                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


Ray Rash,

Petitioner Below, Petitioner
                                                     FILED
                                                                                  May 24, 2013
vs) No. 12-0564 (Mercer County 11-C-22)                                      RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Marvin Plumley, Warden, Huttonsville Correctional Center,
Respondent Below, Respondent

                                MEMORANDUM DECISION

       Petitioner Ray Rash’s appeal, filed by counsel Phillip Scantlebury, arises from the Circuit
Court of Mercer County, wherein petitioner’s petition for writ of habeas corpus was denied by
order entered on March 30, 2012. Respondent Marvin Plumley, Warden, by counsel Laura
Young, filed a response in support of the circuit court’s decision.1

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         Following a jury trial in May of 2007, petitioner was convicted of three counts of various
sexual abuse charges and sentenced to ten to twenty years in prison. On appeal, we upheld
petitioner’s convictions. Petitioner subsequently petitioned for writ of habeas corpus in circuit
court. Following two omnibus evidentiary hearings on his initial petition and his amended
petition, the circuit court entered its twenty-two-page order denying petitioner habeas corpus
relief. In the petition below, petitioner raised several different arguments, including ones he
raises on appeal.

        Petitioner Rash asserts in his petition for appeal that, in addition to the assignments of
error specified in his brief, he incorporates by reference his original petition and amended
petition for habeas corpus relief filed in circuit court. Respondent Warden precedes his response
to petitioner’s arguments on appeal by challenging petitioner’s desire to incorporate his circuit
court petitions. Respondent reiterates our prior sentiment that, “[a] skeletal ‘argument,’ really
nothing more than an assertion, does not preserve a claim . . . Judges are not like pigs, hunting
for truffles buried in briefs.” State Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466
S.E.2d 827, 833 (1995). In light of petitioner’s skeletal argument to incorporate any arguments
formulated below, we proceed by only reviewing the developed arguments contained in
petitioner’s petition on appeal.
1
  Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have replaced
the original respondent’s name, Adrian Hoke, with Marvin Plumley, who is the present warden
of Huttonsville Correctional Center.

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        First, Petitioner Rash argues that he was prejudiced by a seventeen-year delay before he
was indicted on the sexual abuse charges for which he was later convicted. He argues that his
trial counsel was ineffective in failing to move to dismiss his case based on this issue and that the
trial court committed plain error by failing to conduct a hearing, sua sponte, on this issue. In
response, Respondent Warden contends that petitioner has failed to prove any error by the circuit
court in its determinations of this issue or show that he was prejudiced from any delay in this
case. Second, petitioner argues that he was provided ineffective assistance of counsel because
there was a “prosecutorial overmatch,” asserting that the prosecuting attorney at trial had
experience with numerous sexual abuse cases, whereas his trial counsel had no experience in this
area prior to petitioner’s case. In response, Respondent Warden offers our prior holding on this
issue: “‘The gravamen of any ‘prosecutorial overmatch’ claim is proof of ineffectiveness of
counsel as determined by reference to the trial record.’ Syl. pt. 1, Acord v. Hedrick, [176] W.Va.
[154], 342 S.E.2d 120 (1986).” Syl. Pt. 1, State v. Collins, 177 W.Va. 514, 354 S.E.2d 610
(1987). Respondent argues that petitioner has failed to prove any prosecutorial overmatch
outside of his argument that his trial counsel failed to file a motion to dismiss the indictment due
to the delay. Respondent further highlights that petitioner’s trial counsel secured a hung jury
before the case was tried the second and final time in May of 2007.

       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).

       With regard to arguments concerning pre-indictment delay, we have held as follows: “To
maintain a claim that preindictment delay violates the Due Process Clause of the Fifth
Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia
Constitution, the defendant must show actual prejudice.” Syl. Pt. 2, State ex rel. Knotts v.
Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).

       The following standard is applied to claims concerning ineffective assistance of counsel:

       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.




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Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

        Our review of the record uncovers no error by the circuit court in denying habeas corpus
relief to petitioner based on his arguments on appeal. The circuit court’s order reflects its
thorough analysis concerning petitioner’s argument with regard to pre-indictment delay and
concerning petitioner’s argument with regard to his trial counsel’s performance. Having
reviewed the circuit court’s “Order Denying Petitioner’s Petition for Writ of Habeas Corpus”
entered on March 30, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions as to the assignments of error raised in this appeal. The Clerk is
directed to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.


                                                                                      Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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