                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Bobby Ross II, Petitioner Below,                                                        FILED
Petitioner                                                                            March 31, 2014
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 13-0617 (Kanawha County 06-MISC-291)                                        OF WEST VIRGINIA


Marvin Plumley, Warden, Huttonsville
Correctional Center, Respondent Below, Respondent


                                  MEMORANDUM DECISION

       Petitioner Bobby Ross II, by counsel Lonnie C. Simmons and Olubunmi T. Kusimo,
appeals the Circuit Court of Kanawha County’s May 16, 2013, order denying his petition for writ
of habeas corpus. Respondent Warden Marvin Plumley, by counsel Julie A. Warren, filed a
response. On appeal, petitioner alleges that the circuit court erred in denying his petition for writ
of habeas corpus because his sentence for attempted aggravated robbery is unconstitutionally
disproportionate.

        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.

        Following a jury trial, petitioner was found guilty of first degree sexual abuse, burglary,
and attempted aggravated robbery in 1988. He was then sentenced to the following terms of
incarceration: one to five years for first degree sexual abuse; one to fifteen years for nighttime
burglary; and 100 years for attempted aggravated robbery. Petitioner appealed his convictions and
sentences. In State v. Ross, 184 W.Va. 579, 402 S.E.2d 248 (1990), the Court affirmed
petitioner’s convictions and specifically found that the 100 year sentence for aggravated robbery
was not unconstitutionally disproportionate.

        After petitioner initiated a habeas corpus action in the circuit court, the circuit court denied
the petition in August of 2008. However, after having new counsel appointed in the habeas
proceeding below, petitioner requested that the matter be re-opened so that he could take
testimony from trial counsel. By order entered on December 12, 2009, the circuit court re-opened
the habeas proceeding and allowed petitioner to take testimony from his trial counsel.
Additionally, petitioner’s habeas attorney petitioned this Court to amend its prior decision in
Ross, which stated that petitioner was convicted of first degree sexual assault when he was
actually convicted of first degree sexual abuse. By order entered on July 13, 2011, the Court did

                                                       1
­
amend its prior opinion. Petitioner’s counsel then filed an amended petition for writ of habeas
corpus in the circuit court and an omnibus hearing was held on November 17, 2011. By order
entered on April 3, 2013, the circuit court entered an order denying the petition. On May 16,
2013, the circuit court entered an amended order denying the petition and incorporating the
rulings from the August 28, 2008, order denying petitioner habeas relief. It is from this order that
petitioner appeals.

       We have previously held that

               “[i]n 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.” Syl. pt. 1, Mathena v. Haines,
       219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Thompson v. Ballard, 229 W.Va. 263, 728 S.E.2d 147 (2012). Upon our
review, we find no error in the circuit court denying the petition for writ of habeas corpus.1
Petitioner is correct that the standard for determining if a particular sentence is disproportionate to
the crime can change over time as society’s standards of decency evolve. See Atkins v. Virginia,
536 U.S. 304, 311-12, 122 S.Ct. 2242, 2247 (2002). However, petitioner fails to acknowledge that
this evolving standard and the case law to which he cites do not entitle petitioner to additional
review of issues that have been fully and fairly litigated.

       In discussing the application of res judicata to habeas corpus proceedings, we have stated
that

       [f]requently habeas corpus petitioners seek collateral review of evidentiary or
       constitutional questions, such as the admissibility of a confession or failure to
       exclude physical evidence, when those issues were fully and fairly litigated during
       the trial and a record of the proceedings is available. In that event a court may
       apply rules of res judicata in habeas corpus because the issue has actually been
       fully litigated.

Losh v. McKenzie, 166 W.Va. 762, 765, 277 S.E.2d 606, 609 (1981) (citing Call v. McKenzie, 159
W.Va. 191, 220 S.E.2d 665 (1975)). Further, in addressing this issue, we have stated that

       1
         In the circuit court habeas proceedings, petitioner raised multiple grounds for relief.
However, on appeal, petitioner alleges only that his sentence for attempted aggravated robbery is
unconstitutional. As such, the Court will address only this ground for relief in the memorandum
decision. Additionally, the circuit court denied petitioner relief in regard to his claim of an
unconstitutionally disproportionate sentence for attempted aggravated robbery because it found
that petitioner’s sentence did not shock the conscience. However, because the Court is affirming
the denial of the petition for writ of habeas corpus on separate grounds, we will not address this
finding.
                                                     2
­
       “W.Va.Code, 53–4A–1(d) [1967] 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.” Syllabus Point 1,
       Bowman v. Leverette, 169 W.Va. 589, 289 S.E.2d 435 (1982).

Syl. Pt. 3, State ex rel. Waldron v. Scott, 222 W.Va. 122, 663 S.E.2d 576 (2008).

        As such, it is clear that petitioner was not entitled to a second review of his sentence’s
constitutionality, since this Court has already fully and fairly litigated that issue and he has
pointed to no new substantive or procedural standards in criminal proceedings that are intended to
be applied retroactively. Specifically, in regard to petitioner’s 100-year sentence for attempted
aggravated robbery, we held that

       [i]n view of the nature of the offense committed, as well as the nature of the
       defendant’s character, his psychological profile, and his previous behavior, this
       Court cannot conclude that the attempted aggravated robbery sentence imposed
       upon him by the Circuit Court of Kanawha County violates the proportionality
       principle contained in Article III, § 5 of the West Virginia Constitution as alleged
       by the defendant or that his conviction should be reversed on the ground that the
       sentence is disproportionate.

Ross at 582, 402 S.E.2d at 251. This holding was based, in part, upon findings that petitioner
“seriously and violently intruded upon the victim’s personal space and person,” and that “there is
evidence that [petitioner] violently seized the victim, threatened her with a knife, and violently
forced her to engage in sexual activity against her will.” Id. As such, the Court finds no error in
the circuit court’s order denying petitioner relief because petitioner was not entitled to additional
review on the issue.

        For the foregoing reasons, the circuit court’s May 16, 2013, order denying petitioner’s
petition for writ of habeas corpus is hereby affirmed.

                                                                                          Affirmed.

ISSUED: March 31, 2014

CONCURRED IN BY:

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

                                                     3
­
