### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED Vernon H. Dunlap, Petitioner Below, Petitioner 

### April 9, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs.) No. 17-0082 (Jefferson County CC-19-2010-C-377)

OF WEST VIRGINIA

Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Vernon H. Dunlap, by counsel Chri stian J. Riddel, appeals the December 30, 2016, order of the Circuit Cour t of Jefferson County denying hi s second amended petition for post-conviction habeas corpus relief. Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, by counsel Scott E. Johns on, filed a response in support of the circuit
court’s order. 1 On appeal, petitioner argues that the circ uit court erred in finding that his first habeas counsel’s investigation was appropriate as a strategy choice.

The Court has considered the parties’ briefs and the record on appe al. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

In the underlying criminal action, petitione r was indicted in September of 2005 for the first-degree murder of Jennifer Dodson. Ms. D odson’s body was found face down in a pool of
blood in her home. Petitioner was Ms. Dodson’s boyfriend and was last seen inside Ms. Dodson’s apartment the night she was murd ered. Petitioner was found unconsci ous in his truck that same night. When found, petitioner had two large knive s in his possession, however, neither the knives nor petitioner were soiled with blood. At trial, four witnesses testified that petitioner confessed to
them that he committed the murder. Petitioner’s tria l counsel asserted that the police arrested the wrong person and that no physical evidence linked petitioner to the crime. Ultimately, petitioner

1 Petitioner originally listed Da vid Ballard as respondent to this action. However, Ralph Terry is now the acting warden at the facility in question. Accordingly, the proper public officer has been substituted pursuant to Rule 41(c) of the Rules of Appellate Procedure.

1was convicted of first-degree murder, with out mercy. Petitioner wa s sentenced to life imprisonment without the possibil ity of parole. Petitioner appealed his conviction and this Court denied his appeal.

Petitioner filed his habeas petition pro se in 2006. Appointed counsel filed an amended petition alleging ineffective assistance of trial counsel, improper bifurcation of guilt and mercy phases, and the admission of inadmissible eviden ce. In April of 2008, pe titioner and his trial
counsel testified at an omnibus hearing. In October of 2008, petitione r’s petition for habeas corpus (hereinafter “first petition”) was denied. Petitioner appealed that denial and this Court affirmed the
habeas court’s order. See State ex rel. Dunlap v McBride , 225 W.Va. 192, 691 S.E.2d 183 (2010).

Thereafter, petitioner filed a second petition for writ of habeas corpus in the Circuit Court of Jefferson County asserti ng ineffective assistance of habeas counsel. New appointed counsel filed an amended petition and a supporting memora ndum of law. In a ten- page order entered on December 30, 2016, the circuit court denied the ame nded petition after finding that petitioner was entitled to no relief. With regard to the first ha beas counsel’s investigat ion, the circuit court found that “[first habeas counsel]’s conduct arose from decisions involving stra tegy, tactics and arguable
courses of action” and that “because other reasonab le lawyers, similarly situated, would have acted in a like manner to prior habeas counsel, the petiti oner fails to meet his burden of proof, and is not entitled to habeas corpus relief" on the second ha beas petition. Petitioner now appeals that order.

We apply the following standard of review in habeas appeals:

“In reviewing challenges to the findings and conclusi ons of the circuit court in a habeas corpus action, we apply a thre e-prong standard of review. We review the final order and the ultimate dispositi on under an abuse of discretion standard; the underlying factual findings under a clearly erroneous st andard; and qu estions of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard , 237 W.Va. 411, 787 S.E.2d 864 (2016).

We also bear in mind that

[a] prior omnibus habeas corpus heari ng is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known; however, an applicant may still petition the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing; newly discovered evidence; or , a change in the law, favorable to the applicant, which may be applied retroactively.

Syl. Pt. 4, Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981).

On appeal, petitioner argues that the circuit court erred in finding petitioner’s first habeas
counsel’s assistance was reasonable because counsel’ s level of investigati on was the result of a

2permissible strategic choice. Specifically, petitione r asserts that his first habeas counsel did not investigate or subpoena one of th e witnesses to petitioner’s confe ssions and that habeas counsel did not investigate the alibi of a potential susp ect. Petitioner argues that strategic choices by
counsel cannot be made wit hout a thorough investigation.

We find no error in the circ uit court’s summary dismissal of petitioner’s second habeas petition. West Virginia Code § 53-4A-3(a ), in relevant part, provides that

[i]f the petition, affidavits, exhibits, r ecords and other documentary evidence attached thereto, or the record in the pr oceedings which resulted in the conviction and sentence, or the record or records in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or the record or records in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence (if a ny such record or records are part of the
official court files of the court with whose cl erk the petition is file d or are part of the official court files of any other court with in the same judicial circuit as the court with whose clerk such petition is filed and are thus available for examination and review by such court) show to the satisfa ction of the court that the petitioner is entitled to no relief, or th at the contention or contenti ons and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court shall by order entered of record refuse to grant a writ, and such refusal shall constitute a final judgment.

Thus, it is clear that the circuit court had th e authority to summarily dismiss the petition upon a finding that petitioner was entitle d to no relief. As addressed be low, petitioner’s ineffective
assistance of habeas counsel claim was without me rit, so we find no error in the circuit court’s summary dismissal of the claim. 2

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). A claim may be disposed of for

2 Although the circuit court dismi ssed petitioner’s ineffective as sistance of habeas counsel claim on the ground that counsel’s le vel of investigation was a strategic choice, we may affirm the decision for any just reason appearing from the record. Syl. Pt. 4, N.C. v. W.R.C. , 173 W.Va. 434, 317 S.E.2d 793 (1984) (“‘This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclose d by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.’ Syl. pt. 3, Barnett v. Wolfolk , 149 W.Va. 246, 140 S.E.2d 466 (1965).”).

3failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky , 195 W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet th e burden of proof imposed by either part of
the Strickland / Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden, W.Va. Penitentiary , 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citation omitted).

Petitioner’s first claim that his first habeas counsel did not investigate or subpoena one of the witnesses to petitioner’s confession is meri tless because petitioner cannot claim a reasonable probability that the result of the proceedings woul d have been different. The record provides four witnesses that testified to separate confessions made by petitioner. Petitioner alleges that further investigation could produce information to disc redit one of those witnesses, but three more individuals support the underlyi ng conviction with testimony of petitioner’s confession. Accordingly, we find that the ci rcuit court did not err in finding that the first habeas counsel provided effective assistance.

Petitioner’s second claim that the first habeas counsel did not inves tigate the alibi of a potential suspect is also meritless because petiti oner cannot show that counsel’s performance was
deficient or that the result of his proceedings would have been di fferent. Petitioner did not provide an affidavit of the allegedly missing information or the records he describes in his second amended habeas petition. In fact, petitioner provided no evidence to support his position. Petitioner makes only vague assertions that certain records or contact with this suspect would have produced discrepancies but does not assert how those discre pancies would manifest a change in the outcome. West Virginia Code § 53-4A-3(a) provides that summary dismissal is proper when “the petition, affidavits, exhibits, records and other documentary evidence” show to the satisfaction of the circuit court that petitioner is entitled to no relief. By not producing the records himself during the second habeas petition, petitioner’s clai ms are too vague to meet his burden of proof. Accordingly, we
find that the circuit court did not err in finding first habeas counsel provided effective assistance.

For the foregoing reasons, we affirm the circuit court’s Decemb er 30, 2016, order denying petitioner’s second amended petitio n for writ of habeas corpus.

Affirmed.

ISSUED : April 9, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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