Edwin W.H. v. David Ballard, Warden, 15-1063

Background

Petitioner Edwin W. II was tried in 2006 for multiple sexual offenses against a minor (A.C.); jury convicted on several counts and sentenced to 125–265 years; direct appeal denied.
At trial the victim testified to sexual contact and exposure to pornography; petitioner admitted showing pornographic material but denied sexual assault.
Two pelvic examinations were performed months apart: a West Virginia exam (no trauma, intact hymen) and a California exam (notching/scar on hymen). Dr. Weisse (WV) testified to both exams; the California report was admitted without objection and without testimony from the California examiners.
Petitioner later filed a habeas petition alleging (primarily) ineffective assistance of trial counsel for failing to object under the Confrontation Clause and for not calling the resident doctor (Dr. Ex) who performed the first exam.
After evidentiary hearings, the circuit court denied habeas relief, finding counsel likely made a strategic decision not to object and that petitioner failed to show prejudice under Strickland.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admission of out-of-state medical report violated Confrontation Clause	Edwin: report and Dr. Weisse’s testimony about it violated right to confront absent California doctors	State: petitioner did not raise standalone Confrontation Clause claim in habeas; issues were preserved as ineffective-assistance claims	Court: Petitioner did not raise a stand-alone Confrontation Clause claim in habeas; court limited review to ineffective-assistance claim and found no error
Whether habeas court erred by not performing harmless-error analysis for Confrontation Clause	Edwin: circuit court should have analyzed harmlessness and would find error non-harmless	State: petitioner bore burden and did not plead a separate confrontation claim; harmlessness review not required in habeas context here	Court: No separate confrontation claim was pleaded; no reversible error in limiting relief to ineffective-assistance theory
Whether trial counsel was ineffective for not objecting to the California report and Dr. Weisse’s testimony	Edwin: counsel’s failure was deficient and prejudiced the defense because the report was critical to prosecution	State: counsel reasonably could have chosen a strategy to allow the evidence (to show mixed exam results); even if deficient, petitioner cannot show reasonable probability of different outcome	Held: Court: counsel’s omission plausibly strategic; even assuming deficiency, petitioner failed Strickland prejudice prong because victim’s testimony and admissions supported conviction
Whether trial counsel was ineffective for not calling Dr. Ex as defense witness	Edwin: Dr. Ex would have corroborated favorable first exam	State: Dr. Ex’s testimony would be cumulative of Dr. Weisse’s testimony	Court: No deficient performance; testimony would be cumulative and properly excluded under rules against needless cumulative evidence

Key Cases Cited

State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (W. Va. 1995) (sets West Virginia standards for ineffective-assistance review incorporating Strickland)
State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (W. Va. 1974) (defense strategy deference in ineffective-assistance claims)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (W. Va. 1981) (a sexual offense conviction may rest on uncorroborated victim testimony)