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Supreme Court of Appeals ofWest Virginia.

David BALLARD, Warden, Mount Olive Correctional Complex, Respondent Below, Petitioner v. Brian Bush FERGUSON, Petitioner Below, Respondent.

No. 12–1028.

Decided: October 25, 2013

Marcia Ashdown, Prosecuting Attorney, Perri DeChristopher, Assistant Prosecutor, Morgantown, WV, for Petitioner. Darrell Ringer, The Law Offices of Darrell Ringer, Morgantown, WV, Paul W. Schmidt, Sarah L. Wilson, Christian J. Pistilli, Covington & Burling, Washington, DC, for Respondent.

This is an appeal of David Ballard, Warden of Mount Olive Correctional Complex (“the State”), from an order of the Circuit Court of Monongalia County that granted habeas corpus relief to Brian Bush Ferguson (“Mr.Ferguson”). The State contends that (1) the circuit court erred in finding that Mr. Ferguson was denied effective assistance of trial counsel and (2) the circuit court erred in limiting the testimony of one of its expert witnesses during the habeas corpus proceeding.1 Finding no error in the circuit court's rulings, we affirm.



On February 2, 2002, at around 7:00 p.m., Jerry Wilkins was shot in the back outside his apartment near University Avenue in Morgantown, West Virginia.2 Mr. Wilkins died in a hospital shortly after the shooting. Within hours of the shooting, the police received varying descriptions of the assailant from several witnesses.3 The police also learned that Mr. Ferguson4 was a person known to have a grudge against the victim.5 Subsequent to the investigation by the police, Mr. Ferguson was indicted by a grand jury for first degree murder.

A jury trial was held in the case in November of 2002. During the trial, the State called Brian Johnson, a friend of Mr. Ferguson, as a witness. Mr. Johnson testified that, a few weeks before the murder, he saw a large stainless steel revolver in Mr. Ferguson's apartment.6 Mr. Ferguson called it a magnum.7 There was also testimony by Mr. Johnson that, after the murder, Mr. Ferguson told him that the weapon was “long gone, that police had no eyewitness to identify the perpetrator and that there was no gunshot residue.”8 Mr. Johnson also testified that Mr. Ferguson was not with him prior to the murder.9 A friend of the victim, Solomon Wright, testified that the victim stated shortly before his murder that if anything happened to him, Mr. Ferguson would be responsible. Another witness, Bernard Russ, testified that Mr. Ferguson once stated that “I am going to get Jerry when his fraternity brothers are not around.”10 There also was evidence that suggested Mr. Ferguson was stalking the victim prior to the murder.11 The State additionally presented evidence that Mr. Ferguson once threatened the victim with a knife.

Mr. Ferguson testified in his own defense and called several witnesses. One of Mr. Ferguson's witnesses, his girlfriend Ebony Gibson, testified that Mr. Ferguson did not pull a knife on the victim.12 Mr. Ferguson testified that although he did not like the victim, he never threatened the victim with a knife, nor did he ever indirectly threaten the victim. Mr. Ferguson testified that he was alone in his apartment during the afternoon on the day that the victim was killed. Later, he went to a recreation center.13 Mr. Ferguson denied killing the victim.

The jury returned a verdict on November 26, 2002, finding Mr. Ferguson guilty of murder in the first degree, without a recommendation of mercy. The trial court subsequently sentenced Mr. Ferguson to prison for life without the possibility of parole. Mr. Ferguson appealed the verdict to this Court, and we affirmed the judgment in State v. Ferguson, 216 W. Va. 420, 607 S.E.2d 526 (2004), cert. denied, 546 U.S. 812, 126 S.Ct. 332, 163 L.Ed.2d 45 (2005).

Mr. Ferguson filed a petition for habeas relief in March of 2006. By order dated September 11, 2007, the circuit court summarily dismissed the petition without holding an omnibus hearing. Mr. Ferguson filed a petition for appeal with this Court. We remanded the case to the circuit court to hold an omnibus hearing. The circuit court held a three-day omnibus hearing in September 2011. During the hearing, Mr. Ferguson called two witnesses who testified that, shortly after the victim was killed, a person named Robert Coles told them that he had killed the victim. One of the two witnesses, Mary J. Linville, testified that she gave a statement to the police informing them of Mr. Coles' confession prior to the trial. There was evidence that Mr. Ferguson's trial counsel learned of Ms. Linville's statement implicating Mr. Coles through material obtained from the State during discovery. There was also evidence that trial counsel failed to do an independent investigation of Ms. Linville's statement. By order entered August 8, 2012, the circuit court found that Mr. Ferguson was denied effective assistance of counsel because trial counsel failed to investigate the confession by Mr. Coles. The order required the State to release Mr. Ferguson if it did not retry him or file an appeal. This State filed this appeal.



In this appeal, we are called upon to review the trial court's order in a habeas corpus proceeding. We have held the following regarding the standard of review of such an order:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Syl. pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). See also Syl. pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975) (“Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong.”).



In this proceeding, the State has filed an appeal from the circuit court's decision granting habeas relief to Mr. Ferguson. Our cases have recognized, and we so hold, that “[a] final judgment entered by a circuit court under the provisions of the West Virginia Post–Conviction Habeas Corpus Act may be appealed ․ by either party [under W. Va.Code § 53–4A–9(a) (1967) (Repl.Vol.2008) ].” Coleman v. Brown, 229 W. Va. 227, 231 n. 6, 728 S.E.2d 111, 115 n. 6 (2012). See also State v. Green, 207 W. Va. 530, 534 n. 5, 534 S.E.2d 395, 399 n. 5 (2000) (“The State's right to appeal an adverse ruling in habeas corpus is expressly provided by statute.”).

The State argues that the circuit court committed error in granting Mr. Ferguson habeas relief. According to the State, trial counsel made a reasonable strategic decision to not conduct an independent investigation of Ms. Linville's statement implicating Mr. Coles. The circuit court determined that the decision to not investigate Ms. Linville's statement was not reasonable. The circuit court further reasoned that such failure to investigate probably affected the outcome of the case.

Our law is clear in recognizing that the Sixth Amendment of the federal constitution and Article III, § 14 of the state constitution guarantee not only the assistance of counsel in a criminal proceeding but that a defendant has “the right to effective assistance of counsel.” Cole v. White, 180 W. Va. 393, 395, 376 S.E.2d 599, 601 (1988). We have held that “[a] trial court lacks jurisdiction to enter a valid judgment of conviction against an accused who was denied effective assistance of counsel and a judgment so entered is void.” Syl. pt. 25, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974). We have adopted a two-pronged test to determine whether a defendant has received effective assistance of counsel:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

Syl. pt. 6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). See also Syl. pt. 21, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974) (“Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.”).

We will examine the issue of ineffective assistance of counsel in two parts: (1) determining whether counsel's performance was deficient and (2) considering whether the result of the trial may result have been different.

A. Determining Whether Counsel's Performance Was Deficient.

During the habeas proceeding, Mr. Ferguson's Trial Counsel, James Zimarowski, testified.14 Mr. Zimarowski testified that, during discovery in the underlying case, he received a police report concerning a possible suspect in the murder of Mr. Wilkins. The police report indicated that roughly nine weeks after the murder, Mary J. Linville was arrested in a federal drug sweep. After her arrest, Ms. Linville gave the following statement, as recorded by a police officer, regarding Mr. Wilkins' murder:

Mary Linville advised that two days after the shooting of Jerry Wilkins, she was at [Ms.] Spring King's trailer in trailer park off Burroughs Street. Mary Linville said that it was around 0300–0400 hours. Mary Linville said that Robbie Coles showed up at the trailer with a heavy set girl. Mary Linville said that Robbie Coles was drunk and said, “Know that Jerry kid in the paper that got shot, I shot him.” Mary Linville said that Robbie Coles said that the police did not [know] what they were talking about, that he shot him in the chest and not the back. Mary Linville said that Robbie Coles advised that he shot Jerry Wilkins because he did not like the way he looked at him. Mary Linville said that Spring King had since moved [to] the Waynesburg area.

In addition to obtaining the above report, Mr. Zimarowski also received information that Mr. Coles denied making the confession and that he passed a polygraph test that showed he had no involvement with the death of Mr. Wilkins.

Mr. Zimarowski testified that he did not attempt to contact Ms. Linville, Ms. King, Mr. Coles, nor the “heavy set girl.” It was Mr. Zimarowski's belief that Ms. Linville's statement lacked credibility and that it would hurt Mr. Ferguson's defense if he tried to use testimony from a person arrested for drug offenses. Mr. Zimarowski also believed that Mr. Coles would cause a mistrial by blurting out that he passed a polygraph test.15 Mr. Zimarowski also testified that he believed Mr. Ferguson's case would be harmed because the jury would believe he created a false suspect.

During the habeas proceeding, the State also called an expert witness, J. Michael Benninger, who opined that Mr. Zimarowski did not provide ineffective assistance of counsel by failing to investigate Ms. Linville's statement.16 Mr. Ferguson called an expert witness, Stephen Jory, who opined that Mr. Zimarowski's failure to investigate Ms. Linville's statement was constitutionally deficient. The trial court adopted the opinion of Mr. Ferguson's expert on the deficiency prong of our test.

In conducting our review, we must make clear that, in addressing the issue of whether a reasonable attorney would have investigated Ms. Linville's statement, we are not concerned with the statement's truth or falsity, or whether the statement itself might have led to adverse consequences for Mr. Ferguson at trial. The sole issue presented now is whether Mr. Zimarowski acted as a reasonable criminal defense attorney in failing to attempt to interview Ms. Linville, Ms. King, Mr. Coles, and the “heavy set girl.” We believe that such failure was not objectively reasonable.

This Court has previously noted that, “under the rule of contemporary assessment, an attorney's actions must be examined according to what was known and reasonable at the time the attorney made his or her choices.” State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995). With respect to evaluating an attorney's failure to investigate an issue, we held in Daniel:

The fulcrum for any ineffective assistance of counsel claim is the adequacy of counsel's investigation. Although there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and judicial scrutiny of counsel's performance must be highly deferential, counsel must at a minimum conduct a reasonable investigation enabling him or her to make informed decisions about how best to represent criminal clients. Thus, the presumption is simply inappropriate if counsel's strategic decisions are made after an inadequate investigation.

Syl. pt. 3, Danie, id.

In the instant proceeding,, Mr. Zimarowski did not make any investigation into whether or not Mr. Coles had a role in causing the death of Mr. Wilkins. Instead, Mr. Zimarowski chose to rely upon information in the police report which suggested that Ms. Linville's statement was false because Mr. Coles passed a polygraph test.17 The circuit court's order noted that courts have found ineffective assistance of counsel in cases where trial “counsel blindly relies upon, and fails to investigate beyond, material information contained within a police report.” For example, the appellate court in Origer v. Iowa, 495 N.W.2d 132 (Iowa Ct.App.1992), squarely addressed the issue of trial counsel relying on a police report and failing to do an independent investigation of allegations in the report. The defendant in Origer was convicted of two murders. One conviction was reversed on direct appeal on the grounds of insufficiency of evidence, but the second conviction was affirmed. The defendant eventually challenged the second conviction in a habeas proceeding. One of the issues the defendant raised in the habeas proceeding was that his trial counsel was ineffective in failing to investigate a police report of a woman who alleged someone else confessed to the crime. The habeas court granted relief. The State appealed. The appellate court affirmed as follows:

In April 1985, Lori Engleson was interviewed by the [police]. She reported that she overheard Mary Jo Payne say she knew who killed the people in Forest City․

The defense counsel for Origer relied extensively on the investigations conducted by the [police]. Although the Lori Engleson statement was available to defense counsel before trial, defense counsel never conducted any independent investigations into the substance and validity of her allegations.

Again, defense counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. We agree with the findings of the district court that, had defense counsel followed up on the Engleson statement, defense counsel would have obtained the information set forth in the testimony of Mary Jo and Billy Payne.[18] Such testimony would have been consistent with Origer's alibi defense and alibi testimony. We find the failure to investigate in this regard creates a reasonable probability that, if there had been a more thorough investigation of the statements made by these persons in Iowa Falls, the result of the proceeding would have been different.

Origer, 495 N.W.2d at 137–138 (internal citations omitted).

In Elmore v. Ozmint, 661 F.3d 783 (4th Cir.2011) the Fourth Circuit addressed the issue of trial counsel limiting an investigation to police reports. The defendant in Elmore was convicted of murder and other crimes and was sentenced to death.19 In the habeas proceeding before the Fourth Circuit the defendant argued that he received ineffective assistance of counsel because his trial lawyers failed to perform an independent investigation of forensic evidence collected by the police. The Fourth Circuit agreed with the defendant as follows:

[W]e conclude that Elmore is entitled to habeas corpus relief․ Simply put, the gross failure of Elmore's 1984 trial lawyers to investigate the State's forensic evidence—including the medical examiner's time-of-death opinion, the pubic hairs allegedly recovered from Mrs. Edwards's bed, the nature of the “Item T” materials removed from Mrs. Edwards's bloody abdomen, and the fingerprint lifted from the blood-smeared toilet in Mrs. Edwards's en suite bathroom—had a palpably adverse effect on the defense.

The defense team ․ admitted to being lulled into inaction by the belief that the police were above reproach. At most, the defense team gave fleeting thought to hiring experts to examine the evidence. Anderson blamed scarce state resources, but his testimony indicated that he and Beasley never isolated evidence deserving further examination, identified appropriate experts and ascertained their fees, or inquired about state and other possible sources of funding.

Of course, it is now clear ․ that an investigation into the State's evidence would have exposed a multitude of questions about its legitimacy and reliability․

To be sure, it was thus an unreasonable application of [law] to rule that the failure of Elmore's lawyers to investigate the State's forensic evidence was justified by their faith in the integrity and infallibility of the police․

Elmore, 661 F.3d at 851–59 (footnote omitted).

In Sullivan v. Fairman, 819 F.2d 1382 (7th Cir.1987), the Seventh Circuit was called upon to address trial counsel's failure to investigate five possible occurrence witnesses listed in a police report. The defendant in Sullivan was convicted of murder at a bench trial by the State of Illinois and was sentenced to twenty-nine years imprisonment. After exhausting his state court remedies, the defendant filed a federal habeas petition. A federal district court granted habeas relief to the defendant, and the State appealed. The Seventh Circuit affirmed habeas relief as follows:

It is undisputed that, prior to trial, defense counsel was aware, through the police reports and discovery, that there were five witnesses, with no apparent reason to help the defendant, who made statements to the police that were exculpatory or inconsistent with the prosecution witnesses' statements. The names and addresses of these witnesses were available to defense counsel; yet his attempts to locate and to interview them were perfunctory at best. Given the importance of these witnesses to the defendant's case ․ it was not reasonable for trial defense counsel to rely on his own letter and telephone attempts or the attempts of the defendant's aunt to contact the witnesses.

Again, we stress that we do not hold that trial defense counsel must track down every lead or must personally investigate every evidentiary possibility before choosing a defense and developing it. We simply hold that, under the circumstances presented here, it was not reasonable for defense counsel to permit his client to stand trial for murder without a more thorough investigation of the available evidence.

Sullivan, 819 F.2d at 1391–92. See also Crisp v. Duckworth, 743 F.2d 580, 584 (7th Cir.1984) (“We do not agree that police statements can generally serve as an adequate substitute for a personal interview.”); Hoots v. Allsbrook, 785 F.2d 1214, 1219–1220 (4th Cir.1986) (“Giving Weldon's decision not to carry his investigation of possible eyewitness testimony past a review of the police report the proper amount of deference, however, we would be inclined to find that his performance in this respect was sufficiently deficient to satisfy the first prong part of the Strickland test. Neglect even to interview available eyewitnesses to a crime simply cannot be ascribed to trial strategy and tactics. Here, Weldon's conceded basis for foregoing any interview with three of the four witnesses to the robbery was simply that solely on his reading of a police report he concluded that interviews were not warranted.”); Garza v. Wolff, 528 F.2d 208, 213 (8th Cir.1975) (“We conclude that counsel was delinquent in not calling as witnesses each of the persons that accompanied [the victim] in the car at the time of the alleged rape as well as his failure to investigate the police report published in the Omaha World Herald.”).

In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) the United States Supreme Court addressed the issue of trial counsel relying solely upon information supplied in government reports. The defendant in Wiggins was convicted of murder and sentenced to death. One of the issues raised in his habeas appeal was that his trial attorneys were ineffective during the sentencing phase because they failed to independently investigate and present mitigating evidence of his dysfunctional background.20 The Supreme Court agreed:

[C]ounsel had available to them the written PSI [presentence investigation], which included a one-page account of Wiggins' personal history” noting his “misery as a youth,” quoting his description of his own background as “ ‘disgusting,’ “ and observing that he spent most of his life in foster care. Counsel also “tracked down” records kept by the Baltimore City Department of Social Services (DSS) documenting petitioner's various placements in the State's foster care system․

Counsel's decision not to expand their investigation beyond the PSI and the DSS records fell short of the professional standards․

The scope of their investigation was also unreasonable in light of what counsel actually discovered in the DSS records. The records revealed several facts: Petitioner's mother was a chronic alcoholic; Wiggins was shuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him and his siblings alone for days without food. As the Federal District Court emphasized, any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner's background.

Wiggins, 539 U.S. at 523–25, 123 S.Ct. at 2536–537. See also Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (granting habeas relief in death penalty case where trial counsel failed to provide an adequate investigation).

In the instant proceeding, the circuit court found that the evidence established that Mr. Zimarowski's failure to conduct an independent investigation of Ms. Linville's statement was deficient under an objective standard of reasonableness. The circuit court's order addressed the matter in part as follows:

In advance of trial, Mr. Zimarowski received and reviewed a complete police report, which memorialized all investigatory steps taken by the Morgantown Police Department in relation to the subject shooting. The report included Detective Ford's version of the Linville drug debriefing, at which Ms. Linville discussed the purported confession of Robbie Coles and the existence of two other individuals who witnessed the event. The report indicated that Mr. Coles denied making a confession, and that Mr. Coles passed a polygraph test.

Having received and reviewed the police report, Mr. Zimarowski knew, or should have known, that the police failed to make contact with Spring King, with the unidentified woman who purportedly accompanied Mr. Coles to Spring King's trailer, or with anyone else possessing potentially relevant information. Nevertheless, Mr. Zimarowski declined to independently investigate the purported confession. He made no effort to contact Mr. Coles, Ms. Linville, Ms. King, or anyone connected to these individuals. He made no effort to identify and establish contact with the unidentified woman who purportedly accompanied Mr. Coles. He made no effort to determine Mr. Coles's whereabouts on February 2, 2002, Mr. Coles's physical characteristics, Mr. Coles's criminal history, or Mr. Coles's access to firearms. In fact, Mr. Zimarowski failed to explore any of the questions left unanswered by the police report, including whether the report itself was complete and accurate. Such conduct clearly contravened the norms of criminal defense practice in effect at the time, especially in a case which exposed Mr. Ferguson to the most severe criminal penalty under West Virginia law.

At trial, Mr. Zimarowski attempted to advance his theory of the case—that someone other than Mr. Ferguson shot Jerry Wilkins—by employing a multi-layered strategy. In addition to “throwing Coles out there” for the jury to consider, Mr. Zimarowski attempted to convince the jury that the police not only rushed to judgment, but that the police conducted a sloppy, incomplete investigation. Had he himself adequately investigated the Coles confession, Mr. Zimarowski would have, and should have, uncovered evidence highly supportive of these trial themes. For example, when Detective Ford testified on redirect examination at trial that the police had followed up on the Coles confession, Mr. Zimarowski could have introduced evidence strongly rebutting the detective's assertion. This is not to mention the evidence that could have been introduced to support third-party guilt, which, as we know, was the central, overarching theory of the defense.

Because trial counsel limited his investigation of the Coles confession to a police report that contained obvious, potentially fruitful leads, because trial counsel provides insufficient justification for his cursory investigation of the Coles confession, and because trial counsel acted in contravention of the prevailing norms of practice at the time of the subject investigation and trial, the Court finds trial counsel's performance deficient under an objective standard of reasonableness.

In this appeal, the State has failed to demonstrate any error in the circuit court's determination that Mr. Zimarowski's performance was constitutionally deficient. The State contends that the circuit court's ruling has “set the bar too low” because it did not accord deference to Mr. Zimarowski's testimony explaining his strategy. We reject this argument because there was no objectively reasonable strategic justification for Mr. Zimarowski's failure to investigate Ms. Linville's statement. Mr. Zimarowski “failed to conduct even the minimal investigation that would have enabled him to come to an informed decision about what defense to offer․ Describing [Mr. Zimarowski's] conduct as ‘strategic’ strips that term of all substance.” Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994).

Mr. Zimarowski also testified during the habeas proceeding that he believed Ms. Linville's arrest for drug trafficking would cause the jury to not believe the testimony regarding Mr. Coles. This contention has no merit and does not justify Mr. Zimarowski's failure to investigate Ms. Linville's statement. Moreover, given the circumstances in which Ms. Linville made the statement implicating Mr. Coles, we do not believe that a jury would totally discredit Ms. Linville merely because she had a criminal history. The record in this proceeding demonstrated that Ms. Linville revealed Mr. Coles' confession for the purpose of getting leniency in the criminal case against her. A jury could infer that Ms. Linville was being truthful about the statement because she believed it would help her—not harm her. In fact, the greatest credibility asset Ms. Linville possessed was the fact that she had no apparent relationship with or knowledge of Mr. Ferguson. In other words, she did not provide the statement to help someone she knew.21 Finally, assuming, for the sake of argument, that Ms. Linville was an undesirable witness, there was no evidence showing that Ms. King or the “heavy set” woman had criminal records22 or would be undesirable witnesses.23 Therefore, any potential problems in calling Ms. Linville as a witness did not relieve Mr. Zimarowski of his duty to conduct an independent investigation of her statement.

Mr. Zimarowski attempted to show the harmlessness of his conduct during the habeas proceeding by testifying that he informed Mr. Ferguson and his family that the police had a report that implicated Mr. Coles. We find no merit to this argument. We will assume that Mr. Ferguson acquiesced in Mr. Zimarowski's strategy for dealing with the police report. It was impossible for Mr. Ferguson to appreciate the compelling nature of the police report without a thorough investigation into the matter. To the extent that Mr. Ferguson thought the report was more harmful than helpful, it was because of the erroneous way Mr. Zimarowski portrayed the report to him. It has been observed that a defendant “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Powell v. Alabama, 287 U.S. 45, 68–69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Mr. Ferguson retained Mr. Zimarowski because, despite his protestations of innocence, he did not know how to navigate the legal process to establish his innocence. Insofar as Mr. Ferguson relied upon Mr. Zimarowski to establish his innocence, Mr. Zimarowski cannot blame Mr. Ferguson for trusting his judgment and strategy.

In sum, we believe the evidence overwhelmingly supported the habeas trial court's determination that Mr. Zimarowski's performance was constitutionally deficient.24

B. Determining Whether the Result May Have Been Different.

Although we have determined that the circuit court was correct in finding Mr. Zimarowski's performance was deficient under an objective standard of reasonableness, Mr. Ferguson is not entitled to relief unless we also conclude that he was prejudiced by the deficient performance. See State ex rel. Daniel v. Legursky, 195 W. Va. 314, 325, 465 S.E.2d 416, 427 (1995) (“A finding of unprofessional conduct, however, does not end our inquiry. In order to obtain relief ․ [the defendant] must demonstrate that the complained of deficiency resulted in prejudice[.]”). That is, under the prejudice prong, Mr. Ferguson “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

During the habeas proceeding, Mr. Ferguson called Ms. Linville and Ms. King. Both women testified that, on the night that Mr. Wilkins was killed, Mr. Coles confessed to shooting a man that was later determined to be Mr. Wilkins. Ms. Linville testified to the matter as follows:

Q. So tell us what happened that night when Robbie Coles came to visit Spring King's trailer.

A. Well, we were sitting there in her trailer, and like the living room was at the end of the trailer. And the drive was here. And we heard a car outside, and we were like-and then two doors, and then it was just knocking on the door. And she got up to say, who is it, because she wasn't expecting anybody. And it was Robbie, and he said, let me in, I need to talk and I need to come in for a second.

Q. How was Robbie behaving?

A. He was real anxious and very nervous and just fidgety, you know, like taking two or three steps this way and that way and talking pretty fast and kept fiddling with his hoodie he had on, his pockets.

Q. Was Robbie alone?

A. No. He had a female with him.

Q. Did you know who the female was?

A. No.

Q. What did Robbie tell you? What did Robbie say when he came into Spring King's trailer that night?

A. Well, he said he needed a place to hide out. And I'll just kind of quote what he said.

Q. Yeah. Do you remember the terms that he used?

A. To the best of my knowledge, he was like, “Man, you-all got to give me a place to hide out. I just shot a fucking nigger up on the hill, come down from the school, and I know he's dead because I shot like three times and I hit him.” And he put his hand here, and said that after he knowed that the third bullet hit him, he said he just dropped.

Q. He put his hand on his shoulder?

A. Well, his back area, close to his neck there, up by his shoulder blade—between his shoulder blade and his, you know, neck, spine.

Ms. King gave the following version of what happened when Mr. Coles came to her home on the evening of Mr. Wilkins' murder:

Q. Tell us about the times that you seen Robbie Coles.

A. I've seen him twice. Once prior, he had spit in my face and we had a confrontation. And then the second time, he had come to my home.

Q. And he came to your home on Burroughs Road?

A. Yes. Beating on my door one evening really loud.

Q. Tell us about how Robbie Coles was acting that night that he came to your door.

A. Very obnoxious, pacing back and forth, very—very nervous, very—like he scared me.

Q. Was there anyone else with him?

A. There was a girl with him.

Q. Did you know who the girl was?

A. No.

Q. Was there anyone else with you at your home when Robbie Coles came to visit?

A. Yes, there was.

Q. And who was that?

A. That would have been my neighbor, Janie Linville.

Q. Do you recall what—how Robbie Coles was dressed?

A. He had a dark hoodie on, dark jeans and a pair of boots. He had dark clothes on.

Q. And how was he acting?

A. He was acting very—like pacing back and forth. I had asked him to leave several times and he just was pacing back and forth and acting really strange.

Q. And what comments did he make? What did he say to you?

A. He said I can't believe I just did what I did. I just shot a man down the hill. I said—and I asked him to leave my residence at that time.

Q. And did he leave?

A. Briefly, he didn't leave. Janie had left me there with him and her. And I thought maybe she was going to call the police at the time but apparently she didn't. And about four to five minutes later, they had left and Janie came back to check on me to make sure everything was okay.

In view of the testimony of Ms. Linville and Ms. King, the circuit court concluded that “had trial counsel presented evidence derived from a proper investigation of the Coles confession, there is a reasonable probability that the result of Mr. Ferguson's trial would have been different.” We agree.

Although the State presented sufficient evidence for the jury to convict Mr. Ferguson, that evidence was circumstantial evidence. There was no eyewitness identification of Mr. Ferguson. Even though Mr. Wilkins appears to have gone into shock very soon after he was shot, he was able to communicate briefly with people around him. The record indicates that Mr. Wilkins stated twice that he had been “shot,” and stated that he “didn't want to die.” During the brief moments that Mr. Wilkins spoke, he did not identify Mr. Ferguson, whom he knew, or anyone else as the shooter. There was also no evidence directly linking Mr. Ferguson to the weapon used in the killing.25

In our review of the trial record and the habeas corpus testimony of Ms. Linville and Ms. King, we believe that a jury could have reasonable doubts about the guilt of Mr. Ferguson. The State argues that differences existed in Ms. Linville's habeas testimony, the statement she gave the police, an affidavit given before her testimony, as well as differences with Ms. King's testimony. The State also argues that Ms. King's habeas testimony differed from a handwritten statement she gave and a typed affidavit that she signed. The inconsistencies noted by the State are jury credibility issues that do not undermine the most compelling consistency in the testimony of the two witnesses: Mr. Coles stated that he killed the person later identified as Mr. Wilkins.

The United States Supreme Court has stated that “[t]he benchmark for judging any claim of ineffective[ ] [assistance of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Lafler v. Cooper, ––– U.S. ––––. 132 S.Ct. 1376, 1388, 182 L.Ed.2d 398 (2012) (internal quotations and citation omitted). The compelling testimony of Ms. Linville and Ms. King which was unjustifiably kept from the jury because of Mr. Zimarowski's ineffectiveness, conclusively demonstrates that the adversarial process in this case was undermined. The best evidence Mr. Ferguson had to defend his claim of innocence at trial was suppressed through Mr. Zimarowski's constitutionally deficient performance.26



The circuit court's order granting Mr. Ferguson habeas corpus relief in the form of a new trial is affirmed.


The majority has utterly disregarded the United States Supreme Court's clearly-expressed directive in assessing allegations of failure to investigate relative to ineffective assistance of counsel; in so doing, it has laid waste to the considerable efforts and resources of the State and the jury in bringing Mr. Ferguson to justice. Moreover, under the auspices of ensuring Mr. Ferguson's right to a Constitutionally-compliant trial, it has sullied the reputation of his defense attorney who zealously and effectively represented him. The defense attorney's rationale for his trial decisions was not only reasonable, based on the information known at the time, but the evidence in contention played out precisely as he predicted in the habeas proceedings below. In addition to the majority's improper second-guessing of the reasonable strategic decisions of trial counsel, it then comes to the wildly speculative conclusion that Mr. Ferguson would have more likely than not been acquitted of first-degree murder had his defense attorney injected completely incredible witnesses into the proceeding. For these reasons, I dissent.

I. The First Prong of Strickland

Claims of ineffective assistance of counsel are governed by the objective standard of review1 set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and as adopted by this Court in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).2 The majority's finding that Mr. Zimarowski's representation was constitutionally deficient was based solely on the fact that he failed to independently investigate the statement of a witness, Mary Linville, which inculpated a third party, Robert Coles. In that regard, Strickland explicitly provides that

counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directed assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

466 U.S. at 691 (emphasis added).

In Miller, this Court cautioned that as a result of the rules and presumptions established in Strickland and its progeny, “the cases in which a defendant may prevail on the ground of ineffective assistance of counsel are few and far between one another.” 194 W.Va. at 16, 459 S.E.2d at 127. The Court explained that

[t]his result is no accident, but instead flows from deliberate policy decisions this Court and the United States Supreme Court have made mandating that “[j]udicial scrutiny of counsel's performance must be highly deferential” and prohibiting “[i]ntensive scrutiny of counsel and rigid requirements for acceptable assistance[.]” Strickland, 466 U.S. at 689–90, 104 S.Ct. at 2065–66, 80 L.Ed.2d at 694–95. In other words, we always should presume strongly that counsel's performance was reasonable and adequate. A defendant seeking to rebut this strong presumption of effectiveness bears a difficult burden because constitutionally acceptable performance is not defined narrowly and encompasses a “wide range.” The test of ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We only ask whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at the time, in fact, worked adequately.

Id. Mr. Zimarowski's testimony at the habeas hearing established that he certainly acted within the “wide range” of reasonable representation under the circumstances. The majority accords his decision to not independently investigate the alleged confession of Robert Coles absolutely none of the deference required by Miller/Strickland.

To that end, it appears that the majority conducted its analysis in a vacuum, turning a blind eye to the totality of the circumstances that Mr. Zimarowski was confronted with when preparing for trial and formulating his defense strategy. In order to properly assess whether Mr. Zimarowski's decision to not pursue an independent investigation of the alleged confession of Robert Coles was reasonable, Miller/Strickland requires the reviewing court to consider whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue. 194 W .Va. at 6–7, 459 S.E.2d at 117–18; syl. pt. 6, in part. In that regard, this Court has held:

In determining whether counsel's conduct falls within the broad range of professionally acceptable conduct, this Court will not view counsel's conduct through the lens of hindsight. Courts are to avoid the use of hindsight to elevate a possible mistake into a deficiency of constitutional proportions. Rather, under the rule of contemporary assessment, an attorney's actions must be examined according to what was known and reasonable at the time the attorney made his or her choices.

Syl. Pt. 4, State ex rel. Daniel v. Legursky 195 W.Va. 314, 465 S.E.2d 416 (1995).

A. The State's Evidence

At the time Mr. Zimarowski made his decision to not further investigate Ms. Linville's claim that Robert Coles confessed to the murder of Mr. Wilkins, he knew that the State possessed a considerable amount of evidence against Mr. Ferguson. In fact, it is fair to say that the State had overwhelming evidence that pointed to Mr. Ferguson's guilt. In order to evaluate Mr. Zimarowski's decision in the proper context, it is necessary to consider the evidence that the State possessed against Mr. Ferguson that was ultimately presented to the jury at trial.

The State's evidence showed that Mr. Ferguson began exhibiting animosity toward Mr. Wilkins more than a year before the murder occurred. Mr. Ferguson was apparently jealous of Mr. Wilkins's friendship with his girlfriend, Ebony Gibson. This resulted in the first incident between the two men during which Mr. Ferguson brandished a knife while riding in a car with Ms. Gibson driving and Mr. Wilkins in the back seat. Mr. Ferguson threatened Mr. Wilkins and advised him to stop calling Ms. Gibson. Mr. Wilkins immediately told at least four of his friends that Mr. Ferguson had pulled out a knife and threatened him. At trial, these friends relayed the incident to the jury. Both Ms. Gibson and Mr. Ferguson denied that Mr. Ferguson had pulled a knife on Mr. Wilkins when they testified at trial. However, the State impeached Ms. Gibson's testimony by calling her friend, Adrienne Batkins, as a rebuttal witness. Ms. Batkins testified that Ms. Gibson told her about the knife incident when it happened, stating that Mr. Ferguson had confronted Mr. Wilkins and pulled a knife while riding in her car.

Another incident occurred between Mr. Ferguson and the victim approximately three months before the murder. At that time, Mr. Ferguson attempted to attend a party at a fraternity, of which Mr. Wilkins was a member. When Mr. Ferguson showed up, Mr. Wilkins's fraternity brothers, who were aware of the knife incident, asked Mr. Ferguson to leave the party. As they were escorting him to the door, Mr. Ferguson elbowed one of the fraternity brothers who then punched Mr. Ferguson. Mr. Ferguson then stated, “Don't worry. I am going to get Jerry when his fraternity brothers are not here.” As Mr. Ferguson walked down the street away from the party, he again said that he would get Mr. Wilkins. Mr. Ferguson's friend, Brian Johnson, who went with him to the party and observed this altercation, testified that Mr. Ferguson was upset about the encounter and told him that he would fight Mr. Wilkins if he saw him by himself.

Sometime thereafter, Mr. Wilkins had a conversation with one of his fraternity brothers, Solomon Wright. At trial, Mr. Wright testified that Mr. Wilkins expressed concern about the possibility of an upcoming physical conflict with Mr. Ferguson. Mr. Wilkins told Mr. Wright that if anything happened to him, he (Mr. Wright) would know who did it, i.e., Mr. Ferguson.

In the days and weeks before Mr. Wilkins was murdered, Mr. Ferguson was observed sitting in his vehicle (a highly recognizable gold Lexus) in the parking lot just outside Mr. Wilkins's apartment. In addition, Mr. Wilkins had told his friends that Mr. Ferguson had been following him.

The jury learned that on the evening of the murder, around 7:00 p .m., Mr. Wilkins was accosted by the shooter as he emerged from his apartment building. Mr. Wilkins was chased across the parking lot by the shooter who was wielding a long handgun, silver in color. Mr. Wilkins eventually lost his footing and fell down beside a car sitting at a stop sign at an intersection near the apartment building. The driver of the car, Kathryn Metcalfe, watched as the shooter approached Mr. Wilkins and shot him in the back as he lay on the ground. The shooter then ran away in the direction of the West Virginia University Recreation Center.

In addition to Ms. Metcalfe, the shooter was observed by three other witnesses. All of the witnesses gave height and weight descriptions that matched Mr. Ferguson which was 6′1″ to 6′2″ in height and 180 to 210 pounds. In addition, the shooter was observed to be wearing a dark, hooded jacket (black or blue) and black pants.

The police located Mr. Ferguson at his girlfriend's residence in the hours after the shooting and obtained consent to search his vehicle and apartment. The police collected a navy, hooded jacket and a black, hooded sweatshirt from Mr. Ferguson's vehicle that were similar to the witnesses' descriptions of the shooter's attire. Forensic testing conducted by the police revealed traces of gun powder on these items of clothing.

The police also discovered that Mr. Ferguson was near the scene of the shooting shortly after it occurred. Mr. Ferguson told the police that he went to the West Virginia University Recreation Center around 7:00 p.m., and then went to visit his friend, Brian Johnson, before going to Ms. Gibson's residence for dinner. However, Brian Johnson said in his statement to the police that he had not seen Mr. Ferguson the day of the shooting. In addition, data retrieved from the entry system at the West Virginia University Recreation Center, located approximately one mile from where the shooting happened, showed that Mr. Ferguson arrived there at 7:39 p.m. that evening, not 7:00 p.m. Prior to that night, Mr. Ferguson had only been at the recreation center nine days between August 2001 and February 2, 2002. While at the recreation center, Mr. Ferguson was observed by witnesses as wearing clothing matching the description of the attire worn by the shooter including black sweat pants, which he told the police he had not been wearing and did not own. Mr. Ferguson told the police that he swam at the recreation center and showered at Ms. Gibson's apartment that evening before they arrived to question him.

Mr. Ferguson accompanied the investigating detectives to the police station that evening to answer questions. Mr. Ferguson exhibited a calm demeanor until he was advised that the police intended to perform gun shot residue sampling on his person and clothing. At that point, he became visibly agitated and began to sweat and cough. Prior to the test, he was observed by detectives vigorously wiping his hands on his jacket when he thought they were not looking at him.3 On the way to the police station, Mr. Ferguson had told the police that he only owned one firearm, a Desert Eagle, and that he had not fired any firearm in more than a year.4 The next day, however, he called to report that a 9 mm handgun that he had only purchased nine days earlier had been stolen from his apartment. He said he had forgotten about the gun when he spoke to the detectives the previous evening and could not remember when he last saw the gun, nor did he know how it was stolen because there were no signs of forced entry into his apartment.

At trial, the State's firearms expert testified that the bullet fragments taken from the victim's body came from a .44 caliber bullet. In addition, Mr. Ferguson's friend, Brian Johnson, testified that he had seen a large revolver with a stainless steel finish in Mr. Ferguson's apartment within two weeks of Mr. Wilkins's murder. Mr. Ferguson had told Mr. Johnson that the gun was a “magnum” and described it as a “powerful” gun. Mr. Johnson stated that this was not the Desert Eagle firearm with which he was familiar because he had been with Mr. Ferguson when he purchased the Desert Eagle. Mr. Johnson further testified that after the shooting, Mr. Ferguson told him that the murder weapon was “long gone, that police had no eyewitnesses to identify the perpetrator and that there was no gunshot residue.” As discussed above, the police actually found the presence of gunshot residue on the jacket and sweatshirt retrieved from Mr. Ferguson on the night of the murder. The police also found a .44 magnum casing lying loose at the bottom of a dumpster located outside Mr. Ferguson's residence. The dumpster also contained a bag of trash that had belonged to Mr. Ferguson.

B. The Alleged Confession of Robert Coles

With these facts and evidence in mind, the police report given to Mr. Zimarowski discussing Ms. Linville's statement regarding the alleged confession of Robert Coles must now be considered. The report indicated that in a statement to the police, ten months after the murder, Ms. Linville said that two days after Mr. Wilkins was murdered, while she was at a trailer belonging to a woman named Spring King, Robert Coles showed up and said, “Know that Jerry kid in the paper that got shot, I shot him.” According to Ms. Linville, Robert Coles said that the police did not know what they were talking about because he shot him in the chest and not the back and that he had shot Jerry Wilkins because he did not like the way he looked at him. The police report further indicated that Ms. Linville gave her statement in a drug debriefing after she had been arrested in a federal drug sweep. Finally, the report stated that the police had interviewed Mr. Coles and not only had he denied making the confession, but that he had passed a polygraph test.

C. Mr. Zimarowski's Defense Strategy

In order to determine whether or not there was a reasonable basis for Mr. Zimarowski's decision not to conduct any further investigation into the alleged confession of Robert Coles as reported by Ms. Linville, it is necessary to consider whether or not such evidence would have been consistent with Mr. Zimarowski's theory of the case and whether or not such evidence could have been more harmful to Mr. Ferguson's defense than helpful. During the habeas hearing, Mr. Zimarowski testified that he viewed Ms. Linville's statement as not credible. He first said that the fact that the statement was made ten weeks after the purported confession during a drug debriefing was a “massive red flag” as persons in drug debriefings are generally trying to put themselves in a better position In other words, individuals often seek to gain some benefit during a drug debriefing by offering to assist the police in solving another crime. Mr. Zimarowski stated:

[I]n my experience of sitting through hundreds of drug debriefings, petitioners, witnesses will exaggerate, embellish make up stuff simply to put themselves in a more favorable position. Their credibility in my opinion at a drug debriefing is very close to 10 percent, 20 percent, maybe.

Mr. Zimarowski further explained that the veracity of Ms. Linville's statement was also questionable given the fact that the details of the purported confession that she related were in no way consistent with the evidence the State was going to present at trial. In that regard, Mr. Zimarowski pointed out the State's evidence showed that the victim was actually shot in the back and not in the chest as allegedly claimed by Robert Coles, according to Ms. Linville. Further, the eyewitnesses at the scene of the crime reported that Mr. Wilkins was chased across the parking lot by the perpetrator and then shot after he fell down. This evidence suggests a premeditated effort to track down the victim and kill him. Yet, according to Ms. Linville, Robert Coles said that he shot the victim because he did not like the way he looked at him, which suggested an impulsive and random shooting.5

Also, critically important to Mr. Zimarowski's decision was the fact that the police had interviewed Robert Coles and he denied making the confession to Ms. Linville. In that regard, Mr. Zimarowski testified:

If I assume that Robbie Coles is going to come in and testify that he never made the statement and that he was never involved in the Wilkins shooting-okay, that's going to come in. Now what could I use that for? Well, there's a 50/50 probability in my mind that should he take the stand, he is going to say through any type of questioning at all that he passed a polygraph, which causes me to lose my jury because it will be a mistrial granted.

Plus Robbie Coles, in my opinion, is not credible [as the shooter] since there is no connection, there's no corroboration with this statement. So a jury is going to view Robbie Coles possibly as not very credible or not credible. Now this viewing him as not credible is going to reflect upon the direct testimony of Mr. Ferguson. I would much rather have in a trial an unknown witness, an unknown culprit out there than having a known culprit․ Juries in my experience will grab onto an unknown or they'll grab onto something that is not done rather than something that is done or something that is in front of them. So having Robbie Coles testify that he denied doing the shooting served the defense not one whit.6

(Footnote added).

In sum, Mr. Zimarowski explained that he chose not to pursue the alleged confession of Robert Coles and declined to call Ms. Linville, Ms. King and Mr. Coles as witnesses because hanging his hat upon such questionable testimony would have harmed Mr. Ferguson's credibility and because it would have appeared that he was grasping at straws to create an alternative suspect. With regard to Ms. Linville and Ms. King, he further explained:

Well, first off, they're not in my opinion credible. They're subject to shooting fish in a barrel as far as cross-examination is concerned. You have the late disclosure of ten weeks. You have their statements which indicated that it occurred several days after the shooting because there's reference made to a police—a newspaper article and a police report. So they're not credible. It looked like if I put the girls on the stand that I'm basically searching, I'm basically creating a false witness, a false suspect. I would much rather have that suspect not present in the courtroom, not identified. Let the jury extrapolate from that if they desire. That's why I strategically chose to ․ throw Coles out there but not have him subject to cross-examination.

Mr. Zimarowski also indicated that because his trial strategy included putting Mr. Ferguson on the stand to testify and deny that he murdered Mr. Wilkins, he wanted to eliminate any information or evidence which would have been detrimental to the credibility of the defense. In that regard, he stated:

You want to keep that out and then keep the focus since—in my opinion, Brian [Mr. Ferguson] made an excellent witness. He was well spoken. He's intelligent. Presented well. He looked well.

Mr. Zimarowski concluded that if he had called Robert Coles as a witness and he had testified that he had no involvement in Mr. Wilkins's shooting, then “the jury could have evaluated it, and if they found the evidence against Robert Coles wanting, and they would have in my opinion because it wasn't credible, then they would have said, well if he didn't do it, then Brian Ferguson must have.” While credible evidence that might buttress the defense could certainly be said to require independent investigation, there is little value in pursuing fanciful stories that can only serve to weaken the credibility of counsel and, therefore, the defendant, at trial. This is particularly true where, as here, counsel intended to place Mr. Ferguson on the witness stand to tell his own story. Given these circumstances, Mr. Ferguson's counsel could not afford to offer any evidence that could not withstand strict scrutiny by the jury.

Moreover, nothing in Miller/Strickland requires defense counsel to be an active participant in a wild goose chase, lest he be accused of ineffective assistance. In stark contrast to the cases relied on by the majority, Mr. Zimarowski did not fail to investigate direct, substantive evidence of his client's alleged guilt such as forensic evidence or eyewitnesses. Rather, he refused to waste time and resources attempting to prove the guilt of a third party. Mr. Zimarowski did not blindly accept the investigation and documentation of the police as presumptively true; rather, he recognized that, true or not, further investigation into the Robert Coles confession was not likely to prove it true or false, nor add anything to his client's defense. That is to say, assume that Mr. Zimarowski had interviewed Mary Linville, Spring King, and Robert Coles. Assume further that they adhered strictly to what they told police; what value is this wholly incredible “confession and denial” to his defense? Assume, on the other hand, that the witnesses tried to embellish or alter their statements such as to be more in keeping with the physical evidence just as they did at the habeas proceeding.7 Now, the witnesses are subject to impeachment both on the internal inconsistency of their statements as well as inconsistency with the physical evidence of the crime. Ultimately, regardless of what further investigation would have revealed, no amount of rehabilitation would save these witnesses from their inherent incredibility. Their lack of credibility and, more importantly, resultant damage to the party “vouching” for them by calling them as witnesses, would have been devastating to an otherwise well-crafted defense.

In light of all the above, it is clear that Mr. Zimarowski made a reasonable decision that Mr. Ferguson's defense would be served best by allowing Robert Coles to be simply mentioned during the course of trial as another suspect who was investigated by the police rather than calling him, Ms. Linville or Ms. King to testify. While directing the jury's attention to an alternative suspect can be good trial strategy, staking the credibility of the defense upon a non-existent confession and testimony that is easily subject to impeachment is not. Consequently, it was unnecessary for Mr. Zimarowski to waste time or resources further investigating Ms. Linville's statement and Robert Coles's purported confession. In short, not only was this strategy reasonable, it was proven absolutely correct during the habeas proceedings.

II. The Second Prong of Strickland

Finally, proof of the second prong of Strickland is markedly absent. There is simply no reasonable probability that but for Mr. Zimarowski's failure to waste time chasing the ever-changing stories of Mary Linville, the outcome of Mr. Ferguson's trial would have been different. Relying solely upon the testimony of Ms. Linville and Ms. King from the habeas hearing, the majority summarily concludes that the result would have been different “had trial counsel presented evidence derived from a proper investigation of the Coles confession.” This conclusion necessarily requires the majority to ignore the compelling evidence presented against Mr. Ferguson at trial outlined above. More importantly, it also illustrates that the majority's reasoning is not only inadequate, but a moving target: is the majority critical of the mere failure to investigate the Robert Coles confession or the failure to introduce the evidence of the purported confession, in whatever state of investigation, at trial? Is defense counsel, upon any retrial of Mr. Ferguson, now obligated to introduce this irrefutably damaging testimony lest they, too, be found to be ineffective?

Regardless, Strickland provides that “ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” 466 U.S. at 693 (emphasis added). As the Supreme Court explained:

Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

Id. (emphasis added). The majority weakly concludes that “a jury could have reasonable doubts about the guilt of Mr. Ferguson.” This conclusion is far from the affirmative showing of prejudice required by Strickland and somewhat startling in its lack of conviction.

That the majority would have Mr. Zimarowski engage in the fool's errand of conducting his own investigation into the alleged confession of Robert Coles is inexplicable enough. However, to suggest that calling almost comically incredible witnesses in support of the alleged Robert Coles confession would have more likely than not resulted in an acquittal is outright shocking. As ostensible support for its contention that the jury may have done something other than utterly disregard her testimony, the majority takes on the yeoman's task of trying to bolster the credibility of Mary Linville. In its analysis, the majority has the temerity to suggest that Mary Linville was likely being truthful by inculpating Robert Coles because she was merely trying to help herself and did not know Mr. Ferguson. The idea that a drug-addicted criminal in the throes of a federal drug debriefing, who is attempting to gain leniency by acting as an informant to law enforcement, would certainly never lie to those authorities is naive, to put it mildly. Moreover, the majority's position that since Mary Linville did not know Mr. Ferguson, she is more credible, is likewise myopic. While she may not know Mr. Ferguson, it is clear she knew Robert Coles and fingering him in an active murder investigation could easily have been her goal regardless of whether it also helped Mr. Ferguson. It is also reasonable to conclude that Mary Linville's friend, Spring King, would also have motive to inculpate Robert Coles particularly since her only other interaction with him was when he spat in her face.

Far from being ineffective, Mr. Zimarowski did everything possible within the constraints of the law to zealously represent Mr. Ferguson. The record reflects that Mr. Zimarowski persuaded the trial court to exclude what could have been damning evidence against Mr. Ferguson including his prior criminal history involving theft and possession of a firearm, fraudulent use of a credit card and, most significantly, an out-of-court boastful statement that he had chased and shot someone in Washington, D.C. Mr. Zimarowski's decision not to follow up or further investigate the alleged confession of Robert Coles was clearly reasonable and certainly does not represent the ineffective assistance of counsel contemplated under the highly deferential standard for acceptable assistance of counsel under Strickland. Therefore, for the reasons set forth above, I would reverse the circuit court's order granting the writ of habeas corpus. Accordingly, I respectfully dissent from the majority's decision in this case. I am authorized to state that Justice Workman joins in this dissent.


1.  The State set out five assignments of error that will be addressed in the framework of the two issues.

2.  Mr. Wilkins was a graduate student at West Virginia University (“WVU”).

3.  The witnesses described the assailant as an African–American male, 6′ to 6′2″ tall, weighing 180 to 200 lbs., and wearing a dark hooded jacket or sweatshirt and black pants.

4.  At that time, Mr. Ferguson was an undergraduate student at WVU.

5.  The grudge was alleged to have centered around the victim's interest in Mr. Ferguson's girlfriend.

6.  A witness to the murder described the assailant's weapon as a long handgun that was silver in color.

7.  The bullet that killed the victim was a .44 caliber magnum bullet. The State also presented evidence that a .44 caliber magnum casing was found in the trash dumpster where Mr. Ferguson placed his garbage.

8.  The State presented evidence at the trial that gunshot residue was found on clothing retrieved from Mr. Ferguson on the night of the murder.

9.  Mr. Ferguson had informed the police that he was with Mr. Johnson at some point before the murder.

10.  This statement was made after Mr. Ferguson was thrown out of a party that was given by the victim's fraternity.

11.  This evidence came in the form of testimony that Mr. Ferguson was seen parked in the area where the victim lived.

12.  The State called a rebuttal witness who testified that Ms. Gibson had told her that Mr. Ferguson pulled a knife on the victim.

13.  The State presented evidence that the recreation center's data entry showed that Mr. Ferguson entered the center at 7:39 p.m., and that the center was less than a mile from where the shooting took place.

14.  Mr. Zimarowski testified that he had practiced law for approximately thirty years and that he had defended approximately twenty-one first degree murder cases. Some of those representations resulted in acquittals.

15.  “Polygraph test results are not admissible in evidence in a criminal trial in this State.” Syl. pt. 2, State v. Frazier, 162 W. Va. 602, 252 S.E.2d 39 (1979).

16.  The State also called Raymond H. Yackel as an expert. However, the circuit court limited his testimony to issues involving the polygraph test.

17.  Mr. Ferguson had an independent polygraph examiner, Barry Colvert, review the raw data from Mr. Coles' polygraph test. Mr. Colvert testified during the habeas proceeding that he would not have rated Mr. Coles as having passed the polygraph test.

18.  The opinion described Mary Jo and Billy Payne's testimony as follows:At the postconviction hearing, Mary Jo Payne testified that following Origer's arrest she saw Mike Mallory and Keven Schwebke playing pool at a bar located near Iowa Falls. She heard Schwebke accuse Mallory of the murders. According to Mary Jo Payne, Schwebke said: “He thought it was pretty funny to have a white boy take the rap for what he did and get away with it scot free.” When Mary Jo Payne asked Mallory whether the allegations were true, Mallory only said “What's it to you?”Billy Payne, Mary Jo Payne's brother, also testified at the postconviction hearing. He testified that, on February 9, 1985, Mallory, looking anxious and nervous, told him he was going to Forest City “to take care of business.” Billy Payne also testified Mallory had told him several days later he had “wasted these people up in Forest City,” but he believed Mallory was only bragging.Origer, 495 N.W.2d at 137.

19.  The case was tried several times. The defendant's last death sentence was vacated, and he was sentenced to life imprisonment because he was determined to be mentally retarded.

20.  The defendant's trial was bifurcated. The defendant elected to have a bench trial for the guilt phase and a jury trial for the sentencing phase.

21.  There is nothing in the record to show that Mr. Ferguson and Ms. Linville knew each other.

22.  During the habeas proceeding, it became apparent that Ms. King was using drugs during the period of time that the murder occurred.

23.  It should also be noted that if Mr. Zimarowski had conducted a timely investigation into Ms. Linville's statement, he may have learned the identity of other people that knew of Mr. Coles' confession or alleged involvement with the murder of Mr. Wilkins.

24.  We wish to point out that the Court is aware that Mr. Zimarowski is an excellent criminal defense attorney and has a reputation of being one of the state's leading criminal attorneys. Unfortunately in this case Mr. Zimarowski's conduct missed the mark.

25.  The weapon was never discovered.

26.  We summarily reject the State's assignment of error regarding Mr. Yackel. As we noted earlier in this opinion, the State also called Mr. Yackel as an expert. However, the circuit court limited his testimony to issues involving Mr. Coles' polygraph test. In this appeal, the State assigned error to the circuit court's limitation of Mr. Yackel's testimony. The State contends that Mr. Yackel also should have been allowed to render an opinion that Mr. Zimarowski did not provide ineffective assistance of counsel. The circuit court found that such testimony was repetitive of the testimony of Mr. Benninger. We do not find that the circuit court abused its discretion in limiting Mr. Yackel's testimony. See Syl. pt. 1, State v. Kaufman, 227 W. Va. 537, 711 S.E.2d 607 (2011) (“Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.” (internal quotations and citations omitted)).

1.  Syllabus point six of Miller holds:In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.194 W.Va. at 6–7, 459 S.E.2d at 117–18.

2.  “In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Miller, 194 W.Va. at 6, 459 S.E.2d at 117, syl. pt. 5.

3.  No gunshot residue was detected on Mr. Ferguson's hands and face. At trial, a member of the trace evidence section of the State Police Crime Lab testified that gunshot residue can be removed by rubbing it away, brushing it away, swimming, showering, or simply with time and activity.

4.  Although Mr. Ferguson told the police detectives that he had not fired a gun in more than a year, at trial, two of Mr. Ferguson's friends from the Washington, D.C. area testified that in late January or early February 2002, Mr. Ferguson returned home for a visit and showed them two, brand new guns and proceeded to test fire both of them.

5.  There was no evidence that Mr. Wilkins and Mr. Coles had ever met. While Mr. Wilkins lived close to the campus of West Virginia University, Mr. Coles resided outside of Morgantown.

6.  Had Robert Coles testified at trial, the jury surely would have also noticed that he did not match the description of the suspect given by the eyewitnesses to the murder. They described the shooter as being 6′1″ to 6′7″ tall and weighting 180 to 210 pounds. At that time, Robert Coles was 5′9″ and weighed 130 pounds.

7.  In her statement to police, Mary Linville stated that Robert Coles drunkenly confessed two days after the murder, referencing newspaper reports regarding the shooting and stating that the police did not know “what they were talking about” because he shot him in the chest, not the back. During the course of the habeas proceeding, Mary Linville gave an elaborate tale of Robert Coles arriving at Spring King's trailer anxiously begging for a “place to hide out” because he had “just shot a f*cking n*gger” down the hill. In addition, Spring King's testimony regarding virtually every detail of this encounter was completely contradictory to Mary Linville's account, except for the forced theme that Coles said he had just shot someone.

DAVIS, Justice:

Justices WORKMAN and LOUGHRY dissent and reserve the right to file dissenting opinions.