Michael M. v. Ralph Terry, Acting Warden, 17-0112

Background

Petitioner Michael M. was convicted by a jury (2001) of one count of first-degree sexual assault and five counts of sexual abuse by a parent/guardian for acts against his daughter, committed when she was about 10–12; effective sentence 25–55 years.
The victim reported the abuse; officers interviewed her and Corporal Wotring obtained a custodial statement from petitioner after Miranda waiver; petitioner later was arrested. Petitioner contested voluntariness at trial and in habeas proceedings.
Grand jury returned a 20‑count indictment based on Corporal Wotring’s testimony; counts alleged incidents over multi‑year ranges. Circuit court required a bill of particulars; State identified five specific incidents in Preston County and the court narrowed counts before trial, sending six counts to the jury.
Petitioner raised multiple grounds in his post‑conviction habeas petition (filed 2015), including ineffective assistance of counsel, defective indictment, fraudulent grand jury testimony, improper admission of evidence, denial of continuance, biased presentence report, and cumulative error.
The circuit court held an omnibus hearing (June 2016) and denied habeas relief (Nov. 29, 2016). The West Virginia Supreme Court reviewed the denial and affirmed, adopting the circuit court’s findings and conclusions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance of counsel	Trial counsel failed in various respects (e.g., challenges to indictment, evidence suppression, failure to obtain continuance, and for the first time on appeal, failing to object to prosecutor’s closing)	Counsel’s performance was not constitutionally deficient; many claims were litigated or waived; new claim not preserved for appeal	Denied — no habeas relief; appellate court declined to review the unpreserved new claim
Defective indictment / notice	Indictment was vague, did not state essential elements or specific dates/times	Time was not of the essence; bill of particulars supplied required specifics	Denied — court found adequate notice after bill of particulars and narrowing of counts
Fraudulent grand jury testimony	Corporal Wotring allegedly gave false testimony to grand jury, rendering indictment invalid	No showing that testimony was fraudulent or that indictment should be set aside	Denied — circuit court findings adopted; no reversible error
Denial of continuance	Trial counsel requested continuance; denial prejudiced defense	State and court found no abuse in trial scheduling or prejudice	Denied — no relief granted
Improper admission of evidence (statement, warrantless search)	Petitioner’s statement was involuntary; search evidence obtained without consent	Court found voluntariness and lawful admission; suppression motions were denied at trial and upheld	Denied — statement and seized evidence admissible
Biased presentence report	PSI contained bias that affected sentencing	Sentence was within statutory bounds and no prejudicial bias shown	Denied — no relief on sentencing ground
Cumulative error	Multiple trial errors together warrant reversal	Errors (if any) were not shown to be prejudicial individually or cumulatively	Denied — no cumulative prejudice shown

Key Cases Cited

Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (W. Va. 2006) (standard of review for habeas corpus: abuse of discretion for ultimate disposition, clearly erroneous for facts, de novo for law)
State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (W. Va. 1998) (appellate review bars raising new claims on appeal that were not preserved below)
In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (W. Va. 2015) (use of initials to protect identities in sensitive cases)
Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (W. Va. 2013) (same practice of using initials)
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (W. Va. 2005) (same practice of using initials)
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (W. Va. 1990) (same practice of using initials)