THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Glenn E. Vanover, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2016-001917 

Appeal From Lexington County 

Perry H. Gravely, Circuit Court Judge 

Opinion No. 5799 

Submitted March 2, 2020 – Filed February 3, 2021 

AFFIRMED 

Jonathan McKey Milling, of Milling Law Firm, LLC, of 

Columbia, for Petitioner. 

Attorney General Alan McCrory Wilson, Senior 

Assistant Deputy Attorney General Melody Jane Brown, 

and Deputy Attorney General Donald J. Zelenka, all of 

Columbia, for Respondent. 

HEWITT, J.: Glenn Edwin Vanover (Petitioner) appeals the circuit court order 

denying his application for Post-Conviction Relief (PCR). A jury convicted him in 

2012 of two counts of first degree criminal sexual conduct with a minor under 

section 16-3-655(A)(1) of the South Carolina Code (2015). He received concurrent 

twenty-six-year sentences. This court affirmed the convictions and sentence on 

appeal. 
 

Petitioner argues his trial counsel was ineffective in failing to investigate and present 

evidence that the alleged victim—Petitioner's daughter—previously made and 

recanted an allegation of inappropriate conduct against a middle school teacher. We 

agree with the PCR court that Petitioner did not establish this evidence would have 

been admitted or that he was prejudiced. Thus, we affirm. 

BACKGROUND 

This is a "delayed reporting" case. Daughter was sixteen years old at the time of 

trial and testified the sexual abuse occurred when she was younger. She alleged this 

began sometime between her second and fourth grade years and stopped when she 

was in fifth grade, around the age of ten or eleven. 

Trial Testimony 

Daughter described how the alleged abuse began and progressed. She said the first 

instance happened when she was at home with Petitioner and her older brother. 

Daughter claimed Petitioner invited her to watch TV in his bedroom and groped her 

while they were both clothed. She said Petitioner told her not to tell anyone. 

Daughter explained the next instance of abuse involved sexual intercourse after 

Petitioner again asked Daughter to come into his bedroom. She testified she was 

certain they had intercourse because it was painful. 

Daughter said she did not call out for help because she was afraid. She said 

Petitioner told her not to tell anyone about the interaction and warned her that she 

would be in a lot of trouble. Daughter claimed Petitioner abused her again on other 

occasions and that this always occurred while Melanie Vanover (Mother) was at 

work. 

Around the time Daughter was in the fifth grade, the family moved into a house on 

property owned by Petitioner's mother (Grandmother). Daughter claimed Petitioner 

abused her once in this residence when she was about ten years old. As noted above, 

Daughter said the abuse stopped when she was ten or eleven. 

Several witnesses acknowledged Daughter first told Mother about the alleged abuse 

roughly two years later. There is conflicting testimony about whether Daughter 

recanted these first allegations. We will discuss that shortly. 

Two years after that first disclosure—and roughly four years after the alleged abuse 

stopped—Daughter disclosed the abuse to a teacher, Michael Horne. Criminal 

charges followed shortly thereafter. 
Petitioner's defense relied on potential inconsistencies in Daughter's memory about 

the abuse's frequency. Daughter initially said the abuse happened about three times 

per month but later said it did not happen every month and instead occurred "very 

occasionally." Daughter ultimately said Petitioner abused her about three times a 

year, not three times a month. 

Petitioner and other family members also claimed Daughter manufactured the 

allegations as revenge. Mother testified Daughter's first disclosure occurred on her 

brother's sixteenth birthday and appeared to be retaliation for Petitioner refusing to 

let Daughter take a car ride with her brother and his friends. Mother said Daughter 

"showed no emotion whatsoever" when discussing the abuse, gave differing 

accounts of the abuse over time, and eventually admitted she was lying. 

Grandmother agreed with Mother's account, as did Petitioner. Petitioner and Mother 

hypothesized Daughter's disclosure to her teacher two years later resulted from 

Petitioner punishing Daughter for poor grades and skipping school. 

Daughter disputed that her first disclosure occurred on her brother's birthday and 

adamantly denied recanting the allegations. Daughter said her family confronted her 

about the allegations and shunned her when she refused to recant. 

Several witnesses testified about the disclosures that led to criminal charges. 

Horne—Daughter's teacher—said Daughter cried. The school resource officer, 

Deputy Jonathan Grooms, testified Daughter told him that the abuse occurred when 

she was between the ages of eight and ten and that the incidents happened in her 

home. Grooms recalled that Daughter had a blank look on her face, did not want to 

talk to him, and that he had to pull the information out of her. 

Investigator Marty Longshore interviewed Daughter as well. He explained Daughter 

told him the abuse occurred over a period of time when she was between the ages of 

eight and eleven. He said Daughter was reserved, shy, and reluctant to write a 

statement, but Daughter eventually spoke to him about what happened and provided 

a statement. He remembered Daughter cried and was upset, reserved, and shook 

while writing the statement. 

An assessment worker with the Department of Social Services interviewed Daughter 

as well. This person visited Petitioner's residence to investigate the allegations and 

said that when she told Petitioner the reason for her visit, Petitioner announced that 

nobody had ever accused him of sexually abusing Daughter and that "he and his wife 

had a wonderful sex life, so why would he need to go elsewhere." 

PCR 
 

 

The alleged ground for PCR relates to evidence that Daughter previously accused a 

middle school teacher of some sort of inappropriate interaction. This appears to have 

occurred in the same general time period when Daughter first told Mother about the 

alleged sexual abuse at issue here. 

The precise allegation is unclear. One of Daughter's seventh grade teachers—we 

will call him John Doe—explained at the PCR hearing that he received a phone call 

from Petitioner and Mother the day after he gave Daughter detention for talking with 

another student during class. According to Doe, Mother said Daughter accused Doe 

of asking Daughter and one of her friends about the color of their underwear, when 

they had their periods, and whether they had boyfriends. 

Daughter was not on the phone call and Doe never spoke to Daughter about the 

allegation. Doe explained that he informed school administration and that he 

understood the allegation to have been recanted the next day. Doe also said the 

school took no action against him and Daughter was removed from his classroom. 

Neither Mother nor Daughter testified at the PCR hearing. As noted above, Doe 

spoke only with Mother and with school administration about this incident. 

Trial counsel gave a different account of this incident at the PCR hearing. Counsel 

explained he had been aware Daughter previously made some sort of complaint 

against a former teacher and said he understood the incident to have been minor. 

Counsel said Petitioner and other members of the family did not provide "a lot of 

substance" when counsel discussed it with them. Counsel said he learned of the 

incident from a letter Mother wrote. Mother's letter said Daughter "almost had a 

teacher fired because she [Daughter] said he [Doe] said, 'what color is your 

underwear.' But he [Doe] said, 'no one wants to see that, pull your pants up.'" 

Trial counsel said there were several reasons he did not speak with Doe about this 

incident. He said that he took Mother's letter at face value and that neither the letter 

nor his conversations with Petitioner and Petitioner's family suggested the incident 

was noteworthy or relevant. Counsel explained that he could see himself telling a 

teenage girl to pull her pants up and that nobody wanted to see her underwear. 

Counsel also said nobody ever asked him to locate Doe, contact Doe, or call Doe as 

a witness. 

Petitioner disputed trial counsel's recollection. He testified he told trial counsel 

about Doe, assumed counsel would speak to Doe as part of his investigation, and 

always assumed counsel would call Doe as a witness. Petitioner believed the 

incident with Doe was evidence Daughter "had a propensity" to make up "stories." 
The PCR court denied relief. The court did not specifically rule on whether trial 

counsel was deficient. The court grounded its denial of relief on the finding that 

Petitioner failed to establish Doe's testimony would have been admissible or that 

trial counsel's failure to introduce Doe's testimony prejudiced Petitioner. 

ISSUE ON APPEAL 

Whether the PCR court erred in concluding Petitioner did not establish that Doe's 

testimony about the alleged false allegation would be admissible. 

STANDARD OF REVIEW 

"Our standard of review in PCR cases depends on the specific issue before us. We 

defer to a PCR court's findings of fact and will uphold them if there is evidence in 

the record to support them." Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 

(2018); see also Strickland v. Washington, 466 U.S. 668, 698 (1984) (noting "both 

the performance and prejudice components of the ineffectiveness inquiry are mixed 

questions of law and fact"). "We review questions of law de novo, with no deference 

to [the PCR court]." Smalls, 422 S.C. at 180–81, 810 S.E.2d at 839. 

LAW/ANALYSIS 

Petitioner's argument has two components. First, Petitioner claims trial counsel was 

deficient for not speaking with Doe. Second, Petitioner claims counsel was deficient 

for failing to present evidence of Daughter's false allegation against Doe. 

As noted above, the PCR court did not rule on whether trial counsel was deficient 

for not speaking with Doe, but instead grounded its denial of relief on the finding 

that Petitioner failed to establish Doe's testimony would have been admissible and 

failed to establish prejudice. 

We will follow the same course. Strickland explains a court is not required to 

address all aspects of a claim that trial counsel was ineffective if the absence of proof 

on any part precludes relief. 466 U.S. at 697. We therefore turn to Petitioner's 

argument that trial counsel was deficient for failing to present evidence Daughter 

leveled a false allegation against Doe. 

The rules of evidence recognize several avenues for impeaching a witness. Common 

methods are prior bad acts showing motive or absence of mistake, evidence of the 

witness's general character for truthfulness, and certain prior convictions. See Rules 

404(b), 608(a), and 609, SCRE. This is not a complete list. The point is that with 
 

one exception we mention later in this opinion, the rules of evidence govern how a 

party attacks a witness's credibility. 

Petitioner argues testimony about Daughter's allegations against Doe would be 

admissible under three rules: Rules 608, 404(b), and 613, SCRE. As we explain 

below, we respectfully disagree. 

Testimony Regarding Character for Truthfulness 

Rule 608 allows evidence in the form of an opinion regarding a witness's character 

for truthfulness or untruthfulness. It also permits asking a witness about specific 

instances of that witness's conduct if the conduct is probative of the witness's 

truthfulness or untruthfulness. Id. 

We respectfully disagree with Petitioner's claim that this rule would permit him to 

present his own testimony, Mother's testimony, or Doe's testimony about Daughter's 

allegations against Doe. Rule 608(b) explicitly bars extrinsic evidence related to 

specific instances of a witness's conduct. See also Mizell v. Glover, 351 S.C. 392, 

401, 570 S.E.2d 176, 180 (2002) ("Rule 608(b) allows specific instances of conduct 

to be inquired into on cross, but does not allow those instances of conduct to be 

proved by extrinsic evidence."). Thus, although there is no question trial counsel 

could have asked Daughter about the Doe allegation, Rule 608 would not be a 

vehicle for anyone else to offer testimony regarding the allegation. 

Prior Bad Act Testimony 

Rule 404(b) allows evidence of a witness's prior bad acts if offered "to show motive, 

identity, the existence of a common scheme or plan, the absence of mistake or 

accident, or intent." The prior bad act must be proved by clear and convincing 

evidence if it did not result in a conviction. State v. Clasby, 385 S.C. 148, 155, 682 

S.E.2d 892, 895 (2009). Evidence of prior bad acts also remains subject to Rule 403, 

SCRE's probative versus prejudicial balancing test. Id. at 155–56, 682 S.E.2d at 

896. 

There are two reasons we believe it is doubtful the trial court would have allowed 

testimony from Petitioner, Mother, or Doe under Rule 404(b). 

First, the testimony about the Doe allegation was varying and inconsistent. Trial 

counsel testified Mother's letter did not describe the allegation as having any sexual 

connection and that neither Petitioner nor his family ever asked counsel to contact 

Doe. Doe said he had been accused of making an inappropriate comment to 

Daughter and her friend, but his version was inadmissible hearsay because he spoke 
only with Mother, not Daughter. Petitioner's testimony went further and was 

different than everyone else's. Petitioner claimed Daughter accused Doe of making 

an inappropriate comment and of smacking Daughter and her friend on the behind. 

There was no first-hand account of Daughter's accusation against Doe. Neither 

Daughter nor Mother testified at the PCR hearing. 

This matters because the trial court has discretion to exclude evidence if admitting 

the evidence would lead to a "trial within a trial" that might confuse the issues and 

mislead the jury. State v. Cottrell, 421 S.C. 622, 641, 809 S.E.2d 423, 434 (2017). 

The variance in witness testimony and the lack of a first-hand account make it far 

from clear the testimony would be admitted. 

Second, the Doe allegation's probative value is questionable. There do not appear 

to be many South Carolina cases involving prior false allegations made by a victim 

in a criminal sexual conduct case. Our supreme court articulated the standards for 

admitting such evidence in State v. Boiter, 302 S.C. 381, 383–84, 396 S.E.2d 364, 

365 (1990). Boiter explains a trial court should determine whether the prior 

allegation is indeed false before considering "remoteness in time" and "factual 

similarity between [the] prior and present allegations to determine relevancy." Id. 

This framework appears to follow the same general approach that applies in other 

jurisdictions, and there have been lots of similar cases in other jurisdictions. 

Speaking generally, prior false allegations are allowed if the allegations "suggest a 

pattern" that casts "substantial doubt" on the charges at issue. People v. Diaz, 988 

N.E.2d 473, 477 (N.Y. 2013) (quoting People v. Mandel, 401 N.E.2d 185, 187 (N.Y. 

1979)). One formulation of the rule is that "if the prior accusations are similar 

enough to the present ones and shown to be false, a motive can be inferred and from 

it a plausible doubt or disbelief as to the witness' present testimony." White v. 

Coplan, 399 F.3d 18, 26 (1st Cir. 2005). 

The rationale for excluding prior false accusations that do not have a significant 

degree of similarity to the charge at issue is that those false claims lack any 

meaningful probative value. As one noted jurist explained, "[t]he fact that a teenage 

girl has a disordered past and lies a lot (who doesn't?) does not predict that she will 

make up stories about having sex." Redmond v. Kingston, 240 F.3d 590, 591 (7th 

Cir. 2001) (Posner, J.). In other words, evidence that a witness has lied in the past 

has questionable value "since very few people, other than the occasional saint, go 

through life without ever lying." Id. at 593. 

Our review of these decisions leads us to believe that it is doubtful the trial court 

would have admitted evidence of Daughter's allegations against Doe. 
 

At one end of the spectrum are cases in which the purported victim's prior false 

allegations were strikingly similar to the allegations being tried. State v. Cox, for 

example, was a rape trial. 468 A.2d 319 (Md. 1983). The victim had previously 

accused another person of sexual misconduct before recanting the allegation at trial. 

Id. at 320–21. Another similar case is White v. Coplan, in which the prior false 

allegations "bore a close resemblance" to the charges at issue. 399 F.3d at 24. A 

third example is State v. Dennis, which is of the same character as the others. 893 

A.2d 250, 266–67 (R.I. 2006). 

At the other end of the spectrum are lies that have no similarity whatsoever to the 

accusations on trial. For example, the fact that the alleged victim previously took 

her mother's car without permission, wrecked the car, and lied about the 

circumstances before recanting had no probative value with respect to the victim's 

allegation that she was raped. State v. Wilson, 256 S.W.3d 58, 60–62 (Mo. 2008), 

abrogated on other grounds by Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. 2010). 

Less-extreme examples—all of them in sex crime cases—include cases where the 

alleged victim previously accused someone of physical abuse, excessive discipline, 

and peering at the victim under a bathroom stall. See Lopez v. State, 18 S.W.3d 220, 

225–26 (Tex. Crim. App. 2000); State v. Botelho, 753 A.2d 343, 346–47 (R.I. 2000); 

State v. Ellsworth, 709 A.2d 768, 772–74 (N.H. 1998). We also note State v. Brum, 

a case affirming a trial court's decision to exclude evidence of a prior false allegation 

even though that allegation and the conduct for which the defendant was on trial 

plainly had a sexual nature. 923 A.2d 1068, 1074–75 (N.H. 2007). 

In light of these cases (and others), we find there is no reasonable probability a trial 

court would have found Daughter's allegations against Doe to be probative evidence 

of motive, a common scheme or plan, or any other ground recognized by Rule 

404(b). Even adopting Petitioner's version of the Doe allegation—that Doe made an 

inappropriate comment before smacking Daughter and her friend on their behinds— 

the allegation bears no similarity to Daughter's allegation that Petitioner fondled her 

and sexually abused her several times, over several years. 

Petitioner argues the allegations against him are sufficiently similar to the Doe 

allegations because both are evidence that Daughter manufactures accusations to 

avoid punishment and improve her circumstances. Respectfully, this 

characterization of these incidents is too broad and generic. The events are vastly 

more different than they are similar. We again note Boiter, which held "factual 

similarity" was relevant when a trial court is deciding whether to admit evidence of 

a victim's prior false allegation. 302 S.C. at 383–84, 396 S.E.2d at 365. 
It is worth mentioning that any restrictions imposed by the rules of evidence must 

yield if they conflict with the defendant's right to effective cross-examination; a right 

that is guaranteed by both the State and Federal Constitution. See Davis v. Alaska, 

415 U.S. 308, 316–17 (1974) ("We have recognized that the exposure of a witness' 

motivation in testifying is a proper and important function of the constitutionally 

protected right of cross-examination."); State v. Cooper, 291 S.C. 351, 355, 353 

S.E.2d 451, 454 (1987). Some of the cases we cite in our analysis of Rule 404(b) 

did not turn on that rule, but on whether preventing evidence of the prior false 

accusation violated the defendant's constitutional rights. See, e.g., Botelho, 753 A.2d 

at 345–47; Lopez, 18 S.W.3d at 223. We cite these cases because their discussion 

of "similarity" between prior false allegations and the charges being tried seem 

particularly germane to the purposes Rule 404(b) identifies for potential evidence. 

Prior Inconsistent Statement 

Rule 613 explains how to cross-examine a witness who has previously given a 

statement that contradicts the witness's in-court testimony. Here, the argument 

seems to be that Petitioner could have asked Daughter about her allegations against 

Doe and called other witnesses if Daughter denied making the accusation. 

Although a witness may generally be cross-examined on anything, even a collateral 

matter, as credibility is always an issue, extrinsic evidence of a prior inconsistent 

statement is not admissible if the prior statement concerns a collateral matter. See 

28 Charles Alan Wright & Victor J. Gold, Federal Practice & Procedure Evidence 

§ 6206 (2d ed. 2012). Thus, and as is true under Rule 608, Petitioner could have 

asked Daughter about the Doe allegation but would be stuck with her answer. 

A skeptical reader might respond by claiming that Daughter's credibility was not a 

collateral matter, but was the very heart of the case. That is true of any case relying 

chiefly on witness testimony. We understand and expressly do not overlook the 

attraction of allowing testimony that an accuser in this sort of case has made a 

previous allegation of improper conduct and then recanted that allegation. Even so, 

this case was not about Daughter's purported allegation against Doe, and as we have 

already discussed, the nature of that claim—a false report of an inappropriate 

comment that was immediately recanted—is worlds apart from Daughter's claim that 

Petitioner repeatedly sexually abused her over a prolonged period of time. See also 

State v. Finley, 300 S.C. 196, 201, 387 S.E.2d 88, 90 (1989) ("[T]he state's interest 

in protecting criminal sexual conduct victims is stronger than the right of a defendant 

to attack such a victim's character in a manner that has limited or no relevance to the 

question of guilt."). 
 

 

 

Failure to Cross-Examine Daughter with Doe Allegation 

Petitioner argues that at a minimum, trial counsel was deficient for failing to ask 

Daughter about the Doe allegation. 

We have no idea what Daughter's answer or explanation for the Doe allegation 

would have been. Daughter did not testify at the PCR hearing. We do not see how 

we could find this alleged deficiency to be prejudicial without some sense of what 

Daughter's explanation would have been. See, e.g., Glover v. State, 318 S.C. 496, 

498, 458 S.E.2d 538, 540 (1995) (finding the absence of PCR testimony from alleged 

alibi witnesses meant petitioner "could not establish any prejudice from counsel's 

failure to contact these witnesses"). 

We also note Daughter testified at trial that she was removed from her family's home 

as a result of her allegations against Petitioner and that she lived in a series of foster 

homes before being adopted by her uncle (her mother's brother) and his wife. 

Whatever answer Daughter might have given if cross-examined about the Doe 

allegation, we question whether that answer would have blunted the force of 

Daughter's testimony that her allegations against Petitioner did not improve her 

home life, but instead threw that life into turmoil. 

CONCLUSION 

For the foregoing reasons, the PCR court's denial of relief is 

AFFIRMED.1 

GEATHERS, J., concurs. 

LOCKEMY, C.J., dissenting: I respectfully dissent. In my view, trial counsel 

provided ineffective assistance of counsel by failing to investigate and interview Doe 

and for failing to elicit testimony related to Daughter's accusations against Doe. 

Trial counsel had a duty to investigate Daughter's prior accusations and this duty 

was even more acute given trial counsel's theory of the case—that Daughter 

manufactured the accusation to avoid punishment. Trial counsel's reason for failing 

to investigate the accusation was that he "could see [him]self telling some young girl 

'to pull your pants up.' Nobody wants to see [the] color [of] your underwear." 

However, whether trial counsel could see himself saying this to a student was not a 

1

 We decide this case without oral argument per Rule 215, SCACR. 
sufficient reason for his failure to see the relevance of Daughter's potential false 

accusation against Doe. 

Although there was a difference between what Petitioner and Mother told trial 

counsel regarding Daughter's accusations, in either scenario, trial counsel was 

informed that Daughter made a false accusation against Doe to avoid punishment 

and this was the same premise upon which Petitioner's defense rested. In my view 

that was enough information to require that trial counsel at a very minimum talk to 

Doe. Had trial counsel done so, he would have understood that the conduct was 

much more sexually improper than he testified he understood it to be at the PCR 

hearing. Thus, trial counsel provided ineffective assistance of counsel by failing to 

investigate. 

In my view Petitioner was prejudiced because trial counsel could have presented 

evidence of Daughter's accusation against Doe. Specifically, trial counsel could 

have asked Daughter whether she had accused Doe of asking her inappropriate 

sexual questions. If she admitted to having accused Doe of asking inappropriate 

questions, then the jury would have heard her admission, and trial counsel would 

have been able to cross-examine Daughter further under Boiter. See 302 S.C. at 

383–84, 396 S.E.2d at 365. I respectfully disagree with the majority's analysis of 

the Boiter factors. We must examine "the factual similarity between [the] prior and 

present allegations to determine relevancy." Id. A key factor in this case is 

Petitioner's stance that Daughter made accusations against others to avoid 

punishment. The majority believes that Daughter's allegations against Doe were 

much less egregious than those she made against Petitioner. No doubt that is so. 

However, they were still allegations of inappropriate conduct of a sexual nature that 

Daughter claimed were directed at her. Petitioner's entire defense rested on the 

foundation that Daughter had made up the allegations against him to avoid 

punishment and that she had recanted her allegations about the conduct. Similarly, 

Doe's statement indicated that he was about to punish her for conduct and then she 

accused him of inappropriate conduct of a sexual nature, which she later recanted. 

The trial court never had an opportunity to rule upon whether Doe's statement was 

true or false, and the PCR court never made a finding that Doe's testimony was 

untrue. Further, the accusations that Doe referenced were not so remote in time 

compared to those against Petitioner because the two accusations were between one 

and three years apart. Using the factors set out in Boiter, the accusations against 

Doe would have been admissible. 

On the other hand, if Daughter had denied accusing Doe, trial counsel could have 

offered evidence regarding the accusation against him. See Clinebell v. 
Commonwealth, 368 S.E.2d 263, 266 (Va. 1988) ("Consequently, in a sex crime 

case, the complaining witness may be cross-examined about prior false accusations, 

and if the witness denies making the statement, the defense may submit proof of 

such charges."). Rule 613, SCRE, states, "If a witness does not admit that he has 

made the prior inconsistent statement, extrinsic evidence of such statement is 

admissible." In my view Daughter's statement regarding a false accusation was not 

a collateral matter. See State v. Williams, 409 S.C. 455, 469, 761 S.E.2d 770, 778 

(Ct. App. 2014) (stating evidence is not collateral if is directly relevant to the 

ultimate issue at trial: a defendant's innocence). 

Further, because there was no physical evidence and Petitioner's guilt came down to 

witness credibility, there is a reasonable probability that but for trial counsel's failure 

to investigate and elicit testimony, the result of Petitioner's trial would have been 

different. See Strickland, 466 U.S. at 694 (1984) ("The defendant must show that 

there is a reasonable probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome."). 

In summary, trial counsel was ineffective for failing to investigate and his failure to 

do so prejudiced Petitioner.