STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Richard Scott Bennett, FILED 

Petitioner Below, Petitioner September 1, 2017 

vs) No. 16-0535 (Monroe County 11-C-26) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

David Ballard, Warden, 

Mount Olive Correctional Complex, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Richard Scott Bennett, by counsel Scott E. Johnson, appeals the May 5, 2016, 

order of the Circuit Court of Monroe County that denied his petition for post-conviction habeas 

corpus relief. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by 

counsel Gordon E. Mowen, II, filed a response in support of the habeas court’s order. Petitioner 

filed a reply. 

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 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 2007, Edwina I.1 (the “victim”) died on the floor of her trailer in Monroe 

County. The cause of death was blunt and sharp force trauma to the victim’s head caused when 

the victim landed face first onto the edge of a metal bedframe. The trauma caused the victim’s 

brain to bleed and swell over a period of about two days until her death. Present at the scene 

were petitioner, who lived with the victim, and the victim’s three children: an eleven-year-old 

daughter (the “older daughter”), a nine-year-old daughter (the “younger daughter”), and a fouryear-old son. 

In 2008, a grand jury indicted petitioner for the murder of the victim. Thereafter, the trial 

court appointed Richard Gunnoe as petitioner’s first trial counsel. A trial date was set for August 

of 2008. However, in July of 2008, Mr. Gunnoe filed a motion to withdraw based on a conflict of 

interest in that he had previously represented Elisha F. who was slated to testify for the State at 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 

W.Va. 641, 398 S.E.2d 123 (1990). 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

petitioner’s trial. Thereafter, the circuit appointed Geoffrey Wilcher and Jeffrey Rodgers to 

represent petitioner. Petitioner’s four-day trial commenced on July 14, 2009. The State called 

more than twenty witnesses during its case-in-chief; petitioner’s counsel cross-examined all but 

three of these witnesses. The State’s witnesses included the following: 

Cassandra Owens, a contract social worker for the Bureau of Child Protective Services 

(“CPS”), testified that she knew the victim because she had worked with her on parenting skills. 

Ms. Owens testified that, four months prior to the victim’s death, the victim had called her from 

a neighbor’s house. During the call, the victim claimed that she was afraid of petitioner because 

he had a plan to kill her. However, when Ms. Owens called the victim the next day, the victim 

claimed she had been hallucinating on diet pills when she said petitioner had a plan to kill her. 

Ms. Owens testified that, during this call, she heard petitioner in the background coaching the 

victim on what to say. 

Onita Meadows testified that she had known petitioner for twelve years and had worked 

with him. Ms. Meadows testified that she stopped by petitioner’s trailer one day where she met 

the victim who had a black eye. Ms. Meadows testified that the victim said the black eye 

occurred when she (the victim) bumped heads with petitioner, but Ms. Meadows believed the 

victim was lying to protect petitioner. 

Elisha F. testified that she met the victim at the victim’s trailer. The victim would not 

look her in the eye. The victim’s throat was purple, the whites of her eyes were “nothing but 

blood,” and she had bruises all over her face and body. On a second trip to the trailer, Elisha F. 

noticed that petitioner, his sister, the sister’s boyfriend, and the victim’s younger daughter were 

“being mean” to the victim. When Elisha F. asked petitioner why they were being mean to the 

victim, petitioner told her that the victim and the children’s biological father had sexually abused 

the victim’s children. Petitioner then had the victim’s children explain in detail what the victim 

and their biological father had done to them. Elisha F. asked petitioner why the victim was still 

around the children if the victim had done such things. Petitioner replied that the victim, whom 

he described as a “fat ass” and a “whore,” “ain’t going to be here long”; that he was going to kill 

the victim for what she had done to her children; and that he intended to take the victim’s body 

and “throw her in one of them caves.” Elisha F. testified that petitioner threatened to kill the 

victim at least ten times during this conversation and appeared very serious when he spoke. 

Elisha F. was so upset by what she heard, she called her own CPS caseworker, Jennifer Ratliff, 

to report petitioner’s threats. 

CPS caseworker Jennifer Ratliff testified that she received a call from Elisha F. 

regarding petitioner’s threats and the children’s claims of abuse. Ms. Ratliff testified that Elisha 

F.’s claims were very vague and that Elisha F. had lied to CPS in the past; therefore, no 

investigation ensured. 

The victim’s younger daughter, who was then eleven years old, testified as follows: At 

petitioner’s trailer, she slept alone with petitioner in the largest bedroom. She witnessed 

petitioner hit and kick the victim all over her body many times; hit the victim with a metal pole; 

put a rope around the victim’s neck and drag her around by the rope with his car; and push the 

victim into a fire. Petitioner hit her and her siblings. She tried to call the police, but petitioner 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

took the phone out of her hands. Petitioner made her hit the victim on several occasions. On the 

night the victim was mortally wounded, she saw petitioner push the victim down the trailer’s 

steps. The victim landed on some bedsprings and cut her head. As a result, the victim was 

bleeding and crying. The victim crawled up the steps and into her bedroom. She went to the 

victim’s room and observed a “big scar” down the victim’s face. The victim said, “Help me.” 

The victim could only crawl and mumble the next day. The victim bled a lot and blood was 

“everywhere.” Petitioner burned everything with blood on it. The morning after the victim died, 

she and her siblings accompanied petitioner to petitioner’s sister’s house. Petitioner told his sister 

he had killed the victim and begged his sister not to call the police. Petitioner left his sister’s 

home and went to buy lime. Petitioner told the sales person that the lime was for plants. 

Petitioner was going to chop up the victim’s body and place it in the sewer, but decided to place 

lime on the victim’s body instead. The day after the victim died, she (the younger daughter) 

talked to “Monica” (a forensic investigator). She told the forensic investigator that the victim 

was with the children’s biological father on the night the victim was injured. 

On cross-examination, Defense Counsel Wilcher, asked the younger daughter, “Do you 

remember telling [the forensic investigator] you missed [petitioner]?” The younger daughter 

replied, “Yes, ‘cause we didn’t know what to do ‘cause we was brainwashed.” The younger 

daughter further testified that “brainwashed” meant, “when someone else, like, confuses your 

mind and get into your mind and changes—twists up different things in your mind to believe 

them.” 

The victim’s older daughter, who was then thirteen years old, testified as follows: When 

she was ten-years-old, she lived with the victim and her biological father. Her parents hired her 

out to men for money. The men would touch her and make her touch them. Her father sexually 

abused her and stuck a carrot “up her little brother’s butt.” When she, her siblings, and the victim 

moved into petitioner’s trailer, her biological father put the victim’s head through a glass 

window and went to jail as a result. In the trailer, petitioner slept in the largest bedroom with her 

younger sister. Petitioner frequently hit and kicked the victim, hit the victim with a hammer, 

dragged the victim around with a rope around her neck, and pushed her into a fire. Petitioner 

forced the victim to put their dog’s “privates into her mouth.” Petitioner hit her (the older 

daughter) because he did not want her to tell any of the things that happened at the trailer. 

Petitioner forced her to hit the victim and to stab the victim with a knife. Petitioner also made her 

younger sister and her little brother hit the victim. 

The older daughter also testified that on the night the victim hit her head, petitioner 

kicked the victim down the trailer steps. The victim fell through the bannister and her head 

landed on a “pointy-edge hooked to the bed frame.” The hook gauged into the victim’s face, 

around her eye area. The victim crawled into the house dripping blood. She and her younger 

sister tried to bandage the wound that was “massively bleeding.” Awhile later, petitioner carried 

the victim to a vacant trailer that was adjacent to his trailer. There, petitioner put his knee on the 

victim’s head and “blood flew everywhere.” Petitioner then painted the floor with red and silver 

spray paint. Petitioner left the victim in the vacant trailer until the next day, when he returned the 

victim to his trailer. At that time, the victim “wasn’t acting right,” “couldn’t talk right,” and 

“couldn’t walk.” The victim was still alive that night, but died in “a day or two.” After the victim 

died, she, petitioner, and her sister cleaned up all the blood and burned everything they could not 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

clean. Petitioner told her he was going to put lime on the victim’s body. Petitioner and the three 

children went to petitioner’s sister’s house where petitioner told his sister and her boyfriend what 

had happened, and asked them not to call the police. Thereafter, petitioner and the children 

purchased lime and returned to the trailer. The police came to the trailer soon thereafter. 

On cross-examination, the older daughter admitted she told the forensic investigator that 

the victim had been with the children’s biological father on the night the victim was injured. She 

also testified that petitioner “brainwashed” her to say that and that the story about her biological 

father was not true. 

Medical examiner and forensic pathologist Nabila Haikal, M.D., testified as follows: The 

victim’s head injury was likely fatal, but the open wounds on the victim’s head could have 

contributed to her death. The victim had a black eye and other face and neck injuries. There were 

brown and yellowing bruises on the victim’s face; injuries to her chest and abdomen; bruising 

and scrapes on her back; bruising on her buttock; seven fractured ribs; defensive wounds on the 

back of her forearms and the palms of her hands; and wounds consistent with stabbing. 

Joanna Scott, petitioner’s sister testified as follows: Petitioner and the victim’s children 

came to her trailer while she and her then-boyfriend, Dale Bragg, were at home. Petitioner was 

shaking and crying and admitted he beat the victim to death. Petitioner asked both she and Mr. 

Bragg to help him move the victim’s body. Petitioner said he intended to take the body behind 

the couple’s trailer and cover it with lime. She made up various excuses as to why she could not 

help petitioner move the body. Petitioner called a hardware store from Ms. Scott’s home to 

inquire about purchasing lime. As soon as petitioner left, she and Mr. Bragg went to a second 

location and called the police. She also testified that she had seen (1) petitioner hit the victim and 

the victim’s daughters; (2) bruises and a black eye on the victim; and (3) petitioner be mean to 

the victim. 

Dale Bragg, petitioner’s sister’s boyfriend, confirmed petitioner’s sister’s testimony. 

Cpl. Scott Keaton testified that, in response to petitioner’s sister’s call to the police, he 

and other officers responded to petitioner’s trailer. When petitioner saw the police cruisers, he 

jumped in his car and drove away. The officers pursued petitioner for about five miles. 

Thereafter, petitioner’s car accelerated, left the road, and struck a tree. The police captured 

petitioner and searched his car where they found bags of lime. 

Bridgett Magnetti, the victim’s daughters’ treating psychologist, testified at length about 

petitioner’s sexual abuse of the younger daughter. Ms. Magnetti also testified that both daughters 

suffered from Post-Traumatic Stress Disorder and Child Sexual-Abuse Accommodation 

Syndrome (“CSAAS”). Ms. Magnetti opined that the CSAAS explained why the daughters 

initially blamed their biological father for the victim’s death and then, later, blamed petitioner. 

Leroy Fowler, who met petitioner in prison in 2008, testified to his conversations with 

petitioner in prison. Mr. Fowler testified that petitioner admitted (1) he did not like the victim 

because she had sexually abused her children; (2) he hit the victim who sustained a head injury 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

during the fight; (3) the victim stayed in her bedroom and died a day or two later; and (4) he 

wanted the victim to die. 

During petitioner’s case-in-chief, trial counsel called an expert, George R. Nichols, M.D., 

a forensic pathologist, who testified that the victim’s injuries could have been caused by an 

accident or by a non-intentional homicide. Dr. Nichols also opined on the differences between 

the various types of homicide. Petitioner’s counsel also called a second witness, Frankie Bolen, 

in an effort to impeach the testimony of State witness Leroy Fowler. Petitioner did not testify. 

On July 17, 2009, the jury found petitioner guilty of murder in the first degree and did not 

recommend mercy. Thereafter, the circuit court sentenced petitioner to life in prison without the 

possibility of parole. The circuit court denied petitioner’s motion for a new trial on November 

10, 2009. This Court refused petitioner’s direct appeal of his conviction on September 22, 2010. 

Petitioner filed a pro se petition for post-conviction habeas relief on May 12, 2011. On 

October 15, 2014, petitioner’s habeas counsel, Lori M. Waller, filed petitioner’s amended 

petition and Losh list. In that list petitioner alleged (1) prejudicial pretrial publicity; (2) coerced 

confessions; (3) ineffective assistance of counsel; (4) improper venue; (5) the use of informers to 

convict; (6) constitutional errors in evidentiary rulings; (7) instructions to the jury; (8) claims of 

prejudicial statements by the prosecutor; (9) sufficiency of the evidence; and (10) petitioner’s 

absence during part of the proceedings. 

The habeas court held petitioner’s omnibus evidentiary hearings on July 17, 2015, and 

December 7, 2015. Testifying at these hearings were petitioner’s initial trial counsel Richard 

Gunnoe; one of petitioner’s two trial counsel, Jeffrey Rodgers; petitioner; and petitioner’s expert 

witness, Mary Lou Newberger, a former chief federal public defender. Petitioner’s second trial 

counsel, Geoffrey Wilcher did not testify as he died prior to the omnibus hearings. By order 

dated May 5, 2016, the circuit court denied relief on the ground that petitioner had received a fair 

trial and competent representation. Petitioner now appeals that order. 

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). 

Petitioner raises four assignments of error on appeal. Petitioner first argues he was denied 

effective assistance of counsel when Mr. Wilcher, one of his two trial counsel, conceded 

petitioner’s guilt in closing argument. Specifically, Mr. Wilcher, said, “[n]ow fell or pushed? I’m 

not going to suggest to you that . . . you should return a verdict of acquittal, that this was just an 

accident, just a big mistake. I’m not going to insult your intelligence in that fashion.” Petitioner 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

maintains that his defense theory was that the victim fell accidentally, that his trial goal was 

acquittal, and that he told counsel not to admit guilt at trial. Petitioner argues that because Mr. 

Wilcher conceded guilt, Mr. Wilcher usurped his right to set the objective, purposes, and goals of 

the representation; and, therefore, that representation fell below a reasonable standard of 

professional competency. Finally, petitioner claims that because trial counsel’s action in 

admitting guilt was essentially a functional denial of counsel at a critical stage of trial, petitioner 

need not show any prejudice pursuant to United States v. Cronic, 466 U.S. 648, 658-59 (1984). 

We review claims of ineffective assistance of counsel, under the following standard: 

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). We have also held that, 

[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. 

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

the cases in which a defendant may prevail on the ground of ineffective assistance 

of counsel are few and far between one another. This result is no accident, but 

instead flows from deliberate policy decisions this Court and the United States 

Supreme Court have made mandating that “[j]udicial scrutiny of counsel’s 

performance must be highly deferential” and prohibiting “[i]ntensive scrutiny of 

counsel and rigid requirements for acceptable assistance[.]” Strickland, 466 U.S. 

at 689–90. . . . In other words, we always should presume strongly that counsel’s 

performance was reasonable and adequate. A defendant seeking to rebut this 

strong presumption of effectiveness bears a difficult burden because 

constitutionally acceptable performance is not defined narrowly and encompasses 

a “wide range.” The test of ineffectiveness has little or nothing to do with what 

the best lawyers would have done. Nor is the test even what most good lawyers 

would have done. We only ask whether a reasonable lawyer would have acted, 

under the circumstances, as defense counsel acted in the case at issue. We are not 

interested in grading lawyers’ performances; we are interested in whether the 

adversarial process at the time, in fact, worked adequately. 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Id. at 16, 459 S.E.2d at 127. 

Petitioner maintains he told counsel he wanted an “all or nothing” defense. Conversely, 

Mr. Rodgers testified at petitioner’s omnibus evidentiary hearing that he and Mr. Wilcher had 

discussed their trial strategy with petitioner before trial. Thus, the habeas court was required to 

weigh the credibility of both witnesses. Given that the habeas court denied relief on this ground, 

we can only presume that the court found Mr. Rogers’ testimony to be more credible than 

petitioner’s testimony on this point. As we have said, “[a]n appellate court may not decide the 

credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of 

fact.” State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995); see also State 

ex rel. Daniel v. Legursky, 195 W.Va. 314, 327, 465 S.E.2d 416, 429 (1995) (“In cases where 

there is a conflict of evidence between defense counsel and the defendant, the circuit court’s 

findings will usually be upheld.”). 

With regard to petitioner’s argument that he is entitled to a presumption of prejudice, the 

Supreme Court has said that prejudice may be presumed in certain very narrow circumstances, 

such as where the deprivation of counsel is obvious and egregious. See Bell v. Cone, 535 U.S. 

685, 695 (2002) (quoting and citing Cronic, 466 U.S. 648, 658-59 (1984)). The Supreme Court 

identified three such circumstances: (1) “complete denial of counsel” at “a critical stage”; (2) 

constructive denial of counsel where “counsel entirely fails to subject the prosecution’s case to 

meaningful adversarial testing”; and (3) instances where “counsel is called upon to render 

assistance under circumstances where competent counsel very likely could not.” Bell, 535 U.S. at 

695-96. “That a case warrants a finding of presumed prejudice under any of these three prongs is 

‘an extremely high showing for a criminal defendant to make.’ Brown v. French, 147 F.3d 307, 

313 (4th Cir. 1998).” United States v. Ragin, 820 F.3d 609, 618 (4th Cir. 2016). 

It is unclear which of these three circumstances petitioner claims. Clearly, petitioner did 

not have a “complete denial of counsel” on closing argument given that Mr. Wilcher made a 

lengthy closing on petitioner’s behalf. Nor does petitioner claim an instance in which “counsel is 

called upon to render assistance under circumstances where competent counsel very likely could 

not.” Thus, we presume petitioner is claiming that he was constructively denied counsel when 

Mr. Wilcher conceded his guilt on closing. “A constructive denial of counsel occurs . . . in only a 

very narrow spectrum of cases where the circumstances leading to counsel’s ineffectiveness are 

so egregious that the defendant was in effect denied any meaningful assistance at all.” Childress 

v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997) (citation omitted) (emphasis added). For 

example, defense counsel was found to be constructively denied where defense counsel slept 

through a substantial portion of the defendant’s trial. See Ragin, 820 F.3d at 612. 

Here, petitioner was not “in effect, denied any meaningful assistance at all.” In fact, the 

record on appeal shows that petitioner’s trial counsel made an opening statement, lodged 

multiple objections, cross-examined all but three of the State’s twenty-plus witnesses, called an 

expert and a rebuttal witness during petitioner’s case-in-chief, and—as noted above—made a 

lengthy closing argument. Petitioner complains only of trial counsel’s strategic decision-making 

with regard to closing. Thus, because petitioner fails to make the requisite “extremely high 

showing” required for a presumption of prejudice, we find the habeas court did not err in 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

applying Strickland’s two-pronged analysis instead of Cronic’s presumed prejudice analysis. See 

generally Childress, 103 F.3d at 1229. 

With regard to Mr. Wilcher’s closing, he made a tactical decision to acknowledge the 

State’s copious evidence against petitioner, but then highlighted that evidence of premeditation 

and malice were lacking. Indeed, as the habeas court found, “Mr. Wilcher zealously advocated 

for his client to the point of suggesting that the jury should strongly consider the lesser included 

crime of voluntary manslaughter.” Accordingly, we concur with the circuit court’s finding that 

petitioner failed to establish that Mr. Wilcher’s performance on closing was objectively deficient 

under the first prong of Strickland. As for the second prong of Strickland, even if we assume that 

Mr. Wilcher’s performance was deficient, and it was not, there was no likelihood of a different 

result given the overwhelming evidence adduced at trial of petitioner’s guilt. 

In petitioner’s second assignment of error, he argues that he was denied effective 

assistance of counsel due to Mr. Rodgers’s conflict of interest regarding State witness Elisha F. 

Petitioner points out that his first trial counsel, Mr. Gunnoe, withdrew because he had previously 

represented Elisha F. Petitioner claims Mr. Rodgers should have likewise withdrawn because he 

too once represented Elisha F., in a child abuse and neglect case. Petitioner maintains that Mr. 

Rodgers’s cross-examination and recross-examination of Elisha F. at trial was neither thorough 

nor probing. Petitioner points out that Mr. Rodgers failed to cross-examine Elisha F. regarding 

her lack of veracity with CPS. Instead, Mr. Rodgers asked Elisha F.’s CPS caseworker, Jennifer 

Ratliff, whether Elisha F. was dishonest. Petitioner highlights that “a defendant who shows that a 

conflict of interest actually affected the adequacy of his representation need not demonstrate 

prejudice in order to obtain relief.” Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980) (citation 

omitted). 

In this regard, 

[t]he Strickland Court recognized that a claim of ineffective assistance of 

counsel arising from counsel’s conflict of interest presents a special case subject 

to the standard articulated by [Sullivan] . . . . To establish ineffective assistance of 

counsel on conflict of interest grounds, a petitioner must establish that (1) his 

attorney labored under “an actual conflict of interest” that (2) “adversely affected 

his lawyer’s performance.” See Sullivan, 446 U.S. at 348. After a petitioner 

satisfies this two-part test, prejudice is presumed. Sullivan, 446 U.S. at 349. . . . 

Mickens v. Taylor, 240 F.3d 348, 355 (4th Cir. 2001), aff’d, 535 U.S. 162 (2002). Here, 

petitioner fails to support his claim that Mr. Rogers had “an actual conflict of interest” with 

regard to Elisha F. given that Mr. Rogers’ representation of Elisha F. ended six months before 

the trial court appointed Mr. Rogers to represent petitioner. “‘[U]ntil’. . . ‘a defendant shows that 

his counsel actively represented conflicting interests, he has not established the constitutional 

predicate for his claim of ineffective assistance.’” Mickens, 535 U.S. at 175 (citing Sullivan, 446 

U.S. at 350). Accordingly, petitioner fails to establish the first prong of Sullivan: that Mr. Rogers 

labored under “an actual conflict of interest.” 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Petitioner also fails to support his claim that Mr. Rogers’s performance was adversely 

affected by his past representation of Elisha F. At trial, Mr. Rodgers engaged in a lengthy crossexamination and recross-examination of Elisha F. during which he tested her memory and the 

quality of her testimony. Mr. Rogers also called Elisha F.’s credibility into question through the 

testimony of CPS social worker Jennifer Ratliff who testified to Elisha F.’s lack of veracity. 

Given that Elisha F. may have denied lying to CPS, Mr. Rogers’ decision to question Ms. Ratliff 

about Elisha F.’s credibility was not unreasonable. We have said, “[t]he method and scope of 

cross-examination ‘is a paradigm of the type of tactical decision that [ordinarily] cannot be 

challenged as evidence of ineffective assistance of counsel.’” Coleman v. Painter, 215 W. Va. 

592, 596, 600 S.E.2d 304, 308 (2004)) (quoting Legursky, 195 W.Va. at, 328, 465 S.E.2d at 430 

(citations omitted)). 

Thus, because petitioner fails to satisfy both parts of the Sullivan test, he must show 

prejudice to obtain relief. In that regard, we concur with the habeas court’s finding that, even if 

another attorney had cross-examined Elisha F., the outcome at trial would not have changed 

given the overwhelming evidence of petitioner’s guilt. Thus, we find no error. 

In petitioner’s third assignment of error, he argues that he was denied effective assistance 

of counsel because his trial counsel failed, in four different ways, to conduct an adequate pretrial 

investigation. Petitioner first argues that he was prejudiced by counsel’s failure to adequately 

consult with him prior to trial. 

At petitioner’s December 7, 2015, omnibus evidentiary hearing, his first appointed 

counsel, Richard Gunnoe, testified that, as part of his investigation of petitioner’s case, he hired a 

private investigator, visited the crime scene and took photographs, and interviewed a potential 

witness. Mr. Gunnoe also stated that he had several meetings with petitioner during which he 

reviewed most, if not all, of his discovery with petitioner. In total, Mr. Gunnoe spent 11.8 hours 

investigating petitioner’s case and meeting with him, before he withdrew as counsel. 

Importantly, Mr. Gunnoe testified that he provided all of the information he had gathered on 

petitioner’s case to Mr. Wilcher. 

The record on appeal also shows that Mr. Wilcher spent 16.2 hours conducting his own 

investigation of petitioner’s case during which he twice discussed the case with Mr. Gunnoe. Mr. 

Wilcher also obtained the victim’s medical records, reviewed the physical evidence in the 

custody of the police, interviewed counseling staff who had worked with the victim’s daughters, 

reviewed a potential expert witness, interviewed the investigating officer, and conferenced a 

lawyer who worked in the victim’s underlying child and abuse case. 

In addition, the record on appeal shows that Mr. Rogers, Mr. Wilcher’s co-counsel, 

conducted his own 4.7 hour-long investigation into petitioner’s case. That investigation included 

locating an expert witness and corresponding with a forensic pathologist. Mr. Rogers also met 

with petitioner for a total of 5.9 hours on six different dates. At the omnibus evidentiary hearing, 

Mr. Rogers testified that Mr. Wilcher was lead counsel, that Mr. Wilcher visited petitioner twice 

at the jail and that he visited petitioner once there. Mr. Wilcher also testified that he and Mr. 

Wilcher met with petitioner every time the court held a status conference or evidentiary hearing 

in the case. Finally, Mr. Rogers testified that the potential witnesses suggested by petitioner 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

would not have been helpful to petitioner’s case. 

Petitioner also claims that trial counsel failed to conduct an adequate pretrial 

investigation because they did not interview the victim’s daughters prior to trial. Petitioner 

asserts that, as a result, counsel was unable to challenge the daughters’ inconsistent claims 

regarding who caused the victim’s injuries (their biological father or petitioner), and their claim 

that petitioner “brainwashed” them. 

The decision to interview a child witness prior to trial is a strategic decision. Strategic 

trial decisions generally cannot form the basis of a claim of ineffective assistance of counsel. See 

Syl. Pt. 6, Miller, 194 W.Va. at 6-7, 459 S.E.2d at 117-18. Further, as noted above, during Mr. 

Wilcher’s investigation, he obtained the victim’s medical records, interviewed counseling staff 

who had worked with the victim’s daughters, and conferenced with a lawyer involved in the 

victim’s underlying child and abuse case that regarded her daughters. Moreover, the record on 

appeal shows that Mr. Wilcher effectively cross-examined the victim’s daughters by calling into 

question their memories of the relevant events and that fact that they both initially blamed their 

biological father for the victim’s death. 

Petitioner next argues that trial counsel failed to conduct an adequate pretrial 

investigation because they failed to retain an expert to challenge the testimony of Clinical 

Psychologist Bridgett Magnetti, the daughters’ trauma therapist, or to prepare Mr. Rodgers for 

his cross-examination of Ms. Magnetti, which petitioner claims was ineffective. The decision to 

call an expert witness is a strategic decision that generally cannot form the basis of a claim of 

ineffective assistance of counsel. Id. Here, Ms. Magnetti’s testimony did not pertain to whether 

petitioner murdered the victim. Instead, she testified to the trauma suffered by the victim’s 

daughters and offered an opinion regarding why they changed their initial story that the victim 

had been with their biological father on the night she was injured. Trial counsel moved to 

exclude Ms. Magnetti’s testimony on relevancy grounds, although the trial court denied the 

motion. Further, trial counsel strategically kept their cross-examination of Ms. Magnetti very 

brief given that the State had Ms. Magnetti testify to buttress the children’s credibility. 

Moreover, trial counsel attempted to get Ms. Magnetti to concede that the children may have had 

memory problems or difficulty correctly remembering events. 

Petitioner also argues that trial counsel failed to retain an expert on child sexual abuse 

and child memory issue to attack the victim’s daughters’ credibility. We disagree. Petitioner was 

on trial for murder, and not for sexually abusing the victim’s daughters. At best, a child sexual 

abuse or memory expert would have testified to collateral issues, which could have confused the 

jury or caused them to fixate on the children’s sexual abuse. 

Finally, petitioner claims that the investigation was inadequate because counsel failed to 

have DNA testing conducted on a toenail found on the decedent’s body. Petitioner claims that 

this error precluded the defense from arguing that a third party perpetrated the crime. We reject 

petitioner’s claim on that ground that he never mentioned to the police that an alternate 

perpetrator caused the victim’s injuries; nor did the defense put on any evidence that a 

perpetrator other than petitioner was at the scene. In fact, petitioner told the police that the victim 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

accidentally fell down the steps. Accordingly, there was no reason to believe that DNA testing of the 

toenail found at the scene would have provided exculpatory evidence. 

Accordingly, we find that petitioner fails to support his claim his counsel’s investigation 

and strategic decisions were deficient under an objective standard of reasonableness. 

Specifically, we reject petitioner’s claims that counsel’s pretrial consultations with petitioner and 

their strategic decisions not to interview the victim’s daughters, not to retain or call certain expert 

witnesses, and not to conduct DNA testing on the toenail were deficient under an objective 

standard of reasonableness. That said, even if we had found counsel’s investigation to be 

objectively deficient, there was simply no reasonable probability that the outcome at trial would 

have changed given the copious evidence of petitioner’s guilt. 

In petitioner’s fourth and final assignment of error, he argues that even if no one single 

error rises to the level of prejudice, his trial counsel’s errors were cumulatively prejudicial and 

require the reversal of his conviction. Having found no error, we reject this claim. 

For the foregoing reasons, we affirm the circuit court’s May 5, 2016, order denying 

habeas relief. 

Affirmed. 

ISSUED: September 1, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

DISSENTING: 

Justice Robin Jean Davis 

11