

Michael Martin, Acting Warden, by counsel Gordon L. Mowen II, filed a response.1 Petitioner 

filed a reply. On appeal, petitioner argues that the circuit court erred in denying his petition, 

which was based on the grounds of the State’s failure to disclose material information, the 

State’s misconduct in using slurs during the trial, ineffective assistance of counsel, and 

cumulative error. 

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 October of 2010, petitioner was indicted on one count of sexual abuse by a parent, 

guardian, or custodian and one count of first-degree sexual assault. The victim was the minor 

daughter of petitioner’s girlfriend. 

Before trial, petitioner’s trial counsel sought to exclude the testimony of a Child 

Protective Services (“CPS”) worker, Allyson Scott. The parties ultimately stipulated that Ms. 

Scott would not offer any testimony at trial other than to lay a sufficient foundation to introduce 

a videotaped interview of the minor victim. This interview, a competency evaluation, was 

1

Since the filing of the petition in this case, the warden at Huttonsville Correctional 

Center has changed and the acting warden is now Michael Martin. The Court has made the 

necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate 

Procedure. 

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performed as a courtesy arranged by the Department of Health and Human Resources 

(“DHHR”), and was not performed by the psychologist the circuit court had ordered to perform 

the evaluation. Before trial commenced, petitioner was given the opportunity to continue the 

matter in order to obtain an additional competency evaluation. When asked how he wished to 

proceed, petitioner responded “I’d like to get it over with.” As such, the matter proceeded to a 

jury trial in which petitioner was convicted of both counts and sentenced to the maximum term, 

an effective sentence of twenty-five to fifty-five years of incarceration. Petitioner appealed his 

sentence to this Court, and the appeal was denied in State v. Ward, No. 12-0300, 2013 WL 

3185079 (W.Va. June 24, 2013) (memorandum decision). 

Subsequently, petitioner filed the instant habeas corpus matter, raising seven grounds for 

relief. These issues were considered at an omnibus hearing held in July of 2016. By order dated 

February 14, 2017, the circuit court denied petitioner’s petition for writ of habeas corpus. It is 

from this order that petitioner appeals. 

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). 

On appeal, petitioner first argues that the circuit court erred in not finding that the State 

failed to disclose documentation relevant to his defense. Specifically, petitioner alleges that 

subsequent to the trial, trial counsel became aware that Ms. Scott, the CPS worker in the case, 

had been disciplined in 2007 for poor job performance in a matter unrelated to petitioner’s 

criminal proceedings. Petitioner argues that the State was required to disclose documentation 

related to Ms. Scott’s disciplinary action as it falls under “impeachment evidence” as described 

in State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).2 We disagree. In order to obtain 

relief, petitioner must establish that the prosecution was aware of, but withheld exculpatory 

evidence. See Syl. Pt. 4, State v. Hatfield, 169 W.Va. 191, 286, S.E.2d 402 (1982); Brady v. 

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). In Youngblood, this Court recognized that a 

“police investigator’s knowledge of evidence in a criminal case is imputed to the prosecutor . . . 

.” 221 W.Va. at 22, 650 S.E.2d at 121, Syl. Pt. 1. 

As the circuit court noted, Ms. Scott is not a police investigator. However, petitioner 

attempts to navigate around this fact by arguing that Ms. Scott falls under the penumbra of the 

2

Petitioner failed to include the documentation regarding Ms. Scott’s disciplinary history 

in the record on appeal. 

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term as a member of the investigation team, noting that this Court stated in its opinion in 

Youngblood that “[t]he decision in Kyles [v. Whitely, 514 U.S. 419 (1995)] stands for the 

proposition that ‘it is proper to impute to the prosecutor’s office facts that are known to the 

police and other members of the investigation team.’” 221 W.Va. at 27, 650 S.E.2d at 126. 

Petitioner argues that Ms. Scott is a member of the investigation team, especially in light of the 

fact that the prosecutor relied heavily on the investigation performed by CPS in order to prove 

the charges brought against petitioner. We disagree. Ms. Scott was a CPS worker and no 

evidence in the record suggests that she was acting as a police investigator at any time during the 

underlying proceedings. Moreover, the record indicates that petitioner admitted that he had no 

“factual basis to assert that the [p]rosecuting [a]ttorney [ ] had any actual knowledge of Allyson 

Scott’s disciplinary record . . . .” Thus, petitioner failed to establish that the prosecutor had 

knowledge of impeachment evidence, imputed or otherwise, that necessitated disclosure to 

petitioner. 

Even assuming, arguendo, that Ms. Scott is a member the investigation team within the 

meaning of Kyles, the failure to disclose the documentation regarding her disciplinary history 

does not constitute a violation of petitioner’s constitutional due process rights under Brady. 

While petitioner argues that the State had a duty to disclose this impeachment evidence prior to 

trial, we do not agree. We have previously held that 

[t]here are three components of a constitutional due process violation 

under Brady v. Maryland, [ ] (1) the evidence at issue must be favorable to the 

defendant as exculpatory or impeachment evidence; (2) the evidence must have 

been suppressed by the State, either willfully or inadvertently; and (3) the 

evidence must have been material, i.e., it must have prejudiced the defense at trial. 

Youngblood, 221 W.Va. at 22, 650 S.E.2d at 121, Syl. Pt. 2. As mentioned, the parties stipulated 

that Ms. Scott would only testify in order to lay the foundation for a video of an interview of the 

victim. During the omnibus hearing, trial counsel testified that limiting Ms. Scott’s testimony 

was part of his defense strategy, as he believed she had a tendency to be over-zealous and would 

supply more information than necessary while testifying. Trial counsel was successful in this 

endeavor as Ms. Scott only testified to foundational matters. She did not offer any substantive 

testimony at trial and thus, there was no need to impeach or attack her credibility. Further, this 

document does not appear to be material as it regards actions taken by Ms. Scott three years 

before petitioner’s trial and was in no way related to his case. As such, petitioner’s argument that 

the circuit court erred by not finding that the State should have disclosed Ms. Scott’s disciplinary 

history is without merit. 

Petitioner next argues that the circuit court erred in finding that the State’s use of the term 

“deadbeat” during closing argument did not rise to the level of prejudice to petitioner.3 Despite 

3

During the trial, the prosecutor made statements highlighting petitioner’s unemployment 

and called him a “deadbeat” during rebuttal. These statements were made in an effort to highlight 

petitioner’s unemployment because he was accused of sexual abuse as a parent, guardian, or 

(continued . . . ) 

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petitioner’s argument to the contrary, the prosecutor’s use of the term “deadbeat” is not of 

constitutional magnitude and is not cognizable in habeas petitions. 

Petitioner next assigns as error the circuit court’s failure to find that he received 

ineffective assistance of counsel. Specifically, petitioner contends that his trial counsel failed to 

move to admit the magistrate court disposition sheet into evidence, failed to obtain a second 

competency evaluation, and failed to object to the state’s use of the improper and prejudicial 

term “deadbeat” during closing argument.4 

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, 459 S.E.2d 114 (1995). Furthermore, 

[i]n reviewing counsel’s performance, courts must apply an objective 

standard and determine whether, in light of all the circumstances, 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 secondguessing of trial counsel’s strategic decisions. Thus, a reviewing court asks 

whether a reasonable lawyer would have acted, under the circumstances, as 

defense counsel acted in the case at issue. 

Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6. 

custodian while he was supposed to be babysitting the victim. This exact term was used only 

once and his state of unemployment was referenced only a few times. 

4

Petitioner also asserts ineffective assistance of counsel due to trial counsel’s alleged 

failure to instruct him regarding his constitutional right to remain silent or testify on his own 

behalf. However, this claim was raised in neither the original habeas petition nor the amended 

petition below. Despite this omission and despite several objections by the State, the circuit court 

allowed petitioner to develop his argument on the record during the omnibus hearing, after 

noting that it was outside the scope. When the order was issued, the circuit court did not make 

any findings regarding this claim. In any event, the transcript from the trial proceedings 

establishes that trial counsel indicated that he discussed this right with petitioner. Further, when 

expressly asked by the circuit court, petitioner agreed that he and his attorney discussed his right 

to testify or remain silent at “great length.” Finally, the circuit court informed petitioner of his 

right to testify or remain silent numerous times, in great detail. As such, we find that petitioner is 

not entitled to relief in this regard. 

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Petitioner’s first contention regarding his claim of ineffective assistance is that trial 

counsel failed to move a magistrate court disposition sheet into evidence, a failure that he claims 

is deficient under an objective standard of reasonableness. We disagree. Prior to the proceedings 

leading to trial, trial counsel initially obtained a “no probable cause” finding at the preliminary 

hearing in magistrate court. During the course of the trial, trial counsel had the opportunity to 

cross-examine the State’s first witness, Trooper K.A. Corley. Trial counsel was able to extract 

from Trooper Corley testimony that there was a “no probable cause” finding at the magistrate 

level. However, trial counsel failed to move the magistrate court disposition sheet into evidence 

and admitted to such at the omnibus hearing. Trial counsel testified “I think probably the reason 

it wasn’t in the forefront of my mind during the course of trial is because I had already elicited 

that testimony from Trooper Corley.” In looking at the standard set forth in Strickland, we find 

no error. While trial counsel admitted that he unintentionally omitted this disposition sheet, there 

is no evidence suggesting that it was prejudicial to petitioner, especially in light of the fact that 

the same testimony was elicited during cross-examination. Petitioner fails to show how, absent 

trial counsel’s omission, the result of his trial would be any different. As such, we agree with the 

circuit court’s decision that trial counsel’s omission did not constitute ineffective assistance of 

counsel. 

Petitioner’s second contention regarding his claim of ineffective assistance is that trial 

counsel should have obtained an additional competency evaluation prior to trial. We find no 

merit in petitioner’s claim. Petitioner’s argument here ignores the fact that it was he who 

changed the course of his case. In the proceedings below, petitioner was given the opportunity to 

continue the matter in order to obtain an additional competency evaluation, as there had only 

been a “courtesy interview” performed, despite orders from the circuit court for a competency 

evaluation to be performed by a neutral person. When asked how he wished to proceed, 

petitioner responded “I’d like to get it done and over with.” Accordingly, the trial proceeded. 

During the omnibus hearing, trial counsel testified that petitioner was asked how he wanted to 

proceed, that he chose not to continue the hearing, and that trial counsel was not going to “get in 

his way on that.” Trial counsel also testified that he agreed with petitioner’s decision to proceed 

to trial, noting that obtaining an additional competency evaluation might have hurt petitioner’s 

position in the event that the medical professional was permitted to testify at trial. The record 

indicates that petitioner was given the option of continuing the trial but wished to proceed as 

scheduled. Thus, we find that the circuit court did not abuse its discretion in finding that counsel 

did not render ineffective assistance of counsel based upon this allegation. 

Petitioner’s final contention is that he received ineffective assistance when trial counsel 

failed to object to the State’s use of the term “deadbeat.” As previously mentioned, we have 

found that the State’s isolated use of the term “deadbeat” was not of constitutional magnitude. 

Trial counsel testified during the omnibus hearing that the comment was irrelevant and that, had 

he felt the comment was prejudicial, he would have raised it in post-trial motions. We find no 

deficiency in trial counsel’s actions. Based on the evidence of record, petitioner has failed to 

establish that he received ineffective assistance of counsel under any and all of the allegations set 

forth and, therefore, the circuit court did not err in finding petitioner merited no relief in this 

regard. 

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Petitioner’s final assignment of error is that the circuit court erred cumulatively, 

prejudicing him. We find petitioner’s argument to be without merit. 

For the foregoing reasons, we affirm the circuit court’s February 14, 2017, order denying 

petitioner’s petition for writ of habeas corpus. 

Affirmed. 

ISSUED: January 8, 2018 

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 

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