Robert W. Johnson, Jr. v. David Ballard, Warden

Summary

The West Virginia Supreme Court of Appeals affirmed the denial of Robert W. Johnson, Jr.'s post-conviction habeas petition challenging the effectiveness of his trial counsel. The court rejected claims concerning psychiatric evaluation, waiver of a preliminary hearing, delay in filing a direct appeal, failure to subpoena witnesses, and failure to seek additional DNA testing.

Holdings

1. Trial counsel was not ineffective for failing to request a fifteen-day inpatient psychiatric evaluation because Johnson had refused to participate in the outpatient evaluation, counsel reasonably believed Johnson would not cooperate with further evaluation, and there was no reasonable probability that the additional evaluation would have produced a different trial outcome or a finding of mental illness.
2. Trial counsel was not ineffective for advising Johnson to waive the preliminary hearing because counsel reasonably made a strategic decision based on the available information and the strength of the State's probable-cause case, and Johnson failed to show that the hearing would have yielded additional information or changed the result.
3. Johnson suffered no prejudice from trial counsel's failure to timely pursue a direct appeal because resentencing restored his opportunity to appeal and the ensuing direct appeal resulted in affirmance of his conviction.
4. Trial counsel was not ineffective for failing to call Bobby Shadowing and Rick Johnson because decisions about which witnesses to call are strategic, and Johnson presented no evidence at the habeas hearing that either witness would have provided an alibi, relevant surveillance evidence, or a different trial outcome.
5. Trial counsel was not ineffective for declining to seek additional DNA testing because Johnson's assertion that testing would produce exculpatory evidence was speculative, the testing could have produced inculpatory evidence, and he failed to show a reasonable probability of a different result.

Questions Presented

1. Whether trial counsel was ineffective for failing to seek a fifteen-day inpatient psychiatric evaluation after Johnson refused to participate in an outpatient evaluation.
2. Whether trial counsel was ineffective for advising Johnson to waive a preliminary hearing.
3. Whether trial counsel's failure to timely file a direct appeal constituted ineffective assistance when Johnson was later resentenced and received a direct appeal that resulted in affirmance.
4. Whether trial counsel was ineffective for failing to subpoena or call two allegedly exculpatory witnesses.
5. Whether trial counsel was ineffective for failing to request additional DNA testing.

Disposition

affirmed