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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2005 Term __________ No. 32661 __________

FILED November 30, 2005
released at 10:00 a.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL. MIGUEL QUINONES, Petitioner Below, Appellant v. JAMES RUBENSTEIN, COMMISSIONER, DEPARTMENT OF CORRECTIONS, Respondent Below, Appellee __________________________________________________ Appeal from the Circuit Court of Fayette County The Honorable Charles M. Vickers, Judge Civil Action No. 02-C-03(V) AFFIRMED __________________________________________________ Submitted: November 2, 2005 Filed: November 30, 2005 Jack L. Hickock Public Defender Services Charleston, West Virginia Attorney for the Appellant Carl L. Harris Prosecuting Attorney, Fayette County Fayetteville, West Virginia Attorney for the Appellee

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT

1. "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." Syl. Pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975).

2. "A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed." Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979).

3. "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. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

4. "In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or

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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." Syl. Pt. 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

5. "Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of [statutory] law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair." Syl. Pt. 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

6. "A trial court's failure to remove a biased juror from a jury panel does not violate a defendant's right to a trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 14 of Article III of the West Virginia Constitution. In order to succeed in a claim that his or her

constitutional right to an impartial jury was violated, a defendant must affirmatively show prejudice." Syl. Pt. 7, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).

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Per Curiam:

This matter is before us as an appeal of the order entered on August 6, 2004, by the Circuit Court of Fayette County denying Miguel Quinones (hereinafter referred to as "Appellant") habeas corpus relief. This order was entered after an omnibus hearing at which Appellant challenged his second degree murder conviction. Appellant maintains that the lower court erred in refusing to grant relief on various grounds, including ineffective assistance of counsel and failure to strike jurors for cause. Based upon the briefs and arguments of counsel in this proceeding, a review of the record certified to this Court and the relevant legal authority, we affirm the decision of the lower court.

I. Factual and Procedural Background On August 11, 2000, Appellant was convicted of second degree murder for the June 19, 1995, killing of a man which occurred as a result of a dispute involving cocaine.1 Appellant, Miguel Gonzalez and Damien Bagut were present during the murder, and Mr. Bagut testified at Appellant's trial that he inflicted the fatal gunshots into the victim. Appellant was sentenced to a determinate twenty-five year sentence, whereas Mr. Bagut

Appellant was a juvenile at the time of the murder but was transferred to adult status on February 6, 1997, pursuant to the provisions of West Virginia Code

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