Daniel Amsler v. Jonathan Frame, Superintendent, Mt. Olive Correctional Facility and Jail

                                                                                       FILED
                                                                                 September 16, 2025
                                                                                     C. CASEY FORBES, CLERK
                                                                                    SUPREME COURT OF APPEALS
                              STATE OF WEST VIRGINIA                                    OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
Daniel Amsler,
Petitioner Below, Petitioner

v.) No. 23-678 (Harrison County No. CC-17-2020-C-276)

Jonathan Frame, Superintendent,
Mt. Olive Correctional Facility and Jail,
Respondent Below, Respondent


                               MEMORANDUM DECISION

        The petitioner, Daniel Amsler, appeals the October 23, 2023, order of the Circuit Court of
Harrison County denying his amended petition for a writ of habeas corpus.1 The petitioner argues
that the circuit court erred in failing to find that (1) the investigating officer’s testimony at trial,
that he asked the petitioner whether he participated in a robbery because one of the petitioner’s
codefendants said they planned to rob the victim, was inadmissible as a violation of the
Confrontation Clause and (2) the petitioner received ineffective assistance of counsel because trial
counsel should have objected to the officer’s testimony on Confrontation Clause grounds, instead
of hearsay grounds, and, further, counsel should have raised the Confrontation Clause issue as
plain error in the petitioner’s criminal appeal. 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).

        In State v. Amsler, No. 19-0908, 2020 WL 201195 (W. Va. Jan. 13, 2020) (memorandum
decision), this Court affirmed the circuit court’s September 19, 2018, order sentencing the
petitioner to a life term of incarceration for first-degree murder and a consecutive term of one to
five years of incarceration for conspiracy to commit first-degree robbery. Id. at *1. In affirming
the petitioner’s convictions, this Court rejected, inter alia, the petitioner’s argument that the circuit
court should have granted his motion for a new trial because it erroneously allowed the State to
present the investigating officer’s testimony regarding the codefendant’s statement that they
planned to rob the victim. Id. at *3-4. This Court found that the testimony about the codefendant’s
statement was not offered for the truth of the matter asserted. Id. at *4. Instead, the Court

        1 The petitioner appears by counsel Jason T. Gain, and the respondent appears by Attorney

General John B. McCuskey and Assistant Solicitor General Spencer J. Davenport. Because a new
Attorney General took office while this appeal was pending, his name has been substituted as
counsel. The current superintendent has been substituted as the respondent. See W. Va. R. App. P.
41(c).


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determined that “Detective Walsh simply explained the course and direction of the investigation,”
which was admissible testimony because the State offered it “for the mere purpose of explaining
previous conduct.” Id. (quoting State v. Phelps, 197 W. Va. 713, 721-22, 478 S.E.2d 563, 571-72
(1996)).2

       In November 2020, the petitioner filed a petition for a writ of habeas corpus. The circuit
court appointed habeas counsel, who filed an amended petition in October 2022. On March 3,
2023, the circuit court held an omnibus habeas corpus hearing, at which the petitioner and his trial
counsel testified. By order entered on November 30, 2023, the circuit court found that the petitioner
waived every ground on the Losh checklist except two:3 (1) constitutional error in evidentiary

       2
           Like the hearsay rule, the Confrontation Clause does not prohibit the admission of
statements that are not offered for the truth of the matter asserted. See State v. Waldron, 228 W.
Va. 577, 581, 723 S.E.2d 402, 406 (2012) (“It is important to emphasize again that, aside from the
testimonial versus nontestimonial issue, a crucial aspect of Crawford[ v. Washington, 541 U.S. 36
(2004)] is that it only covers hearsay, i.e., out-of-court statements offered in evidence to prove the
truth of the matter asserted.” (internal quotations and citations omitted)); Crawford, 541 U.S. at 59
n.9 (“The [Confrontation] Clause also does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.” (citing Tennessee v. Street, 471 U.S. 409,
414 (1985))).
       3
          The checklist of grounds typically used in habeas corpus proceedings, usually referred to
as the Losh checklist, originates from our decision in Losh v. McKenzie, 166 W. Va. 762, 277
S.E.2d 606 (1981), wherein we set forth the most common grounds for habeas relief. See id. at
768-70, 277 S.E.2d at 611-12. The circuit court found that the petitioner waived the following
habeas claims: (1) trial court lacked jurisdiction; (2) statute under which conviction obtained was
unconstitutional; (3) indictment shows on its face that no offense was committed; (4) prejudicial
pretrial publicity; (5) denial of right to a speedy trial; (6) involuntary guilty plea; (7) mental
competency at the time of the crime; (8) mental competency at the time of trial; (9) incapacity to
stand trial due to drug use; (10) language barrier to understanding the proceedings; (11) denial of
counsel; (12) unintelligent waiver of counsel; (13) failure of counsel to take an appeal; (14)
consecutive sentences for the same transaction; (15) coerced confessions; (16) suppression of
helpful evidence by prosecutor; (17) State’s knowing use of perjured testimony; (18) falsification
of transcript by prosecutor; (19) unfulfilled plea bargains; (20) erroneous information; (21) double
jeopardy; (22) irregularities in arrest; (23) excessiveness or denial of bail; (24) lack of a
preliminary hearing; (25) illegal detention prior to arraignment; (26) irregularities or errors in
arraignment; (27) composition of the grand jury or its procedures; (28) failure to provide copy of
indictment to defendant; (29) defects in indictment; (30) improper venue; (31) pre-indictment
delay; (32) denial of continuance; (33) refusal to subpoena witnesses; (34) prejudicial joinder of
defendants; (35) lack of a full public hearing; (36) non-disclosure of grand jury minutes; (37)
refusal to turn over witness notes; (38) incompetence at time of the offense as opposed to time of
trial; (39) use of informers to convict; (40) jury instructions; (41) prejudicial statements by trial
judge; (42) prejudicial statements by prosecutor; (43) sufficiency of evidence; (44) acquittal of a
codefendant on the same charge; (45) defendant’s absence from part of proceedings; (46) question
of actual guilt upon an acceptable guilty plea; (47) severer sentence than expected; (48) excessive
sentence; (49) mistaken advice of counsel as to parole or probation eligibility; and (50) amount of
time served on sentence (credit for time served).
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rulings and (2) ineffective assistance of counsel. The circuit court determined that the two habeas
claims raised by the petitioner lacked merit based upon this Court’s prior finding that the State
offered the investigating officer’s testimony about the codefendant’s statement for a purpose other
than to prove the truth of the matter asserted. Amsler, 2020 WL 201195, at *4. Therefore, the
circuit court denied the amended petition for a writ of habeas corpus. The petitioner now appeals.
We review the circuit court’s 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, in part, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d
771 (2006).

        The circuit court thoroughly considered and addressed each of the petitioner’s claims.
Upon our review, we conclude that the petitioner has not satisfied his burden of demonstrating
error in the court’s rulings, and we find none. See Syl. Pt. 2, Dement v. Pszczolkowski, 245 W. Va.
564, 859 S.E.2d 732 (2021) (“On an appeal to this Court the appellant bears the burden of showing
that there was error in the proceedings below resulting in the judgment of which he complains, all
presumptions being in favor of the correctness of the proceedings and judgment in and of the trial
court.” (quoting Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973))).
Accordingly, we find that the circuit court did not abuse its discretion in denying habeas relief.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: September 16, 2025


CONCURRED IN BY:

Chief Justice William R. Wooton
Justice C. Haley Bunn
Justice Charles S. Trump IV
Justice Thomas H. Ewing
Senior Status Justice John A. Hutchison




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