Robert R. v. Ames, Superintendent ( 2022 )

FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Robert R.,
Defendant Below, Petitioner
vs.) No. 21-0379 (Mineral County 20-C-50)
Donnie Ames, Superintendent, Mt. Olive
Correctional Complex,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Robert R. 1 appeals the May 6, 2021, order of the Circuit Court
of Mineral County denying his second petition for a writ of habeas corpus. Respondent Donnie
Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick Morrisey and Mary
Beth Niday, filed a response in support of the circuit court’s order. Petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In September of 2010, petitioner was indicted on fifty-six counts of various sexual offenses
alleged to have been perpetrated against four separate minors. Prior to trial, twenty-one counts of
the indictment were dismissed. At trial, the jury convicted petitioner of thirty sexual offenses, but
it was unable to reach a verdict on the remaining five. The circuit court subsequently sentenced
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
1
petitioner to an aggregate term of 125 to 295 years of incarceration. Petitioner filed an appeal in
State v. Robert Scott R., Jr. (“Robert R. I”), 233 W. Va. 12, 754 S.E.2d 588 (2014), and this Court
affirmed his convictions. Id. at 27, 754 S.E.2d at 603.
On September 15, 2014, petitioner filed a petition for a writ of habeas corpus. Habeas
counsel was appointed, who filed an amended petition raising prejudicial pretrial publicity,
ineffective assistance of counsel, constitutional errors in evidentiary rulings, and the presence of a
tainted juror on the jury as grounds for relief. Petitioner “waive[d] all other potential Losh grounds,
as indicated by . . . [p]etitioner’s initials and signatures on the Losh [l]ist to be filed
contemporaneously” with the amended petition. 2 Relevant here, on the Losh list, petitioner waived
grounds 50 and 51: severer sentence than expected and excessive sentence. Petitioner certified that
habeas counsel advised him that he “should raise each and every ground which I feel may entitle
me to habeas corpus relief” and “any grounds not raised are waived by me and may not be raised
in [s]tate [c]ourt,” and that “I do not wish to raise any of the grounds initialed and dated above,
and knowingly waive them.” In the certification submitted by habeas counsel, counsel stated that
“[p]etitioner, after consulting with counsel, desires to raise none of the grounds so checked and to
[the] best of counsel’s knowledge, knowingly, intelligently, and voluntarily waives said grounds
for the purpose of this proceeding and all future state habeas corpus proceedings.”
Following an omnibus hearing, the habeas court entered an order denying the amended
petition. Petitioner appealed the habeas court’s order in Robert R. v. Terry (“Robert R. II”), No.
16-1121, 2018 WL 317313 (W. Va. Jan. 8, 2018) (memorandum decision), arguing that the habeas
court erred in denying his claim of ineffective assistance of trial counsel and that he was prejudiced
by cumulative trial error. Id. at *2. This Court in Robert R. II rejected petitioner’s assignments of
error and affirmed the denial of habeas relief. Id. at *2-4.
On October 26, 2020, petitioner filed the instant petition alleging that habeas counsel
provided ineffective assistance in the first proceeding. Petitioner stated his claim in a single
paragraph:
Petitioner’s [h]abeas [c]orpus counsel was constitutionally defective for failing to
present a disproportionate/excessive sentence claim. Petitioner’s sentence is
egregiously disproportionate and should shock the con[s]cience of the judiciary.
Other circuit courts have sentenced people to less for similar and for worse
offenses. Counsel was also constitutionally defective for failing to preserve
colorable claims for relief on appeal. AEDPA requires that claims for relief are
exhausted in the [s]tate [s]urpeme [c]ourt before they can be presented to the federal
2
The checklist of grounds typically used in habeas corpus proceedings, usually referred to
as the Losh list, originates from our decision in Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d
606 (1981), where we set forth the most common grounds for habeas relief. See id. at 768-70, 277
S.E.2d at 611-12.
2
courts.[ 3] Habeas counsel failed to present many of [p]etitioner’s claims on appeal
to the [West Virginia Supreme Court of Appeals], thus denying the [p]etitioner the
ability to raise these claims in federal court. Note that [p]etitioner’s AEDPA time
is still active because, up until recently, [p]etitioner’s [m]otion for [r]eduction of
[s]entence was still pending in this [c]ourt. Had habeas counsel presented the
disproportionate sentence claim to this court, the [p]etitioner would have been
resentenced to a lesser sentence. Additionally[,] had habeas counsel properly
prosecuted [p]etitioner’s appeal, he would be able to assert all viable claims for
relief in the federal courts. Petitioner requests a hearing and the appointment of
counsel to further present and litigate these issues.
(emphasis omitted) (footnote added).
By order entered on May 6, 2021, the habeas court denied the instant petition, finding that
counsel was not ineffective in the first proceeding. The habeas court found that, while petitioner
was “claiming that his habeas counsel was defective,” petitioner did not raise a disproportionate
sentence claim “in his prior habeas petition” and “waived the issue.” The habeas court further
found that the assertion of a disproportionate sentence claim would not be meritorious because,
based upon petitioner’s “sex offender evaluation at the time of sentencing,” he “is at an elevated
risk to reoffend should he be returned to the community.” The habeas court determined that the
trial court “took that factor and all other permissible factors into consideration when sentencing
[petitioner].”
Petitioner now appeals the habeas court’s May 6, 2021, order. This Court reviews a circuit
court’s order denying a habeas petition under the following standards:
“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).
....
“‘A court having jurisdiction over habeas corpus proceedings may deny a
petition for a writ of habeas corpus without a hearing and without appointing
counsel for the petitioner if the petition, exhibits, affidavits or other documentary
evidence filed therewith show to such court’s satisfaction that the petitioner is
entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194
S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 183
Petitioner refers to the Antiterrorism and Effective Death Penalty Act of 1996, which “was
signed into law on April 24, 1996[.]” Dement v. Pszczolkowski, 859 S.E.2d 732, 744 n.15 (W. Va.
2021) (internal quotations and citations omitted).
3
(2004).
Syl. Pts. 1 & 3, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Because we have before
us the denial of petitioner’s second habeas petition, we consider the application of Syllabus Point
4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981):
A prior omnibus habeas corpus hearing is res judicata as to all matters raised and
as to all matters known or which with reasonable diligence could have been known;
however, an applicant may still petition the court on the following ground[ ]:
ineffective assistance of counsel at the omnibus habeas corpus hearing[.]
On appeal, petitioner argues that the habeas court failed to make findings with regard to
habeas counsel’s alleged failure to raise certain claims on appeal in Robert R. II. “West Virginia
Code section 53-4A-7(c) (1994) requires a circuit court denying or granting relief in a habeas
corpus proceeding to make specific findings of fact and conclusions of law relating to each
contention advanced by the petitioner, and to state the grounds upon which the matter was
determined.” Syl. Pt. 1, State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997). 4
Respondent argues that the habeas court was not required to make findings regarding a claim that
was not properly before it due to the inadequacy of the instant petition. Specifically, respondent
argues that the instant petition failed to identify those claims that petitioner contends habeas
counsel failed to raise in Robert R. II. Based upon our review of the instant petition, we agree with
respondent’s position and note that this Court has stated that “a petition for a writ of habeas corpus
filed pro se must specifically state in detail the underlying facts that support the claim.” Losh, 166
W. Va. at 612, 277 S.E.2d at 771 (finding that an assertion of a claim “without detailed factual
support does not justify the issuance of a writ, the appointment of counsel, and the holding of a
hearing”).
Petitioner further argues that the habeas court erred in denying the instant petition without
a hearing and appointment of counsel. The habeas court denied the petition, rejecting the claim
that habeas counsel was ineffective in failing to raise a disproportionate sentence claim based on
findings that the claim was waived in the first proceeding and that it was also without merit.
4
West Virginia Code § 53-4A-7(c) provides, in pertinent part:
When the court [in a post-conviction habeas corpus proceeding] determines to deny
or grant relief . . . , the court shall enter an appropriate order . . . . In any order
entered in accordance with the provisions of this section, the court shall make
specific findings of fact and conclusions of law relating to each contention or
contentions and grounds (in fact or law) advanced, shall clearly state the grounds
upon which the matter was determined, and shall state whether a federal and/or
state right was presented and decided.
Rule 9(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia
imposes a similar requirement for findings of fact and conclusions of law.
4
With regard to the habeas court’s finding of waiver, petitioner does not dispute the
statements set forth in the amended petition and the Losh list where he waived all grounds not
raised therein, including grounds 50 and 51 (severer sentence than expected and excessive
sentence). Furthermore, even if petitioner disputed that he waived the disproportionate sentence
claim in the first proceeding, he could not rely upon the omnibus hearing transcript to contradict
the waiver indicated by his initials and signature on the Losh list because the transcript is not
included in petitioner’s appendix. See State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101
n.4 (1994) (finding that this Court must “take as non[-]existing all facts that do not appear in the
[appendix] record and will ignore those issues where the missing record is needed to give factual
support to the claim”). Therefore, based on our review of the record before us, we concur with the
habeas court’s finding that the disproportionate sentence claim was waived in the first proceeding. 5
In Syllabus Point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), we held that:
[i]n the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-prong 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.
Pursuant to this Strickland/Miller test, we find that habeas counsel’s performance was not deficient
for failing to raise a claim that petitioner waived. Therefore, we conclude that the habeas court did
not abuse its discretion in denying the instant petition.
For the foregoing reasons, we affirm the circuit court’s May 6, 2021, order denying
petitioner’s second petition for a writ of habeas corpus.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
5
Due to our determination that the habeas court properly found that petitioner waived the
disproportionate sentence claim, we do not address its alternate finding that the claim was without
merit.
5