778 S.E.2d 694
W. Va.2015Background
- Petitioner Tex S. was convicted (jury) of first-degree sexual assault and sexual abuse by a parent/guardian based on a child victim’s statements and forensic testing showing seminal fluid on lip swabs; no DNA linked Petitioner to those samples.
- Trial counsel Paul Lane suffered a serious head injury before trial, briefly had his license limited, later reinstated and continued representation; he committed suicide shortly after sentencing.
- At trial State experts testified seminal fluid/PSA was identified on lip swabs but no Y-chromosome/sperm cells were found; a psychologist for the State opined the child was sexually abused and not suggestible. Defense called Dr. Krieg; portions of his propensity-related opinion were excluded in Daubert hearings.
- Petitioner filed a post-conviction habeas petition claiming (inter alia) ineffective assistance of counsel (challenging handling of forensic testing, disclosures, objections), erroneous admission of expert testimony diagnosing child sexual abuse, and seeking discovery/post-conviction testing.
- The circuit court denied habeas without an omnibus evidentiary hearing (28-page order addressing claims); Petitioner appealed. The West Virginia Supreme Court affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circuit court abused discretion by denying an omnibus evidentiary hearing | Petitioner: hearing was required to develop expert testimony and factual disputes (forensic experts, counsel competency) | State: extensive briefing and 28-page order addressed claims; hearing would not add material facts; trial counsel (key witness) unavailable | Court: No abuse of discretion; order sufficiently explains why hearing unnecessary and trial counsel’s unavailability weighed against need |
| Whether counsel was ineffective for failing to further investigate/challenge forensic testing identifying seminal fluid | Petitioner: counsel should have retained experts, requested/attended additional testing, sought independent testing, and better cross-examined | State: counsel consulted experts, made strategic decision (with Petitioner) to reserve independent testing and to cross-examine State experts; no DNA tied Petitioner to evidence | Court: Claims are hindsight second-guessing of strategy; performance not deficient and no reasonable probability of different outcome |
| Whether admission of State expert testimony diagnosing the child as sexually abused was scientifically invalid and prejudicial | Petitioner: such diagnostic testimony is unreliable and contributed to wrongful conviction; invites Court to overturn precedent | State: West Virginia precedent permits expert psychological testimony about whether child comports with profile of abused child | Court: Expert testimony permissible under existing law; petitioner’s invite to overturn precedent rejected |
| Whether petitioner was entitled to discovery/post-conviction testing of forensic evidence | Petitioner: sought disclosure of testing documentation and independent testing of preserved evidence | State: Petitioner waived independent testing at trial; he failed to show good cause under post-conviction discovery rules | Court: Denial proper; petitioner did not meet Rule 7 good-cause requirement |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance of counsel standard)
- State v. Miller, 194 W.Va. 3 (1995) (standards for ineffective assistance review; role of omnibus hearing and trial counsel testimony)
- Perdue v. Coiner, 156 W.Va. 467 (1973) (court may deny habeas without hearing if petition and record show petitioner entitled to no relief)
- Mathena v. Haines, 219 W.Va. 417 (2006) (three-prong standard of review for habeas appeals)
- Gibson v. Dale, 173 W.Va. 681 (1984) (discretion of circuit court whether to hold evidentiary hearing in post-conviction habeas)
- State ex rel. Valentine v. Watkins, 208 W.Va. 26 (2000) (discussion of review standard and discretion in habeas proceedings)
- Edward Charles L., 183 W.Va. 641 (1990) (permits expert psychological testimony about whether a child comports with profile of sexual-abuse victim)