STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

Wade Painter, June 15, 2016 

released at 3:00 p.m. Petitioner RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 15-0540 (Berkeley County 09-C-573) 

David Ballard, Warden, Mount Olive Correctional Complex, 

Respondent 

MEMORANDUM DECISION 

Petitioner Wade Painter, by counsel Ben J. Crawley-Woods, appeals the orders of 

the Circuit Court of Berkeley County, entered on December 16, 2014 and May 8, 2015, 

denying his petition for writ of habeas corpus. Respondent David Ballard, the warden of 

Mount Olive Correctional Complex (“the State”),1 by counsel Christopher C. Quasebarth, 

filed a response. 

This Court has considered the parties’ briefs, oral arguments, and the record on 

appeal. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the 

Rules of Appellate Procedure and is appropriate for a memorandum decision rather than 

an opinion. For the reasons expressed below, we reverse the December 16, 2014, order, 

remanding the case with directions. We affirm the May 8, 2015, order. 

I. Factual and Procedural Background 

On September 14, 2005, Raymond White, Jr. and his son, Raymond White, IV, 

were found dead in their home in Berkeley County, West Virginia. Both men had been 

shot. Upon investigating the scene, the police discovered that personal property had been 

stolen from the home. On or about September 14, 2005, property was stolen from two 

other homes in the area. 

The record reflects that William Barrett, a friend of the Whites, arrived at the 

Whites’ home on September 14, 2005, at about 3:45 p.m. and found it in a state he 

considered unusual: There was a note on the house that said the victims were out of town, 

1 To the extent that respondent David Ballard, in his capacity as the warden of 

Mount Olive Correctional Complex, is represented by the Berkeley County Prosecuting 

Attorney’s office, we will hereinafter refer to Mr. Ballard as “the State.” 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

blankets and curtains covered the windows, the sliding glass door at the back of the house 

was open, and items belonging to the victims were strewn about the back yard. Upon 

looking in the house, Mr. Barrett noticed more of the victims’ belongings in the floor of 

the home, including plants that had been knocked over. Mr. Barrett called a friend, Alec 

Hall, out of concern that his friends, the Whites, had been robbed or that the Whites had 

been involved in a fight. At Mr. Hall’s direction, Mr. Barrett drove to Mr. Hall’s house. 

Then Mr. Barrett, Mr. Hall, Bradford Hall, and Lori Love all drove back to the White 

residence. It was then that they discovered the bodies and called the police. 

Upon investigating the deaths, the police learned that a Mazda MX-6 and other 

items were missing from the home. At about 8:30 a.m. on September 15, 2005, police 

located the Mazda MX-6, which had been abandoned behind a garage. Later that 

morning, upon reading about the killings and the missing vehicle in the newspaper, John 

Beitzel contacted the police and informed them that he witnessed the tenant of one of his 

rental properties in possession of a car matching the description of the stolen Mazda MX6. That tenant, Wade Painter, lived together with his girlfriend, Angela Conner, in the 

rental property. 

After speaking with Mr. Beitzel, Corporal Brendon Hall and Sergeant Ted Snyder 

drove to Mr. Painter’s residence to question him about the Mazda MX-6 at approximately 

11:30 a.m. According to the officers, Mr. Painter refused to admit them to his home; 

however, Mr. Painter agreed to speak with them outside the home. Ms. Conner was home 

at the time and aware that Mr. Painter had refused to allow police to enter the residence. 

A short while after conversing with the officers, Mr. Painter willingly accompanied the 

officers in their unmarked vehicle to the police station to answer further questions. 

After Mr. Painter left with the officers, Ms. Conner contacted her father, Monte 

Conner, and told him that Mr. Painter was with the police and that her home was full of 

property she did not believe belonged to Mr. Painter. On his daughter’s behalf, Mr. 

Conner called his neighbor, Captain Dennis Streets. Mr. Conner relayed his daughter’s 

concerns to Cpt. Streets, and informed Cpt. Streets that Ms. Conner would allow the 

police to search her residence. 

Cpt. Streets drove to the home, and Ms. Conner gave him permission to enter. The 

entry of the residence was premised on Ms. Conner’s permission; no search warrant was 

ever obtained to search the residence. With the help of other officers, Cpt. Streets 

collected and photographed the property Ms. Conner identified as not belonging to her or 

Mr. Painter. Among other things, the officers found a red duffle bag with items appearing 

to have blood on them and a dog tag bearing the name of one of the Whites. Cpt. Streets 

then called Cpl. Hall, who was interrogating Mr. Painter at the police station, and 

informed Cpl. Hall of his findings. Mr. Painter was placed under arrested. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the death of the Whites, and the looting of the Whites’ home and the two other 

homes, petitioner Wade Painter was indicted on one count of Daytime Burglary by 

Entering without Breaking, one count of Grand Larceny, one count of Daytime Burglary 

by Breaking and Entering, one count of Petit Larceny, two counts of First Degree 

Murder, and one count of Possession of a Stolen Vehicle. Following a five-day jury trial, 

Mr. Painter was convicted and sentenced on all counts. He did not receive a 

recommendation of mercy on the murder convictions, and he received two life without 

mercy sentences for the two murder convictions. 

Mr. Painter filed a motion requesting a new trial and a motion for judgment of 

acquittal notwithstanding the verdict, arguing that the fruits of the search of his home 

should have been suppressed, that the statement he gave to a particular police officer after 

invoking his right to counsel should have been suppressed, and that he was entitled to a 

directed verdict. These motions were denied. Mr. Painter appealed his conviction to this 

Court, asserting the same three arguments he raised in his post-trial motions. By order 

dated February 3, 2009, the Court refused Mr. Painter’s direct appeal. 

Through counsel, Mr. Painter filed an amended petition for habeas corpus in the 

Circuit Court of Berkeley County (hereinafter “habeas court”), raising the following eight 

contentions: (1) that he was subjected to an illegal seizure and arrest at his home on 

September 15, 2005, and that his trial and appellate counsel were ineffective by failing to 

challenge the same; (2) that his trial and appellate counsel failed to investigate, raise, and 

assert that the seizure of property from his home without a warrant was illegal; (3) that 

his trial and appellate counsel failed to investigate, raise, and assert that his prompt 

presentment right was violated; (4) that he was denied a fair trial by the State’s improper 

admission of evidence, and that his trial and appellate counsel were ineffective by failing 

to challenge the admission of the evidence; (5) that he was denied a fair trial as a result of 

the prosecutor and the trial judge’s improper remarks during closing arguments, and that 

his appellate counsel was ineffective by failing to challenge the same on appeal; (6) that 

he was denied a fair trial as a result of the State’s failure to collect, test, and/or disclose 

potentially exculpatory evidence, and that the failure of his trial and appellate counsel to 

challenge this behavior below constituted ineffective assistance of counsel; (7) that his 

assignments of error raised in his direct appeal entitle him to relief; and (8) that the 

cumulative weight of the errors within his trial warrant granting a new trial.2 The habeas 

2 Mr. Painter’s habeas corpus petition raised a ninth contention, in which he 

argued that money he is ordered to pay in restitution is being wrongfully deducted from 

his inmate account. On the same day that Mr. Painter filed his petition for writ of habeas 

corpus, May 23, 2014, he also filed a Motion to Amend Order of Restitution Payments 

pro se. The court denied that motion by order entered on May 28, 2014, and accordingly 

refused to further address the issue in the December 16, 2014, order. Mr. Painter’s 

restitution issue was appealed to this Court separately from claims at issue here. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

court summarily dismissed all but the second contention in a December 16, 2014, order 

without requiring the State to respond to Mr. Painter’s petition. 

The court ordered the State to file an answer to the petition on the second 

contention presented therein. After receiving the State’s answer, the court dismissed the 

second contention in a May 8, 2015, order without having previously held an evidentiary 

hearing. 

II. Discussion 

Mr. Painter now appeals the denial of his habeas corpus petition to this Court. In 

his two assignments of error, he argues that the habeas court committed reversible error 

by summarily denying all but his second contention in its December 16, 2014, order, and 

that the habeas court committed reversible error by denying his second contention in its 

May 8, 2015, order. We therefore have before us on appeal two orders from the habeas 

court. Our standard of review in cases involving the denial of a habeas corpus petition is 

as follows: 

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 de novo review. 

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

A. The December 16, 2014, Order 

Many of the contentions summarily dismissed in the December 16, 2014, order 

contained an ineffective assistance of trial and/or counsel allegation. In State v. Miller, 

194 W. Va. 3, 459 S.E.2d 114 (1995), we held: 

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, id. The habeas court, in summarily dismissing some of Mr. Painter’s 

ineffective assistance of counsel claims, attributed Mr. Painter’s trial counsel and 

appellate counsel’s conduct to “strategy.” In so doing, the habeas court determined that 

Mr. Painter’s trial and appellate counsel’s performance did not satisfy the first prong of 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the Strickland test. The habeas court dismissed these allegations without having 

received a response from the State. 

We find that an attorney’s strategy is rarely obvious from the trial or appellate 

record. To establish counsel’s strategy in a habeas corpus proceeding, an evidentiary 

hearing is usually necessary to provide counsel with “the opportunity to explain the 

motive and reason behind his or her trial behavior.” Miller, 194 W. Va. 3, 15, 459 S.E.2d 

114, 126. In most circumstances, when no evidentiary hearing has been held, conclusions 

drawn regarding strategy are nothing more than mere speculation. But see Tex S. v. 

Pszczolkowski, 236 W. Va. 245, 778 S.E.2d 694 (2015) (permitting dismissal without an 

evidentiary hearing where counsel was deceased). 

In this appeal, we find that the record before us is silent as to Mr. Painter’s trial or 

appellate counsel’s strategy. With no factual support for its conclusions regarding 

strategy, the habeas court committed reversible error by making decisions based on 

speculation. We therefore reverse the December 16, 2014, order and remand this case for 

the court to conduct an evidentiary hearing to examine Mr. Painter’s ineffective 

assistance of counsel claims. See W. Va. Code § 53-4A-7(a) (providing for an evidentiary 

hearing in which the court can “take evidence on the contention or contentions and 

grounds (in fact or law) advanced”). We also direct the habeas court on remand to order 

the State to file an answer to Mr. Painter’s petition for writ of habeas corpus in 

accordance with Rule 4(d) of the Rules Governing Post-Conviction Habeas Corpus 

Proceedings in West Virginia. 

B. The May 8, 2015, Order 

On one of Mr. Painter’s contentions, however, the State did file an answer. This 

contention was considered in the habeas court’s ruling of May 8, 2015, and involved Mr. 

Painter’s claim that his trial and appellate counsel were ineffective by failing to 

investigate, raise, and assert that the seizure of a bags found in his home was 

unconstitutional.3 The circuit court, in dismissing this claim without holding an 

evidentiary hearing, determined that because Mr. Painter did not establish that the seizure 

of the bags was unconstitutional, he could not establish that his trial and appellate counsel 

were ineffective. 

As we established supra, ineffective assistance of counsel claims are evaluated 

using the Strickland test. See syl. pt. 5, Miller, 194 W. Va. 3, 459 S.E.2d 114. The second 

prong of the test involves an evaluation of the prejudice caused by counsel’s conduct. In 

3 Mr. Painter alleged that the seizure violated his Fourth Amendment rights. The 

Fourth Amendment to the United States Constitution provides, “The right of the people to 

be secure in their persons, houses, papers, and effects, against unreasonable searches and 

seizures, shall not be violated . . . .” 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

this case, if there is no merit to Mr. Painter’s contention that the seizure of the bags was 

unconstitutional, then Mr. Painter’s ineffective assistance of counsel claims must fail 

inasmuch as he would not be able to satisfy the prejudice prong of the Strickland test. 

We determine that the circuit court correctly concluded that there was no merit to 

Mr. Painter’s contention that the seizure of the bags was unconstitutional. The search 

leading to the seizure of the bags is similar to the search and seizure sanctioned by the 

United States Supreme Court in Fernandez v. California, ___ U.S. ___, 134 S. Ct. 1126 

(2014). In Fernandez, police officers, while investigating an assault, arrived at the home 

of the defendant and his girlfriend, and knocked on the door. Id. at 1130. After the 

girlfriend answered the door, the defendant “stepped forward and said, ‘You don’t have 

any right to come in here. I know my rights.’” Id. (internal quotation marks omitted). 

“Suspecting that [the defendant] had assaulted [his girlfriend], the officers removed him 

from the apartment and then placed him under arrest.” Id. He was taken to the police 

station for booking. Id. About an hour after the defendant was arrested, the police 

returned to the home and asked the girlfriend for permission to enter. Id. The girlfriend 

gave oral and written consent for the police to enter and search. Id. During the search, 

police found evidence that was later used against the defendant, over his objection, 

during his criminal trial. Id. at 1130–31. 

On appeal, the defendant argued that this evidence should have been suppressed 

under Georgia v. Randolph, 547 U.S. 103 (2006). Fernandez, 134 S. Ct. at 1131. In 

Randolph, the U.S. Supreme Court held that where co-occupants of a residence are both 

present and one objects to a search while the other consents, the consent of one occupant 

is insufficient to allow police to conduct a search. Id. at 106. The Fernandez court 

distinguished the case before it from Randolph, stating, “Our opinion in Randolph took 

great pains to emphasize that its holding was limited to situations in which the objecting 

occupant is physically present.” Fernandez, 134 S. Ct. at 1130. The U.S. Supreme Court 

rejected the defendant’s argument that “his objection, made at the threshold of the 

premises that the police wanted to search, remained effective until he changed his mind 

and withdrew his objection.” Id. at 1135. The U.S. Supreme Court refused to extend 

Randolph in Fernandez, holding that “where consent was provided by an abused woman 

well after her male partner had been removed from the apartment they shared,” the search 

and seizure did not violate the Fourth Amendment. Id. at 1130. 

In this case, Mr. Painter denied police access to a home in which he cohabitated 

with Ms. Conner. After he left the home, however, Ms. Conner’s father contacted the 

police on her behalf and requested that they enter into and search the residence. Pursuant 

to Fernandez, Ms. Conner had the authority to consent to the search of her home. 

Therefore, the searches and seizures were constitutional. Because there is no merit to the 

contention that the seizure of the bags was unconstitutional, Mr. Painter has failed to 

establish that his trial and appellate counsel were ineffective with regard to this specific 

issue. 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. Conclusion 

In conclusion, we reverse the habeas court’s December 16, 2014, order. We 

remand for the habeas court to order the State to file an answer to Mr. Painter’s habeas 

corpus petition and for the habeas court to hold an evidentiary hearing to take evidence in 

on Mr. Painter’s ineffective assistance of counsel claims. Because we find no error in the 

habeas court’s decision in its May 8, 2015, order, we affirm that order. 

Affirmed in part, reversed in part, and remanded with directions. 

ISSUED: June 15, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

CONCURRING IN PART AND DISSENTING IN PART: 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

Workman, J., joined by Loughry, J., concurring in part and dissenting in part: 

I concur in the majority’s affirmance of the May 8, 2015, order regarding 

the seizure of the bags found in petitioner’s home. I likewise concur in the majority’s 

reversal and remand for an evidentiary hearing with regard to petitioner’s ineffective 

assistance of counsel claims associated with purportedly inadmissible Rule 404(b) 

evidence and improper prosecutorial remarks. To the extent, however, that the majority 

opinion purports to remand on the entirety of petitioner’s ineffective assistance of counsel 

claims, I respectfully dissent. With respect to all but the Rule 404(b) and prosecutorial 

remarks issues, the lower court properly demonstrated through adequate analysis that 

such claims were lacking in substantial merit and therefore properly summarily 

dismissed. With respect to the alleged 404(b) evidentiary errors and prosecutorial 

remarks, I write separately to more fully articulate the error in the habeas court’s 

handling of these claims and to highlight the majority’s failure to fully grasp the limited 

issue presented, resulting in a remand which is overbroad. 

First, to clarify the narrowness of the issue before the Court, petitioner 

assigned as error 1) the habeas court’s substantive ruling on his “fruit of the poisonous 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

tree” contention; and 2) the habeas court’s refusal to grant petitioner an evidentiary 

hearing and require a response from the State, on the remainder of his habeas contentions. 

The latter assignment of error, then, raises only the propriety of the habeas court’s 

summary dismissal of his habeas petition.4 In viewing the propriety of summary dismissal 

of the habeas petitions, we have long held that “[a] court having jurisdiction over habeas 

corpus proceedings may deny a petition for a writ of habeas corpus without a hearing . . . 

if the petition, exhibits, affidavits or other documentary evidence filed therewith show to 

such court's satisfaction that the petitioner is entitled to no relief.” Syl. Pt. 1, Perdue v. 

Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973). I agree wholeheartedly that where a 

habeas court is able to view the record and demonstrate that a claim lacks substantial 

merit, it may properly summarily dismiss. 

With regard to all but the 404(b) and prosecutorial errors, the habeas court 

below engaged in analysis of the alleged legal errors giving rise to the ineffective 

assistance of counsel claims concluding that no error occurred; therefore, no ineffective 

assistance was rendered.5 In this regard, the habeas court demonstrated that such claims 

lacked substantial merit and were therefore appropriate for summary dismissal. The 

majority fails entirely to acknowledge and address this analysis, broadly remanding for 

what would appear to be any claim couched in ineffective assistance of counsel, 

regardless of whether the habeas court has already properly determined that no error 

occurred. The majority fails to individually examine these habeas contentions to 

ascertain the sole issue presented—whether the habeas court demonstrated that the claim 

was sufficiently lacking in merit as to render it susceptible to summary dismissal without 

a hearing. 

In contrast however, with respect to the 404(b) and prosecutorial remarks, 

the habeas court did not address in any legally sufficient manner whether or not any error 

occurred in the first instance. Nowhere is there a discussion of Rule 404(b), the 

exceptions thereto, etc. Rather, the habeas court, unlike its handling of the other 

contentions, resorted to pure speculation to attempt to demonstrate merely that counsel 

was not ineffective with respect to this evidence. The habeas court repeatedly referenced 

4 Indeed, petitioner does not substantively argue the merits of his underlying habeas contentions, 

rather, he properly sets forth only enough discussion to argue that there was probable cause for 

an evidentiary hearing. 

5 Although it is somewhat difficult to discern from the record, it appears some of petitioner’s 

habeas contentions claim both constitutional deprivations warranting habeas relief in and of 

themselves and ineffective assistance of trial and/or appellate counsel claims associated with 

those deprivations. The majority opinion, in remanding only on the “ineffective assistance of 

counsel” claims, fails to speak to whether any habeas claims not based on ineffective assistance 

of counsel were properly summarily dismissed. 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the “strategic” nature of trial counsel’s failure to object and appellate counsel’s failure to 

appeal a litany of what petitioner claims was inadmissible 404(b) evidence. Having taken 

no evidence from either trial or appellate counsel, the habeas court provided no basis 

upon which to conclude that such omissions were due to strategy.6 As such, the habeas 

court’s dismissal of these claims was not based on the “petition, exhibits, affidavits or 

other documentary evidence,” and lacked any rational support.7 This was unquestionably 

an insufficient basis upon which to rest a summary dismissal. Therefore, with respect to 

these claims, reversal and remand is proper and conforms to the contours of the 

assignment of error placed before this Court. 

To whatever extent petitioner seeks to assert that the allegedly improper 

admission of this evidence itself was tantamount to a constitutional deprivation, see n.2, 

supra, he has presented little argument in that regard. Aside from a rote incantation and 

reference to “due process of law and a fair trial,” petitioner makes no attempt to explain 

how these purported trial errors were so egregious and pervasive such as to contaminate 

the entire trial.8 Therefore, it bears reiteration that “[a] habeas corpus proceeding is not a 

substitute for a writ of error in that ordinary trial error not involving constitutional 

violations will not be reviewed.” Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W. Va. 

129, 254 S.E.2d 805 (1979). Moreover, evidentiary rulings are almost without exception 

deemed ordinary trial error; only in the rarest circumstances when such rulings are so 

egregious as to render the entire trial unfair are they cognizable in habeas. “State court 

evidentiary rulings respecting the admission of evidence are cognizable in habeas corpus 

6 The habeas court’s order includes such statements as: 

“[A]ppellate counsel may not have found such an argument to be convincing or worth the
 

Supreme Court’s time.”
 

“This would not have been a good argument to make on appeal and appellate counsel clearly
 

presented a tailored petition that would give his client the best chance for appeal.”
 

“In this instance, trial counsel strategically chose to make a more effective request [than
 

objecting].”
 

7 The habeas court further made such curiously inaccurate statements in its order as “Such a 

decision is precisely the type of strategy decision that this Court cannot review in a habeas 

proceeding” and “[T]his Court cannot review the strategy decision of counsel in the instant 

habeas proceeding.” The habeas court also appeared to laboring under a misapprehension that if 

trial counsel did not object, appellate counsel could not assert error on appeal. 

8 Simply raising the specter of an “unfair trial” via evidentiary errors is insufficient to elevate 

trial error to one of constitutional dimension. There is scarcely a defendant who would not 

suggest that any trial error of any degree did not result in “unfairness.” It is incumbent upon the 

courts to distinguish this contention from a constitutional deprivation worthy of habeas 

consideration. 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

only to the extent they violate specific constitutional provisions or are so egregious as to 

render the entire trial fundamentally unfair and thereby violate due process under the 

Fourteenth Amendment.” Hatcher v. McBride, 221 W. Va. 5, 11, 650 S.E.2d 104, 110 

(2006) (citing Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L.Ed.2d 385 (1991)). 

Moreover, “[a]bsent ‘circumstances impugning fundamental fairness or infringing 

specific constitutional protections,’ admissibility of evidence does not present a state or 

federal constitutional question.” Id. (quoting Grundler v. North Carolina, 283 F.2d 798, 

802 (4th Cir.1960)); see also Hilling v. Nohe, 2013 WL 3185089, *5 (W. Va. June 24, 

2013) (memorandum decision) (“Pre-trial and evidentiary rulings fall within the gambit 

of ordinary trial error.”). 

However, to the extent that petitioner’s claims of evidentiary error are 

intended to simply form the foundation of an ineffective assistance of counsel claim, as 

indicated above, the habeas court engaged in no legal analysis of whether such evidence 

was even error as it did with the other claims. More importantly, it took no testimony 

regarding trial or appellate counsel’s handling of the purported trial errors, speculating 

wildly about why counsel did or did not object or appeal. Much as this Court has 

repeatedly noted that ineffective assistance of counsel claims are not reviewable upon 

direct appeal, it would be the rare circumstance when the habeas court could make such 

conclusions based upon the bare trial record. See State v. Miller, 194 W. Va. 3, 14-15, 

459 S.E.2d 114, 125-26 (1995) (“In cases involving ineffective assistance on direct 

appeals, intelligent review is rendered impossible because the most significant witness, 

the trial attorney, has not been given the opportunity to explain the motive and reason 

behind his or her trial behavior.”). 

Therefore, I concur in the majority’s reversal and remand for a hearing on 

the ineffective assistance of counsel claims based upon the admission of allegedly 

improper 404(b) evidence and prosecutorial remarks. Reversal and remand in this 

instance is proper because, within the confines of the issue on appeal, the habeas court 

failed to demonstrate that such claims were lacking in merit and therefore proper for 

summary dismissal. However, with respect to the remaining habeas claims to which 

ineffective assistance of counsel was attached, the habeas court properly demonstrated in 

its order that such claims lacked merit and were susceptible to summary dismissal. 

Accordingly, I respectfully concur in part and dissent in part. 

10