STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Vernon H. Dunlap, FILED

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 Christian J. Riddel, appeals the December 30, 

2016, order of the Circuit Court of Jefferson County denying his second amended petition for 

post-conviction habeas corpus relief. Respondent Ralph Terry, Acting Warden, Mt. Olive 

Correctional Complex, by counsel Scott E. Johnson, filed a response in support of the circuit 

court’s order.1 On appeal, petitioner argues that the circuit 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 appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In the underlying criminal action, petitioner was indicted in September of 2005 for the 

first-degree murder of Jennifer Dodson. Ms. Dodson’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 murdered. Petitioner was found unconscious in his truck that same 

night. When found, petitioner had two large knives 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 trial counsel asserted that the police arrested the 

wrong person and that no physical evidence linked petitioner to the crime. Ultimately, petitioner 

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Petitioner originally listed David 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. 

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was convicted of first-degree murder, without mercy. Petitioner was sentenced to life 

imprisonment without the possibility 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 evidence. In April of 2008, petitioner and his trial 

counsel testified at an omnibus hearing. In October of 2008, petitioner’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 asserting ineffective assistance of habeas counsel. New appointed counsel 

filed an amended petition and a supporting memorandum of law. In a ten-page order entered on 

December 30, 2016, the circuit court denied the amended petition after finding that petitioner was 

entitled to no relief. With regard to the first habeas counsel’s investigation, the circuit court found 

that “[first habeas counsel]’s conduct arose from decisions involving strategy, tactics and arguable 

courses of action” and that “because other reasonable lawyers, similarly situated, would have acted 

in a like manner to prior habeas counsel, the petitioner fails to meet his burden of proof, and is not 

entitled to habeas corpus relief" on the second habeas petition. Petitioner now appeals that order. 

We apply the following standard of review in habeas appeals: 

“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.” 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 hearing 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 investigation was the result of a 

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permissible strategic choice. Specifically, petitioner asserts that his first habeas counsel did not 

investigate or subpoena one of the witnesses to petitioner’s confessions and that habeas counsel 

did not investigate the alibi of a potential suspect. Petitioner argues that strategic choices by 

counsel cannot be made without a thorough investigation. 

We find no error in the circuit 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, records and other documentary evidence 

attached thereto, or the record in the proceedings 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 any such record or records are part of the 

official court files of the court with whose clerk the petition is filed or are part of the 

official court files of any other court within 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 satisfaction of the court that the petitioner is 

entitled to no relief, or that the contention or contentions 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 the authority to summarily dismiss the petition upon a 

finding that petitioner was entitled to no relief. As addressed below, petitioner’s ineffective 

assistance of habeas counsel claim was without merit, 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 

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Although the circuit court dismissed petitioner’s ineffective assistance of habeas counsel 

claim on the ground that counsel’s level 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 disclosed 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).”). 

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failure 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 the 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 meritless because petitioner cannot claim a reasonable 

probability that the result of the proceedings would 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 discredit one of those witnesses, but three more 

individuals support the underlying conviction with testimony of petitioner’s confession. 

Accordingly, we find that the circuit 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 investigate the alibi of a 

potential suspect is also meritless because petitioner cannot show that counsel’s performance was 

deficient or that the result of his proceedings would have been different. 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 discrepancies 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 claims 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 December 30, 2016, order denying 

petitioner’s second amended petition 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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