Requiring a Specific Proffer of Foregone Testimony to Prove Prejudice in Ineffective Assistance Claims: Commentary on Morgan C. Vandergriff v. Shelby Searls

I. Introduction

This memorandum decision of the Supreme Court of Appeals of West Virginia in Morgan C. Vandergriff v. Shelby Searls, Superintendent, Huttonsville Correctional Center and Jail (No. 24-202, Nov. 25, 2025) addresses a post-conviction habeas corpus challenge based on alleged ineffective assistance of trial counsel. The petitioner, previously convicted of second-degree murder after being indicted for first-degree murder, argued that his trial attorneys failed to adequately advise him about the possibility of conviction on lesser-included offenses and that this alleged failure affected his decision not to testify.

The Court, affirming the Circuit Court of Putnam County’s denial of habeas relief, does not announce a new doctrinal rule in a formal syllabus point (as this is a memorandum decision under Rule 21(c)). Nonetheless, it meaningfully reinforces and applies several important principles:

The demanding nature of the Strickland/Miller prejudice requirement in ineffective assistance of counsel (IAC) claims, especially where the alleged error concerns the defendant’s choice whether to testify;
The necessity that a habeas petitioner who claims he would have testified but for counsel’s advice must concretely state what his testimony would have been and how it would likely have altered the outcome;
The deference appellate courts give to a circuit court’s credibility determinations when counsel’s testimony conflicts with the petitioner’s;
The settled expectation that lesser-included offense instructions will be given when supported by the evidence under West Virginia law.

This commentary analyzes the decision, situating it within the larger framework of West Virginia criminal procedure and habeas corpus jurisprudence, and clarifies its implications for defense counsel, habeas petitioners, and trial courts.

II. Factual and Procedural Background

A. Underlying Criminal Case

In May 2018, the petitioner, Morgan C. Vandergriff, struck the victim with his vehicle, causing the victim’s death. A grand jury indicted him in March 2019 for first-degree murder. At trial in August 2019, a jury convicted him of second-degree murder as a lesser-included offense of first-degree murder, and the circuit court sentenced him to forty years of incarceration (the statutory maximum for second-degree murder).

On direct appeal, in State v. Vandergrift, No. 19-0999, 2020 WL 7231112 (W. Va. Dec. 7, 2020) (memorandum decision), the Supreme Court affirmed the conviction. In doing so, it expressly held that:

“the jury clearly believed beyond a reasonable doubt that petitioner killed the victim unlawfully, willfully, intentionally, and with malice”; and
the circuit court properly instructed the jury on lesser-included offenses (second-degree murder and voluntary manslaughter), and under State v. Allen it would have been error not to do so when the evidence supported those offenses.

On direct appeal, the petitioner had argued that the State’s request for lesser-included instructions after the close of evidence amounted to a mid-trial “reindictment” that deprived him of notice and a meaningful opportunity to be heard. The Court rejected this, holding that:

the State complied with Rule 30 of the West Virginia Rules of Criminal Procedure by submitting proposed instructions at the close of all evidence; and
Rule 31(c) allows a defendant to be found guilty of a necessarily included offense, so the possibility of a lesser-included verdict was inherent in the original charge.

Consequently, the conviction and 40-year sentence were affirmed.

B. Habeas Corpus Proceedings in the Circuit Court

In March 2020, the petitioner filed a petition for a writ of habeas corpus in the Circuit Court of Putnam County. The court appointed habeas counsel, who filed an amended petition in July 2021. An evidentiary hearing was held in December 2022.

The core habeas claim was ineffective assistance of trial counsel. Specifically, the petitioner asserted that:

Trial counsel failed to adequately inform him that the jury could convict him of lesser-included offenses of first-degree murder (such as second-degree murder); and
Because he allegedly believed the case was “all or nothing” on first-degree murder, he decided not to testify. Had he known that lesser-included offenses would be considered, he claimed he might have chosen to testify.

At the hearing:

Both trial attorneys testified and described their advice to the petitioner regarding his right to testify and the potential for lesser-included offenses.
The petitioner introduced an excerpt from the criminal trial transcript in which he personally confirmed to the trial court that he was rejecting the State’s plea offer: a plea to second-degree murder with the State to stand silent on sentencing.
Trial counsel represented to the trial court during that colloquy that they had explained to the petitioner the difference between first-degree and second-degree murder.

The petitioner also raised, in the circuit court, two additional habeas theories:

A “cumulative error” claim, framed as a combination of alleged deficiencies in trial counsel’s performance; and
A claim that he received a “severer sentence than expected.”

However, on appeal he did not pursue the sentencing-expectation ground, and—despite labelling one argument “cumulative error”—he effectively advanced only variations of a single ineffective assistance theory. Furthermore, by initialing and signing the standard Losh checklist, he waived all other potential habeas grounds not specifically raised.

The circuit court rejected his claims, made explicit credibility findings adverse to the petitioner, and denied habeas relief by order entered March 1, 2024.

C. Appeal to the Supreme Court of Appeals of West Virginia

The petitioner appealed. He again argued that his trial counsel were constitutionally ineffective, primarily for:

alleged failure adequately to advise him on the risk of conviction for lesser-included offenses, and
alleged failure properly to advise him on whether to testify.

The respondent, the superintendent of the correctional facility (substituted under Rule 41(c) of the Rules of Appellate Procedure), opposed the appeal. The Court, applying Rule 21(c), determined that oral argument was unnecessary and resolved the case by memorandum decision, affirming the circuit court.

III. Summary of the Opinion

The Supreme Court’s memorandum decision does the following:

Standard of Review. It reiterates the applicable standards: abuse of discretion for the ultimate habeas disposition, clearly erroneous for factual findings, and de novo for legal questions, citing Mathena v. Haines.
Burden on the Petitioner. It emphasizes that the appellant in a habeas appeal bears the burden of showing error and prejudice, with all presumptions favoring the correctness of the lower court’s judgment, citing Dement v. Pszczolkowski and Perdue v. Coiner.
Credibility Determinations. It notes that the circuit court explicitly found the petitioner’s testimony not credible to the extent it conflicted with his trial counsel’s testimony, and that such credibility determinations are ordinarily upheld, citing Daniel v. Legursky and State v. Guthrie.
Ineffective Assistance Framework. It applies the two-prong test of Strickland v. Washington, as adopted in State v. Miller:
- (1) deficient performance under an objective standard of reasonableness; and
- (2) a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.
Failure of Proof on Prejudice. The Court underscores that, although the petitioner testified at his habeas hearing that he might have testified at trial had he known the jury would consider lesser-included offenses, he:
- offered no evidence of what his testimony would have been; and therefore
- offered no evidence of how such testimony might have mitigated the evidence against him or changed the outcome.
As a result, he failed to satisfy the second (prejudice) prong of the Strickland/Miller test.
Lesser-Included Offense Context. The decision recalls the prior direct-appeal ruling that:
- the State’s request for lesser-included offense instructions complied with Rule 30;
- under Rule 31(c) and Allen, the jury could lawfully consider and convict on second-degree murder; and
- it would have been error not to give the lesser-included instructions when the evidence supported them.
Disposition. Concluding that the petitioner failed to demonstrate error or prejudice, and that the circuit court did not abuse its discretion, the Supreme Court affirmed the denial of habeas relief.

IV. Detailed Analysis

A. Precedents and Authorities Cited

1. State v. Vandergrift (2020) – Direct Appeal

The prior memorandum decision in State v. Vandergrift, addressing the direct criminal appeal, is pivotal context. In that decision, the Court:

Upheld the sufficiency of the evidence for the second-degree murder conviction, noting that the jury “clearly believed beyond a reasonable doubt” that the petitioner killed the victim “unlawfully, willfully, intentionally, and with malice.” This establishes that the evidence of guilt was strong—important when later assessing whether any postulated testimony could reasonably have altered the outcome.
Rejected the argument that adding lesser-included offense instructions after the close of evidence was a due process violation. The Court concluded that:
- Rule 30 was followed (proposed instructions at the close of evidence are permissible), and
- Rule 31(c) expressly permits a conviction on a necessarily included offense.
Applied State v. Allen to hold that, because the evidence supported second-degree murder and voluntary manslaughter, it would have been error to refuse such instructions once requested.

Thus, well before the habeas proceedings, the Court had already found:

The legality and propriety of the lesser-included offense instructions;
The sufficiency and apparent strength of the evidence; and
No violation of notice or opportunity to be heard with respect to lesser-included offenses.

These prior determinations significantly undercut any claim that counsel was ineffective for allegedly failing to anticipate or explain the possibility of a lesser-included conviction; such a conviction was embedded in the structure of the charge itself under Rule 31(c).

2. State v. Allen, 131 W. Va. 667, 49 S.E.2d 847 (1948)

In the syllabus of Allen, the Court held, in relevant part, that:

“It is error not to instruct the jury on the nature, elements and punishment for the offense to which such evidence relates, when request therefor is made either by the State or the defendant.”

This underlies West Virginia’s robust approach to lesser-included offenses:

If the evidence reasonably supports a lesser-included offense and either party requests an instruction, the trial court must give it.
Failure to give such an instruction when warranted is reversible error.

In this habeas case, Allen is important because the petitioner’s complaint effectively runs contrary to its logic. He sought to argue that the late introduction of lesser-included instructions (second-degree murder and voluntary manslaughter) was unfair, but under Allen it would have been error for the trial court not to give those instructions given the evidence. Hence, trial counsel were operating within a legal framework that not only allowed but required such instructions once requested.

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

Daniel v. Legursky is cited for two related propositions:

Cumulative error in IAC claims. In footnote 7, Daniel acknowledges that a habeas petitioner can show the required prejudice from ineffective assistance by demonstrating the cumulative effect of multiple deficiencies.
Credibility conflicts between counsel and defendant. Daniel also articulates a critical practical rule: when there is a conflict in evidence between defense counsel and the defendant, the circuit court’s resolution of that conflict—its credibility finding—will “usually be upheld” on appeal.

The Supreme Court here invokes the latter principle. At the habeas hearing, both trial counsel testified that they discussed with the petitioner whether he should testify and that he elected to exercise his Fifth Amendment right not to testify. The petitioner, to the extent he suggested counsel gave him no assistance on this decision, contradicted them. The circuit court chose to credit counsel and discredit the petitioner on that point, and the Supreme Court, faithfully applying Daniel, deferred to that credibility determination.

The Court also notes the misuse of the “cumulative error” label. While the petitioner invoked “cumulative error,” he did not in fact assert multiple, distinct errors; he presented only two facets of the same ineffective assistance theory, with the “second” asserted in the alternative. Daniel confirms that cumulative-error prejudice requires multiple actual deficiencies, not merely multiple iterations of one alleged failing.

4. Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981)

Losh is the foundational West Virginia case establishing the so‑called “Losh checklist”—a standardized list of potential habeas corpus grounds that petitioners are asked to review, initial, and sign.

Its key function is waiver: grounds not specifically raised (or reserved) on the checklist are deemed waived and cannot be re-litigated in later habeas petitions absent exceptional circumstances. The Court notes that the petitioner in this case initialed and signed the checklist, waiving all grounds not pursued—thus narrowing the appellate focus to the specific ineffective assistance arguments actually made.

5. Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006)

Mathena is cited for the standard of review in habeas appeals:

Abuse of discretion for the ultimate disposition;
Clearly erroneous for underlying factual findings; and
De novo review for questions of law.

This tripartite standard is crucial. It underscores:

That the appellate court will not lightly disturb the circuit court’s resolution—even if it might have ruled differently in the first instance—absent a clear abuse of discretion; and
That facts, especially credibility determinations, are largely the province of the circuit court.

6. Dement v. Pszczolkowski, 245 W. Va. 564, 859 S.E.2d 732 (2021) & Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973)

Together, these cases reiterate a basic but often overlooked appellate principle:

“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.”

In the habeas context, this is especially powerful:

The petitioner must not only claim error, but also affirmatively demonstrate it in the record;
The appellate court presumes the circuit court’s rulings are correct unless the petitioner rebuts that presumption.

This principle undergirds the Court’s conclusion that the petitioner failed to carry his burden, particularly as he failed to specify what his foregone testimony would have been and how it might have changed the verdict.

7. State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995)

Guthrie is cited for the fundamental proposition that:

“Judging the credibility of witnesses exclusively belongs to the finder of fact.”

In habeas proceedings, the circuit judge is the finder of fact. When counsel’s testimony conflicts with the petitioner’s, the judge decides whom to believe. On appeal, that credibility determination is rarely disturbed, reinforcing the result here.

8. State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) and Strickland v. Washington, 466 U.S. 668 (1984)

Miller, adopting Strickland, is cited for syllabus point 5, establishing the two-prong test for ineffective assistance of counsel:

Counsel’s performance must be deficient under an objective standard of reasonableness; and
There must be a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.

This decision focuses particularly on the prejudice prong. The Court notes that, at his habeas hearing, the petitioner:

Offered no evidence of what his trial testimony would have been had he chosen to testify; and
Consequently, offered no basis for concluding that such testimony might have mitigated the evidence against him or changed the trial outcome.

Without that showing, even assuming (for argument’s sake) some deficiency in counsel’s advice, there is no way to find prejudice. The Strickland/Miller claim collapses at the second prong.

9. Rules of Criminal and Appellate Procedure

W. Va. R. Crim. P. 30 – Governs jury instructions, including when proposed instructions may be submitted. The State’s submission of proposed lesser-included offense instructions at the close of evidence complied with this rule, as the Supreme Court already determined on direct appeal.
W. Va. R. Crim. P. 31(c) – Provides that a defendant “may be found guilty of an offense necessarily included in the offense charged.” This is the textual foundation for permitting the jury to convict the petitioner of second-degree murder when he was indicted for first-degree murder.
W. Va. R. App. P. 21(c) – Allows the Supreme Court to decide a case by memorandum decision without oral argument where there is no substantial question of law and no prejudicial error. The Court invoked this rule here, signaling that it viewed the appeal as controlled by existing law.
W. Va. R. App. P. 41(c) – Provides for substitution of public officials (such as a new superintendent or Attorney General) when they leave office or are replaced. The opinion notes such substitutions as a procedural matter.

B. The Court’s Legal Reasoning

1. Evaluating the Alleged Ineffectiveness

The petitioner’s central theory was that:

Trial counsel inadequately explained that the jury could convict him of lesser-included offenses; and
Had he understood that, he might have testified, potentially changing the result.

The Court’s reasoning addresses both prongs of Strickland/Miller, though it emphasizes the failure to prove prejudice.

(a) Deficiency Prong – Was Counsel’s Performance Objectively Unreasonable?

While the Supreme Court does not conduct an extended separate analysis of deficiency, several facts in the opinion strongly undermine the claim that counsel acted unreasonably:

The record from the criminal trial shows that the petitioner expressly rejected a plea offer to second-degree murder with the State standing silent at sentencing.
In that context, trial counsel informed the circuit court that they had explained to the petitioner “the difference between second degree murder and first-degree murder.”
At the habeas hearing, both trial counsel testified that they discussed with the petitioner whether he should testify, and that he knowingly chose not to, invoking his Fifth Amendment right.
The circuit court found his testimony that counsel failed to help him on the decision to testify “not credible” to the extent it conflicted with counsel’s testimony.

From these facts, two points emerge:

The petitioner plainly knew of the existence and nature of second-degree murder before trial ended—he rejected a plea to exactly that offense.
The evidence supports that counsel discussed his right to testify and that he declined, not because of an ignorance of lesser-included offenses, but because he wanted the trial “to be about the facts instead of being about him.”

Thus, even before reaching prejudice, the record casts serious doubt on any claim that counsel’s performance fell below an objective standard of reasonableness.

(b) Prejudice Prong – Did the Alleged Error Affect the Outcome?

The Court ultimately focuses on the second prong of Strickland/Miller.

The petitioner testified at the habeas hearing that, had he known the jury could consider lesser-included offenses, he might have decided to testify at trial. However:

He did not offer any proffer or summary of what his testimony would have been.
He did not explain how such testimony could have undermined the State’s evidence or supported a different verdict (for example, acquittal or a conviction of a lesser offense than second-degree murder).

The Court therefore concludes that he “failed to offer any evidence of what testimony he might have given at trial, much less how that testimony might have mitigated the evidence against him or the outcome of his trial.” Without that, there is no basis to find a “reasonable probability” of a different result.

This forms the key application of the rule:

A habeas petitioner claiming that counsel’s advice caused him not to testify cannot satisfy the Strickland prejudice prong merely by saying he would have testified; he must specifically show what he would have said and why it would probably have altered the outcome.

Moreover, layered atop the prior direct-appeal determination that the evidence of second-degree murder was strong, any claim that unspecified testimony would have changed the result is speculative. Speculation does not suffice for constitutional prejudice.

2. Credibility Findings and Their Significance

The circuit court’s order included two detailed credibility findings:

It found the petitioner’s explanation of why he did not testify—that he wanted the case to be “about the facts, not about him”—was consistent with trial counsels’ testimony that they discussed the decision with him. This undermines his new assertion that his decision was based on a “false premise” about lesser-included offenses.
To the extent he claimed that trial counsel provided “no help” about whether he should testify, the circuit court found that testimony not credible because it conflicted with counsel’s testimony.

The Supreme Court explicitly reinforces that, under Daniel v. Legursky and Guthrie, such credibility determinations by the circuit court are typically upheld. This reinforces a practical point: in habeas litigation, petitioners face a significant hurdle when their testimony conflicts with that of experienced defense counsel and the circuit court sides with counsel.

3. Treatment of the “Cumulative Error” Label

The petitioner styled one of his theories as “cumulative error,” referencing the doctrine recognized in Daniel, under which multiple small deficiencies in representation can accumulate to produce prejudice even if each would be harmless in isolation.

However, the Supreme Court notes that:

Despite using the “cumulative error” label, the petitioner identified no separate, independent errors beyond those already encompassed in his ineffective assistance claim.
Therefore, he essentially had only one legal theory—IAC—expressed in two formulations (primary and alternative).

This matters because cumulative error requires multiple actual errors; merely recharacterizing the same single allegation does not transform it into a cumulative error claim. The Court thus treats it as part of the IAC analysis, not as a free-standing cumulative error argument.

4. Interaction with Prior Direct Appeal Rulings

An important structural theme is how the habeas claim attempts to reframe issues already resolved—at least indirectly—on direct appeal. On direct appeal, the Court held:

The evidence supported second-degree murder;
Lesser-included offense instructions were both permissible and required when supported by the evidence; and
There was no due process problem in the timing or content of those instructions under Rules 30 and 31(c).

In habeas, the petitioner attempted to shift focus from due process/notice to ineffective assistance, suggesting that counsel failed to prepare him for the risk of a lesser-included conviction and that this affected his decision not to testify.

Yet, the Court’s prior recognition that:

Second-degree murder was a proper lesser-included offense, and
The evidence strongly supported it,

makes it harder to show that any late realization of that possibility—or any difference in advice about it—would have changed the outcome. The legal backdrop (Rule 31(c) and Allen) and the evidentiary strength of the State’s case weigh heavily against any plausible prejudice argument.

C. Impact and Practical Implications

1. For Defense Counsel

This decision underscores several practice points for defense attorneys in West Virginia:

Explicit advice on lesser-included offenses. Counsel should routinely and clearly explain:
- that lesser-included offenses are inherent in a greater charge under Rule 31(c);
- the elements and potential penalties of those lesser-included offenses; and
- the realistic chance that a jury may convict on a lesser offense even if it acquits on the greater.
The plea colloquy and record in this case functioned as a safety net for counsel, but best practice is to ensure that such explanations are thorough and, when possible, reflected in the record.
Advising on the right to testify. Counsel must provide informed advice about:
- the client’s absolute right not to testify (Fifth Amendment right against self-incrimination);
- the strategic pros and cons of testifying; and
- the fact that counsel can advise but the ultimate decision rests with the client.
Detailed on-the-record colloquies—or at least internal documentation of the advice given—are particularly valuable, because credibility disputes in later habeas proceedings will often favor counsel’s documented version.
Creating a robust record. This case shows the value of having clear trial transcripts where counsel’s advice and the defendant’s choices are documented, such as during plea colloquies and colloquies about the right to testify.

2. For Habeas Petitioners and Their Counsel

The decision sends clear signals to habeas practitioners:

Specificity in alleging prejudice is essential. A petitioner claiming, “I would have testified if advised differently” must:
- Proffer specific testimony he would have given;
- Explain how that testimony is materially different from what the jury already heard; and
- Show a reasonable probability that such testimony would have altered the verdict or sentence.
Vague or hypothetical assertions are insufficient.
Prepare for credibility challenges. When the petitioner’s memory of trial strategy conflicts with counsel’s, the circuit court will likely credit counsel—especially if supported by contemporaneous records. Petitioners should be prepared with corroborating evidence if available.
Use the Losh checklist carefully. Grounds not checked are typically waived. Petitioners and habeas counsel must treat the checklist as a critical pleading, not a mere formality.
“Cumulative error” is not a magic phrase. The label must correspond to actual multiple errors; otherwise, courts will treat it as a repackaged single claim.

3. For Trial and Appellate Courts

For judges, this memorandum decision:

Reaffirms the strong deference owed to circuit courts’ factual and credibility determinations in habeas cases.
Highlights the importance of making clear, written findings—particularly on credibility and on whether and how a petitioner has failed to prove prejudice—so that the appellate court can readily apply Strickland/Miller.
Reiterates that memorandum decisions under Rule 21(c) are suitable where the issues are controlled by settled law and do not present new, substantial questions.

V. Complex Concepts Simplified

1. Lesser-Included Offense

A “lesser-included offense” is a crime whose elements are entirely contained within a greater offense. If you commit the greater offense, you necessarily commit the lesser as well. For example, under West Virginia law:

First-degree murder requires, among other elements, premeditation and deliberation (or qualifies as felony murder);
Second-degree murder typically requires an unlawful, intentional killing with malice but without premeditation.

Because the elements of second-degree murder are contained within first-degree murder, second-degree murder is a lesser-included offense of first-degree murder. Rule 31(c) allows a jury that is charged with deciding a first-degree murder indictment to instead convict of second-degree murder if it finds that the added element of premeditation is not proven beyond a reasonable doubt.

2. Ineffective Assistance of Counsel (Strickland/Miller)

To win on a claim of ineffective assistance of counsel, a petitioner must prove two things:

Deficient Performance: Counsel’s performance fell below an objective standard of reasonableness—that is, competent attorneys in similar cases would not have acted (or failed to act) as counsel did.
Prejudice: There is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. This doesn’t require proof the outcome definitely would have changed, but it must be more than a mere possibility or speculation.

Both prongs are required. If either is missing, the claim fails.

3. Habeas Corpus in West Virginia

Habeas corpus is a post-conviction remedy that allows a prisoner to challenge the legality of his detention. In West Virginia:

It often follows a direct appeal and is used to raise claims that could not be raised on appeal (such as many ineffective assistance claims);
The petitioner bears the burden of proof on all claims; and
The Losh checklist system governs waiver of unraised issues.

4. Memorandum Decision under Rule 21(c)

When the Supreme Court determines that a case:

Raises no substantial question of law;
Involves no prejudicial error; and
Is controlled by existing precedent,

it may issue a shorter “memorandum decision” instead of a full opinion with new syllabus points. Such decisions, while less elaborately reasoned, still apply settled law to the facts and may be cited as persuasive authority.

5. Standard of Review: Abuse of Discretion, Clearly Erroneous, De Novo

Abuse of discretion: The appellate court asks whether the lower court’s decision was arbitrary, irrational, or otherwise outside the range of reasonable choices. It is a deferential standard.
Clearly erroneous: For factual findings, the appellate court will not disturb them unless, after reviewing the entire record, it is left with a firm conviction that a mistake has been made.
De novo: For pure questions of law, the appellate court makes its own determination without deferring to the lower court’s legal conclusions.

6. Fifth Amendment Right Not to Testify

A criminal defendant has a constitutional right under the Fifth Amendment not to testify and thereby avoid self-incrimination. Key points:

Only the defendant can ultimately decide whether to testify or remain silent;
Counsel has a duty to inform the defendant of this right and to advise on its strategic implications;
In most jurisdictions, if a defendant chooses not to testify, the jury is instructed not to draw any adverse inference from that decision.

VI. Conclusion: Significance of Vandergriff v. Searls in the Broader Legal Context

While formally a Rule 21(c) memorandum decision without new syllabus points, Morgan C. Vandergriff v. Searls provides a clear and instructive application of core West Virginia habeas principles. Most notably, it reinforces that:

An ineffective assistance claim premised on a defendant’s lost opportunity to testify requires more than a bare assertion that the defendant “would have testified”; it requires a concrete proffer of the foregone testimony and an explanation of how that testimony would likely have changed the outcome.
When trial counsel and the petitioner offer conflicting accounts of their consultations and advice, the circuit court’s credibility determinations will “usually be upheld” on appeal, especially where supported by the trial record.
Lesser-included offense instructions are a normal and expected aspect of criminal trials under West Virginia law, particularly in homicide cases; counsel and defendants alike must anticipate them.
The petitioner in a habeas appeal carries a heavy burden, facing both deferential standards of review and presumptions in favor of the correctness of the lower court’s judgment.

Taken together, these points underscore a broader theme: West Virginia’s appellate courts continue to apply a rigorous, evidence-based approach to ineffective assistance claims, requiring petitioners not just to identify potential missteps by counsel, but to show, in a concrete and non-speculative way, that those missteps likely mattered.

In practical terms, Vandergriff serves as a cautionary tale for defendants and a reminder for defense counsel: the record you create at trial—in advising on pleas, explaining lesser-included offenses, and documenting decisions about testifying—will often decide, years later, whether a habeas court credits or rejects claims of ineffective assistance.

Requiring a Specific Proffer of Foregone Testimony to Prove Prejudice in Ineffective Assistance Claims: Commentary on Morgan C. Vandergriff v. Searls