                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Randall Jeffrey L.,                                                              FILED
Petitioner Below, Petitioner                                                   September 3, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 12-1196 (Mercer County 11-C-93)                                       OF WEST VIRGINIA


Marvin Plumley, Warden,
Respondent Below, Respondent

                                MEMORANDUM DECISION

        Petitioner Randall Jeffrey L.’s appeal, filed by counsel Paul R. Cassell, arises from the
Circuit Court of Mercer County, which denied petitioner post-conviction habeas corpus relief by
order entered on September 12, 2012.1 Respondent Marvin Plumley, Warden, by counsel
Benjamin F. Yancey III, filed a response.2 Petitioner thereafter filed a reply. On appeal,
petitioner argues that he received ineffective assistance from his first habeas corpus counsel.

       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.

         Petitioner was convicted of various sexual offenses in 2000. His first petition for post-
conviction habeas corpus relief was denied in 2002. The circuit court denied petitioner’s second
petition for post-conviction habeas corpus relief in 2012. Petitioner now appeals this order.

       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
       1
         Because the underlying criminal matter involves sensitive facts in which the minor
victim was related to petitioner, we have redacted petitioner’s last name to protect the victim’s
identity. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1
(1990).
       2
        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 where petitioner resides.

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       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). 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.

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

        Petitioner raises the same arguments on appeal that he raised in circuit court. Petitioner
argues that the circuit court erred in finding that his prior habeas counsel was not ineffective.
Petitioner contends that his prior habeas counsel provided deficient performance by failing to
assert four ways in which petitioner’s trial counsel was ineffective: (1) trial counsel’s failure to
admit evidence concerning petitioner’s scar and tattoo; (2) trial counsel’s confusion of evidence
concerning a custody battle over the victim, which petitioner asserts could have been a reason for
the victim to lie about the alleged sexual abuse for which petitioner was convicted; (3) trial
counsel’s failure to request a cautionary instruction with regard to evidence concerning improper
flight from the criminal trial; and (4) trial counsel’s failure to admit evidence concerning
petitioner’s lack of lustful disposition towards children, petitioner’s competency, an alleged
breaking and entering at a church, and inadequate review of the Losh checklist.3

        Upon our review of the record and the briefs on appeal, we find no error or abuse of
discretion by the circuit court. All of the issues petitioner raises on appeal were issues addressed
and discussed by the circuit court in its order denying petitioner post-conviction habeas corpus
relief. Petitioner raises nothing new that support his arguments. Having reviewed the circuit
court’s “Order,” entered on September 12, 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 opinion letter and order to this
memorandum decision.4

       For the foregoing reasons, we affirm.


                                                                                           Affirmed.
       3
        The checklist of grounds typically used in habeas corpus proceedings, commonly known
as “the Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
       4
         Consistent with the first footnote of this Memorandum Decision, we have redacted the
circuit court’s order to protect the victim’s identification, using an initial for petitioner’s last
name and only initials to reference other family members.

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ISSUED: September 3, 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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