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.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
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.
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.
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. 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. 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. 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.
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.
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).
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."
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).
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 ...