Timothy C. v. Straughn

• Docket Number: 22-0147
• Decision Date: 15 September 2023
• Parties: Timothy C., Petitioner Below, Petitioner v. Shawn Straughn, Superintendent, Northern Correctional Center, Respondent Below, Respondent
• Court: West Virginia Supreme Court

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Timothy C., Petitioner Below, Petitioner
v.
Shawn Straughn, Superintendent, Northern Correctional Center, Respondent Below, Respondent

No. 22-0147

Supreme Court of Appeals of West Virginia

September 15, 2023

Jackson County 18-C-13

MEMORANDUM DECISION

Petitioner Timothy C. appeals the January 28, 2022, order of the Circuit Court of Jackson County denying his petition for a writ of habeas corpus, arguing that the circuit court erred in concluding that he did not receive ineffective assistance from his trial and appellate counsel.^[1],[2],[3]Upon our review, finding no substantial question of law and no prejudicial error, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21(c).

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Conviction and Direct Appeal

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In 2013, a Jackson County grand jury returned an indictment charging petitioner with several sex crimes involving two children, M.C. and A.O. Two of the charges, which named A.O. as the victim, are relevant to this case: one count of first-degree sexual abuse and one count of sexual abuse by a custodian or person in a position of trust.

Prior to petitioner's trial in 2014, the State filed a motion seeking to obtain a saliva sample from petitioner to compare his DNA to the DNA of semen discovered on a shirt belonging to M.C. The trial court granted the State's motion over petitioner's objection. DNA testing excluded petitioner as having produced the semen on the shirt, and the State sought to exclude the evidence from petitioner's trial. The trial court granted the State's request that the DNA evidence be excluded over petitioner's objection.

At petitioner's trial, the State presented the testimony of two minors-E.A. and R.E.- pursuant to Rule 404(b) of the West Virginia Rules of Evidence for the purpose of showing petitioner's lustful disposition for children. Both E.A. and R.E. testified that petitioner had molested them. During petitioner's case-in-chief, he presented evidence "show[ing] inconsistencies in the statements given by" E.A. and R.E. "concerning their allegations against the petitioner." State v. Timothy C., 237 W.Va. 435, 442, 787 S.E.2d 888, 895 (2016). Additionally, he presented evidence that criminal charges against petitioner "arising from R.E.'s allegations were dismissed." Id. Petitioner "also presented testimony that R.E. had been encouraged by her mother to make false accusations against the petitioner." Id. Finally, petitioner presented evidence that both M.C. and A.O., after first making their allegations against petitioner, had denied those allegations before the trial. Id.

The jury found petitioner guilty on five counts-three concerning M.C. and the two concerning A.O. Petitioner was sentenced as to each of the five counts. Relevant to this appeal, for the counts involving A.O., petitioner was sentenced to five to twenty years of incarceration for first-degree sexual abuse and ten to twenty years of incarceration for sexual abuse by a custodian. The two sentences were set to run consecutively to each other.

Petitioner appealed to this Court, arguing that the trial court erred by excluding the DNA evidence that established he did not produce the semen found on M.C.'s shirt. In Timothy C., the Court agreed with petitioner's argument that the DNA evidence was wrongfully excluded and reversed the three convictions involving M.C. In so deciding, the Court said, "[I]nasmuch as this evidentiary issue is unique to M.C., we further find this error was harmless as to the convictions involving A.O." Id. at 446, 787 S.E.2d at 899. Petitioner also argued on appeal that the evidence was insufficient to justify his conviction for sexual abuse by a custodian. The Court concluded that "there was sufficient evidence for the jury to convict the petitioner of being a custodian at the time he sexually abused A.O." Id. at 451, 787 S.E.2d at 904. The Court remanded the matter to the trial court for further proceedings regarding the convictions it reversed, affirming the remainder of the convictions. Petitioner was not tried again following remand of the case to the trial court. Petitioner is presently incarcerated solely on the convictions relating to A.O.

B. Petitions for Habeas Corpus Relief

In February 2018, petitioner filed a pro se petition for a writ of habeas corpus in the Circuit

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Court of Jackson County. Petitioner set forth multiple grounds upon which he claimed respondent held him unlawfully, including that his Sixth Amendment rights had been violated because his counsel conducted "No investigation[,] wouldn't interview (404-B) witnesses or at trial," and that his Fourth Amendment rights had been violated because the State "didn't have probable cause to get" his DNA. The circuit court appointed counsel to represent petitioner, and counsel filed an amended petition and Losh list.^[4] The amended petition restated the grounds for relief set forth in the pro se petition and asserted, "During the meeting with the Petitioner, counsel explained that . . . the DNA evidence the Petitioner contends was obtained without probable cause . . . was exculpatory not inculpatory and not an issue to raise in habeas review." The amended petition further said, "The Petitioner alleges that trial counsel failed to ask 404(b) witness R.E. and alleged victim M.C. if their mothers put them up to making accusations against the Petitioner." Petitioner's habeas counsel included a statement in the amended petition averring that, upon reviewing the record, "interview[ing] trial counsel regarding the allegations made in the petition," consulting with his client, and reviewing the law, "some, most or all of the grounds the client wishes to advance are not supported by the law or evidence."

The circuit court held an evidentiary hearing on October 25, 2021. In support of his argument that his Fourth Amendment rights were violated, petitioner testified that "there's was [sic] two statements made . . ., plus the DNA evidence . . . because the chain of custody was not kept, but the judge still issued the warrant, . . . because of that, and the chain of custody should have been kept for a warrant." Regarding his trial counsel's investigation and questioning of E.A. and R.E., petitioner testified: "Because I got three or four statements in my evidence somewhere that them girls were made to put up to say that, and he wouldn't ask them questions . . . ." On cross-examination, petitioner was asked about his trial counsel's strategy in questioning M.C. and R.E. Petitioner admitted that his trial counsel had talked with him prior to the trial about how questioning would proceed, and he admitted that the way in which trial counsel questioned the witnesses was part of trial counsel's trial strategy. Petitioner's trial counsel was not called to testify at the evidentiary hearing; the only evidence presented was petitioner's own testimony.

The circuit court entered an order on January 28, 2022, denying petitioner's request for habeas relief. The circuit court determined that the Court's decision in Timothy C. constituted "a final adjudication on all issues but Petitioner's ineffective assistance of counsel claim," and, therefore, all issues but the ineffective assistance of counsel claim had either been waived or subject to res judicata. As for the ineffective assistance of counsel claim, the court decided that petitioner failed to show that his trial counsel's performance was deficient. Specifically, regarding petitioner's allegation that his trial counsel was ineffective in...