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Robert R. v. Terry

Supreme Court of West Virginia

January 8, 2018

Robert R., Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         Mineral County 14-C-127

          MEMORANDUM DECISION

         Petitioner Robert R., by counsel Jeremy B. Cooper, appeals the Circuit Court of Mineral County's November 10, 2016, order denying his amended petition for writ of habeas corpus.[1]Respondent Ralph Terry, Acting Warden, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner argues that the circuit court erred in denying him habeas corpus relief on the ground of ineffective assistance of counsel and that he was prejudiced by cumulative trial error.

         This 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 petitioner to a total of not less than one hundred and twenty-five years nor more than two hundred and ninety-five years of incarceration.

         Following his convictions and sentence, petitioner filed a direct appeal with this Court. Of relevance to his instant habeas petition, petitioner alleged in his direct appeal that the trial court should have granted his motion for a mistrial due to certain remarks made by the prosecutor during the State's opening statement and that the trial court failed to conduct a proper hearing before admitting evidence of "other bad acts under" under Rule 404(b) of the West Virginia Rules of Evidence.[2] See State v. Robert Scott R., Jr., 233 W.Va. 12, 18-20, 754 S.E.2d 588, 594-96 (2014). We held that, due to counsel's failure to object to the comments made by the prosecutor during the State's opening statement, petitioner had waived the issue. Id. at 20, 754 S.E.2d at 596. We also held, however, that even had the issue been properly preserved for appeal, no prejudice resulted from the comments.[3] Id. Similarly, with respect to petitioner's Rule 404(b) assignment of error, although we found that the circuit court did not fully comply with the requirements of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), such failure amounted to harmless error.[4] Robert Scott R., Jr., 233 W.Va. at 20-22, 754 S.E.2d at 596-98. Ultimately, we affirmed petitioner's convictions and sentence. Id. at 27, 754 S.E.2d at 603.

         Petitioner then filed, on September 15, 2014, a pro se petition for writ of habeas corpus. The circuit court appointed counsel for petitioner; and petitioner 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. Following an omnibus hearing held on November 3, 2016, the circuit court, by order entered on November 10, 2016, denied petitioner's amended petition. It is from this order that petitioner appeals.

         This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

"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." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         On appeal, petitioner argues that the circuit court erred in denying his claim of ineffective assistance of counsel and asserts that he was prejudiced by cumulative trial error. With respect to his ineffective assistance of counsel claim, petitioner alleges two distinct deficiencies in his representation. First, petitioner asserts that trial counsel's failure to object during the State's opening statement, which resulted in a waiver of the right to raise that issue, "was by itself sufficient to deprive . . . [p]etitioner of appellate relief on those grounds." Petitioner acknowledges that this Court, nonetheless, found that the remarks were not prejudicial, but states that "it is clear that even if the Court found the remarks to be prejudicial error, [trial counsel's] conduct would have caused the error to be waived."

         Second, petitioner claims that he received ineffective assistance of counsel due to counsel's failure to object to certain evidence. In petitioner's direct appeal, he assigned as error the circuit court's failure to hold a McGinnis hearing prior to admitting evidence that he sent pornographic text messages to a seventeen-year-old girl who was not one of the victims in his underlying case. Robert Scott R., Jr., 233 W.Va. at 20, 754 S.E.2d at 596. We found that the court failed to hold a proper McGinnis hearing, but we also found the error to be harmless because, among other reasons, the evidence "was introduced without objection through two other witnesses[.]" Id. at 22, 754 S.E.2d at 598. Petitioner, consequently, contends that trial counsel's failure in this regard "was fully sufficient to cause [him] to be denied a new trial on direct appeal."

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). An ineffective assistance of counsel claim may be disposed of for failure to meet either prong of the test: "Failure to meet the burden of proof imposed by either part of the Strickland/Miller test is fatal to a habeas petitioner's claim." State ex rel. Vernatter v. Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citation omitted).

         Petitioner's first claim of ineffective assistance of counsel concerning trial counsel's failure to object during the State's opening statement fails under the second prong of Strickland. Although we previously stated that "we believe that the prosecutor should not have made comments about [petitioner's] anticipated evidence, " we also found that "the comments have not been shown to prejudice [petitioner]." Robert Scott R, Jr., 233 W.Va. at 20, 754 S.E.2d at 596. This conclusion was predicated on five findings: first, the jury was instructed that what the lawyers said during opening statements was not evidence. Id. Second, the prosecutor also informed the jury that petitioner might not put on evidence of his good character. Id. Third, the comments did not attack petitioner's character. Id. Fourth, the prosecutor had a good faith belief that petitioner would call character witnesses because petitioner informed the court that he had subpoenaed more than thirty witnesses. Id. Fifth, we found that "[i]t cannot be said that [petitioner] would have been acquitted by any impartial jury if the remarks ...


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