Raleigh County 06-C-784
Marvin Mills, by counsel Stephen P. New, appeals the January
25, 2018, order of the Circuit Court of Raleigh County that
denied his petition for a writ of habeas corpus following his
conviction of first-degree murder with use of a firearm.
Donnie Ames, Superintendent, Mount Olive Correctional
Complex,  by counsel Robert L. Hogan, filed a
response in support of the circuit court's order.
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 1999, petitioner drove to Richmond Cleaners in
Beckley, West Virginia, stepped inside, removed his .38
caliber gun from the manila envelope he was carrying,
shot Pamela Cabe two times, causing her death. Petitioner
then crossed the street, tossed his handgun nearby, and
waited for the police. The police recovered the handgun with
petitioner's help and took him into custody. Petitioner
confessed to the murder.
2000, petitioner was tried before a jury in the Circuit Court
of Raleigh County on the charge of first-degree murder. Given
the overwhelming evidence that he shot the victim, petitioner
did not dispute this fact at trial. He was convicted of
first-degree murder by use of a firearm and was sentenced to
life in prison without the recommendation of mercy.
Petitioner appealed and this Court reversed his conviction
and remanded the matter for a new trial. See State v.
Mills, 211 W.Va. 532, 566 S.E.2d 891 (2002)
("Mills I") (finding reversible error in
the trial court's failure to grant a motion to strike a
prospective juror for cause and the prosecutor's improper
references to petitioner's decision not to testify).
November 2003, following a second jury trial, petitioner was
again convicted of first-degree murder by use of a firearm
and was sentenced to life without mercy. Petitioner appealed
and this Court affirmed his conviction. See State v.
Mills, 219 W.Va. 28');">219 W.Va. 28, 631 S.E.2d 586 (2005)
filed a pro se petition for a writ of habeas corpus in 2006.
Various appointed counsel came and went and petitioner's
present counsel was appointed in May 2011. On June 26, 2013,
petitioner, by counsel, filed an extensive amended habeas
a July 15, 2014, hearing, the habeas court entered a detailed
thirty-page order denying relief, specifically acknowledging
that, at the habeas hearing, petitioner adopted a strategy
that he had not previously employed in either of his trials,
appeals, or early on in his request for habeas relief: actual
innocence. The habeas court rejected any claim that this
"new 'contention in fact'" constituted
"new evidence" warranting habeas relief because
petitioner had the opportunity to make such claim in both
trials, in his two appeals, and in his earlier
habeas court further found that the following grounds for
relief alleged in the amended petition were previously and
finally adjudicated in petitioner's appeal of his
conviction following the second trial: violation of the right
to confront witnesses; prosecutorial misconduct (as to the
prosecutor's closing argument); failure to strike jurors;
improper media involvement; and media coverage of the jury
view of the crime scene. See generally Mills II, 219
W.Va. 28, 631 S.E.2d 586; W.Va. Code § 53-4A-1. As for
the other grounds alleged (with the exception of the
ineffective assistance of counsel claim), the habeas court
concluded that petitioner failed to rebut the presumption
that he intelligently and knowingly failed to advance certain
issues that could have been raised prior to or during trial
or on direct appeal-i.e., "911 Recordings";
"Failure [to] preserve audiotape recorded
statements"; prosecutorial misconduct; prior acts of
prosecutorial misconduct involving conduct other than the
prosecutor's closing argument; prosecutor acted as an
"over[-]zealous advocate"; violation of Trial Court
Rule 17 by the circuit judges; appearance of bias by
"[t]he 10th Judicial Circuit"; failure
to bifurcate trial and sentencing; failure to bifurcate on
the issue of eligibility for probation; and "[f]ruit of
the [p]oisonous [t]ree-[n]o Miranda warning/coercion
to give 'voluntary statement.'" See
generally Mills II, 219 W.Va. 28');">219 W.Va. 28, 631 S.E.2d 586; W.Va.
Code § 53-4A-1.
the remaining issue before the habeas court was whether
petitioner received ineffective assistance of trial counsel
on the following grounds: (1) failure to question or move to
suppress petitioner's statement, which petitioner now
claims was coerced; (2) "[d]efense counsel pled
petitioner guilty[;]" (3) failure to dispute the
State's claim that petitioner planned a "sneak
attack" on the victim; (4) failure to investigate
eyewitness's claim; (5) failure to impeach witness's
inconsistent statements; (6) failure to investigate and
clarify firearm examiner testimony; (7) failure to challenge
the gun-residue kit; and (8) failure to move for mistrial or
file pretrial motions regarding missing evidence.
habeas court addressed and rejected each of petitioner's
ineffective assistance arguments. See Syl. Pt. 5,
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
("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."). This appeal followed.
Court reviews orders denying habeas relief under 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, in part,
Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771
petitioner's first assignment of error, he argues that
the habeas court incorrectly concluded that trial counsel was
not ineffective. Petitioner argues, as he did below, that
trial counsel was ineffective in failing to question law
enforcement about the circumstances surrounding his
confession, which petitioner now claims was coerced and
should have been suppressed. The habeas court found that, at
the suppression hearing (at which petitioner refused to
testify) and in his two appeals from his convictions,
never claimed that his confession was coerced or, as he now
contends, that he requested a lawyer three times before
making his statement. Petitioner does not challenge these
findings in this appeal. Further, trial counsel testified
that petitioner never advised him of the alleged
circumstances surrounding his confession. Rather, the
evidence showed that petitioner twice confirmed that he
understood his Miranda rights before giving his
confession and that he agreed in the recorded confession that
his statement was not coerced. Petitioner fails to make any
compelling argument on appeal that the habeas court abused
its discretion in finding that trial counsel was not
ineffective in failing to investigate the alleged
circumstances surrounding petitioner's confession.
also argues, as he did below, that trial counsel was
ineffective for conceding to the jury that petitioner killed
the victim; failing to investigate an eyewitness's claim
that the shooter appeared to be "black or Hispanic
[be]cause he was dark skinned," which is a physical
description that does not match petitioner's; failing to
impeach the testimony of an eyewitness who, at the first
trial, described the shooter as having a long beard and pony
tail, but in the retrial, failed to mention a pony tail;
failing to undermine the testimony of the State's firearm
expert; and failing to re-test the gunshot residue found on
petitioner's hand, which petitioner now claims could have
been alternatively explained by the fact that, on the morning
of the murder, he had used two different nail guns that
"create[d] powder residue." We find no error.
Despite petitioner's new theory of actual innocence, the
evidence that he shot the victim was overwhelming. Thus, it
is abundantly clear that trial counsel, in concert with
petitioner, acted reasonably in conceding the same in order
to focus defense efforts on persuading the jury to convict on
a charge that was lesser than the indicted charge of
first-degree murder and/or to recommend a sentence of mercy.
The above arguments that petitioner claims support an
ineffective assistance claim are wholly inconsistent with the
well-founded defense strategy employed by trial counsel in
both trials and in his appeals of those convictions. The
habeas court did not err in concluding that trial counsel was
not ineffective in this regard.
remaining arguments in support of his claim that trial
counsel was ineffective need not be addressed. First,
petitioner argues that trial counsel failed to dispute the
State's claim that petitioner planned a "sneak
attack" on the victim and that the State improperly used
"[s]neak attack rhetoric" "extensively"
throughout its case-in-chief and during closing argument.
Petitioner argues that trial counsel's failure to object
to or "investigate" the State's claim amounted
to ineffective assistance. Petitioner fails to include any
citation to the record in support of this alleged error.
Second, petitioner argues that trial counsel was also
ineffective by failing to move for a mistrial or file
pretrial motions regarding "missing" recordings of
certain witness statements and unspecified 9-1-1 calls.
Though petitioner summarily states that he was "greatly
prejudiced by the failure of the State and his counsel to
preserve this evidence in that witnesses could not be
impeached at the second trial with their own words[, ]"
he fails to provide any specific instances of prejudice with
respect to witness testimony or otherwise cite to the record
in support of this claim. Furthermore, petitioner fails to
argue the legal standard under which a mistrial should have
been granted, identify what motions should have been filed by
trial counsel prior to trial, or explain what impact the
recordings would have had on petitioner's defense at
trial. In short, petitioner's arguments are inadequately
briefed and we decline to address them. See W.Va. R.
App. P. 10(c)(7) (providing that petitioner's brief
"must contain appropriate and specific citations to the
record on appeal, including citations that pinpoint when and
how the issues in the assignments of error were presented to
the lower tribunal. The Court may disregard errors that
are not adequately supported by specific references to the
record on appeal." (Emphasis added)); Evans v.
United Bank, Inc., 235 W.Va. 619, 629, 775 S.E.2d 500,
510 (2015) (observing that petitioners' argument failed
to meet requirements of Rule 10(c)(7), and concluding,
therefore, "the issue has been waived for purposes of
appeal"); State v. LaRock, 196 W.Va. 294, 302,
470 S.E.2d 613, 621 (1996) (stating that "[a]lthough we
liberally construe briefs in determining issues presented for
review, issues . . . mentioned only in passing but are not
supported with pertinent authority, are not considered on
appeal."). See also State v. Allen, 208 W.Va.
144, 162, 539 S.E.2d 87, 105 (1999) (stating that "[i]n
the absence of supporting authority, we decline further to
review [these] alleged error[s] because [they have] not been
petitioner raises seven other assignments of error, all of
which were raised and correctly resolved by the habeas court
in its January 30, 2018, order denying relief. The habeas
court determined that the following alleged errors were
waived because petitioner failed to raise them in either of
his appeals from his convictions: prosecutorial misconduct
relating to the improper suppression of 9-1-1 recordings and
the alleged destruction of recorded statements of witnesses;
the alleged violation of Trial Court Rule 17 by the judges of
the Tenth Judicial Circuit; the trial court's failure to
bifurcate the trial and sentencing phases; and the admission
of gruesome photographs of the victim. See Syl. Pt.
2, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 191
(1972) ("In a habeas corpus proceeding under Chapter 53,
Article 4A, Code of West Virginia, 1931, as amended, the
burden of proof rests on petitioner to rebut the presumption
that he intelligently and knowingly waived any contention or
ground for relief which theretofore he could have advanced on
the habeas court determined that the following alleged errors
were previously and finally adjudicated in petitioner's
appeal from his conviction: prosecutorial conduct involving
actions and remarks by the prosecuting attorney; alleged
violation of petitioner's right to confront a witness;
and whether "media involvement" during the jury
view of the crime scene warranted an inquiry into whether the
jury was prejudiced by the same. See Syl. Pt. 1,
Bowman v. Leverette, 169 W.Va. 589, 289 S.E.2d 435
(1982) (" W.Va. Code, 53-4A-1(d)  allows
a petition for post-conviction habeas corpus relief to
advance contentions or grounds which have been previously
adjudicated only if those contentions or grounds are based
upon subsequent court decisions which impose new substantive
or procedural standards in criminal proceedings that are
intended to be applied retroactively."). On appeal,
petitioner fails to present any persuasive arguments that the
habeas court abused its discretion in denying habeas relief
on these grounds.
upon careful review and consideration of the habeas
court's order, the parties' arguments, and the record
submitted on appeal, we find no error or abuse of discretion
by the habeas court. Our review of the record supports the
habeas court's decision to deny petitioner
post-conviction habeas corpus relief based on the alleged
errors raised herein, which errors were also argued below.
Indeed, the habeas court's order includes well-reasoned
findings and conclusions as to the assignments of error
raised on appeal. Given our conclusion that the habeas
court's order and the record before us reflect no clear
error or abuse of discretion, we hereby adopt and incorporate
the court's findings and conclusions as they relate to
petitioner's assignments of error raised herein and
direct the Clerk to attach a copy of the court's January
25, 2018, order denying petitioner's petition for a writ
of habeas corpus to this memorandum decision.
foregoing reasons, we affirm. Affirmed.
CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice
Margaret L. Workman Justice Tim Armstead Justice Evan H.
Justice John A. Hutchison
OF WEST VIRGINIA, ex rel. Marvin Mills, Petitioner
MCBRIDE, WARDEN MOUNT OLIVE CORRECTIONAL COMPLEX Respondent
the afternoon of September 8, 1999, Pamela Cabe was fatally
shot inside her place of business at Richmond Cleaners in
Beckley, West Virginia and the Petitioner, Marvin Mills
(hereinafter Mills) was apprehended outside Richmond Cleaners
immediately after the killing with a .38 caliber pistol a few
feet away; he confessed to shooting and killing Pamela Cabe
with that pistol.
Following a jury trial in the Circuit Court of Raleigh
County, Mills was convicted on May 2, 2000 of first degree
murder by use of a firearm, without a recommendation of
mercy, and was sentence by Judge John Hutchinson to life in
the penitentiary without possibility of parole. Thereafter,
the conviction was reversed and remanded by the W. V. Supreme
Court of Appeals in State v. Mills, 566 S.E.2d 891 (2002).
second jury trial was held in Raleigh County Circuit Court
and on November 7, 2003, Mills was again convicted of first
degree murder by use of a firearm without a recommendation of
mercy, and was again sentenced by Judge John Hutchinson to
life imprisonment without the possibility of parole:
thereafter, such conviction and sentence were affirmed by the
W.Va. Supreme Court of Appeals in 5tafe v. Mills,
631 S.E.2d 586 (2005).
During his first trial Mills was represented by two attorneys
from the Raleigh County Public Defender's Office; in his
second trial he was represented by John Sullivan and Stephen
Kenney of the Kanawha County Public Defender's Office and
in his first and second appeals he was represented by at
least two other attorneys from the appellate division of the
Kanawha County Public Defender's Office.
June 26, 2013, Mills, by counsel, filed an Amended Petition
for Writ of Habeas Corpus (hereinafter the Petition).
Petition (at 2) recites the fact that this habeas proceeding
has been pending since 2006 and that "appointed counsel
has changed over the years," with Mills' present
habeas counsel, Stephen New, appointed by Order of Judge John
A. Hutchison on or about May 12, 2011.
September 20, 2012 Judge John A. Hutchison voluntarily
recused himself from this matter, for reasons wholly
unrelated to this case, and by Order of the W.Va. Supreme
Court of Appeals the undersigned Senior Status Judge John L.
Cummings (hereinafter the Court) was assigned to preside over
an omnibus habeas corpus hearing and to rule upon the matters
raised in the Petition.
Court has reviewed the Petition, the State's Response to
Amended Petition for Writ of Habeas Corpus, the original
pro se Petition for Writ of Habeas Corpus and the
subsequent Amended Petition filed by prior habeas counsel,
the Writ of Prohibition and responses thereto and the W.Va.
Supreme Court ruling concerning recusal of Judge John A.
Hutchison and the prosecuting attorney, the transcripts of
the defendant's two trials, the records of and opinions
resulting from his two direct appeals, the records maintained
in the Raleigh County Circuit Clerk's Office, including
several forensic evaluations of the defendant and multiple
letters and pro se pleadings from Mills to the
Raleigh County Circuit Court and to the W.Va. Supreme Court
of Appeals, and the testimony taken and exhibits introduced
during the July 15, 2014 habeas hearing.
defendant in his verification of June 4, 2013, filed with the
Petition, knowingly and intelligently waived all grounds
included in the "Losh List," Losh v.
McKenzie, 277 S.E.2d 606 (W.Va. 1981) and all other
grounds for habeas review with the exception of the grounds
alleged in the Petition. Habeas Corpus Hearing Tr. 8-9.
Petition contains grounds designated "A" through
"P," titled as follows: (Errors in grammar,
punctuation, spelling and capitalization in original}.
"Ineffective Assistance of Counsel." Petition at
Recordings." Petition at 36-43. C. "Failure
preserve audiotape recorded statements." Petition at
"Violation of the Petitioner's Sixth Amendment
Constitutional Right to Confront Witnesses." Petition at
"The Raleigh County Prosecuting Attorney's Office
Committed Prosecutorial Misconduct with respect to
Petitioner." Petition at 52-53.
"Prior Acts of prosecutorial misconduct." Petition
"Ms. Keller has Acted as an Over Zealous Advocate
Instead of a Quasi-Judicial Mister of Justice." Petition
"The Judges of the 10th Judicial Circuit
violated Trial Court Rule 17 resulting in an improper
transfer of the Petitioner's case." Petition at
"The 10th Judicial Circuit had an appearance
of bias against the Petitioner." Petition at 65-68.
"The Trial Court 'abused its discretion' where
it failed to bifurcate the trial and sentencing in derogation
of West Virginia Constitution. Article III. § 10 and
United States Constitution, Amendments 5 and 14 where the
Defendant was prejudiced by his counsel's inability to
argue mercy without admitting guilt." Petition at 68-73.
"The Trial Court Abused Its Discretion By Refusing To
Strike Two Jurors For Cause Who Stated They Could Not
Consider A Recommendation Of Mercy, Violating Mills'
Right To A Trial By A Fair And Impartial Jury." Petition
"The Trial Court Abused Its Discretion By Allowing
Improper Media Involvement That Caused Prejudice To The
Petitioner And Resulted In An Inability To Receive A Fair
Trail And Was A Violation Of Due Process." Petition at
"The Trial Court Denied Mills His Right To Due Process
And A Fair Trial When It Denied His Motion For A Mistrial As
A Result of the Jury View Of The Crime Scene Which Became A
'Walking Parade' Where The Press Walked With And
Photographed The Jurors." Petition at 93-98.
'The Trial Court committed constitutional error by
permitting the entrance of gruesome photos over objection,
which denied the Petitioner a fair trial with reliable
results in violation of West Virginia Constitution, Article
III, § 10 and 14 and United States Constitution.
Amendments 5.6. and 14." Petition at 99-104.
"Court Abused Its Discretion by Denying Petitioner a
Bifurcated Trial on the Issue of Eligibility for
Probation." Petition at 104-108.
"Fruit of the Poisonous Tree-No Miranda warning/coercion
to give 'voluntary statement.'" Petition at
This Court finds as fact that pursuant to W.Va. Code §
53-4A-1, the W.Va. Supreme Court of Appeals previously and
finally adjudicated a number of Mills' claims in 5tote
v. Mills, 631 S.E.2d 586 (2005): these claims are
designated in the Petition as "D," "F,"
(as to prosecutor's closing argument), "K,"
to the remaining claims in the Petition, this Court finds as
fact that Mills has offered no evidence to rebut the §
53-4A-1 presumption that he "intelligently and knowingly
failed to advance" several of his habeas
"contentions and [ ] grounds in fact or law" which
"could have been advanced by the petitioner before
trial, at trial, or on direct appeal... but were not in fact
Petition contains no claim of ineffectiveness of appellate
counsel and Mills and his habeas counsel have confirmed that
Mills makes no such claim: accordingly, pursuant to W.Va.
Code § 53-4A-1, any such contention has been
"intelligently and knowingly" waived. Habeas Corpus
Hearing Tr. at 91-92, 175. McBride v. Lavigne, 737
S.E.2d 560, 573 (W.Va. 2012).
"contentions and the grounds in fact or law" which
could have been advanced by Mills on direct appeal, but were
not advanced, and which are deemed intelligently and
knowingly waived are designated in the Petition as follows:
"B," "C," "E," "F"
(as to contentions in addition to prosecutor's closing
argument), "G," "H, "I,"
"J," "N," "0" and
sole remaining ground for consideration by the Court is the
claim of ineffective assistance of counsel designated
"A" in the Petition.
Petition (at 11-36} alleges eight specific instances of
ineffectiveness of Mills' two trial attorneys, beginning
with "1. [ ] Counsel Failed to Question or Have
Suppressed Petitioner's ...