Kenneth M. v. Karen Pszczolkowski, Warden, 16-0259

In 2009 petitioner Kenneth M. was convicted by jury of multiple counts of first-degree sexual assault, sexual abuse by a person in a position of trust, and incest; aggregate sentence 30–70 years.
Direct appeal was refused by the West Virginia Supreme Court in 2010.
Petitioner filed a pro se habeas petition in 2013; counsel was later appointed and an amended petition was filed raising ineffective-assistance and other claims.
At a February 2015 omnibus evidentiary hearing petitioner testified that trial counsel was ineffective for (1) failing to strike two jurors, (2) failing to investigate and call petitioner’s sons as witnesses, and (3) failing to investigate and call his sister‑in‑law.
The circuit court denied habeas relief by order entered February 2, 2016; petitioner appealed only the ineffective-assistance claims.
The West Virginia Supreme Court issued a memorandum decision affirming the denial, adopting the circuit court’s findings and concluding no clear error or abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to strike two jurors	Trial counsel unreasonably failed to move to strike two jurors, prejudicing the trial	Circuit court found no deficient performance or resulting prejudice	Denied — no relief; circuit court's findings adopted
Failure to investigate and call petitioner’s sons	Counsel failed to investigate sons’ potential exculpatory testimony and failed to call them, depriving petitioner of effective assistance	Record did not show counsel’s performance was constitutionally deficient or that omission caused prejudice	Denied — no ineffective-assistance shown
Failure to investigate and call sister‑in‑law	Petitioner alleges counsel did not investigate or call sister‑in‑law as a witness	Claim was not properly presented in the habeas petition/record below	Denied as not preserved; petitioner bears burden of proof

Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006) (standard of review for habeas corpus findings)
State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009) (appellate standard of review citation)
Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004) (habeas petitioner bears burden to support allegations)
State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486 (1966) (burden of proof in habeas proceedings rests on petitioner)
Stanley v. Dale, 171 W.Va. 192, 298 S.E.2d 225 (1982) (habeas petitioner must prove allegations by a preponderance of the evidence)