                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



Robert McDonald, Petitioner Below,                                                     FILED
Petitioner                                                                             April 16, 2013
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 12-0493 (Kanawha County 11-MISC-187)                                        OF WEST VIRGINIA


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


                                 MEMORANDUM DECISION

       Petitioner Robert McDonald, by counsel Scott Driver, appeals the March 21, 2012 order
of the Circuit Court of Kanawha County denying his petition for writ of habeas corpus.
Respondent Plumley, by counsel Andrew D. Mendelson, has filed a response.1

       The 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, petitioner was sentenced in July of 2009 to a term of incarceration
of ten to twenty years for his conviction of one count of sexual abuse by a parent, guardian, or
custodian, and a term of incarceration of one to five years for his conviction of one count of third
degree sexual assault, said sentences to run consecutively. Petitioner thereafter filed a direct
criminal appeal which was refused by this Court. Petitioner then filed a petition for writ of habeas
corpus in the circuit court and was appointed counsel to represent him in that proceeding. On
March 21, 2012, after holding an omnibus hearing, the circuit court denied the petition for writ of
habeas corpus.

       On appeal, petitioner alleges that the circuit court erred in denying him habeas relief
because he received ineffective assistance of counsel, the State failed to seek out and disclose
potentially exculpatory evidence, and the prosecuting attorney made several allegedly improper
and prejudicial remarks during closing argument at trial. In support, petitioner argues that his
counsel was ineffective because he failed to adequately communicate with petitioner, failed to
adequately investigate and ultimately call certain persons as witnesses, and failed to request a
       1
         Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, the name of
the current public officer has been substituted as a respondent in this action.

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psychological examination. Further, petitioner alleges that the State could have obtained
correspondence in which the victim claimed that her father, and not petitioner, perpetrated the
sexual abuse, and that the prosecutor made remarks so prejudicial and inflammatory that he was
denied the right to a fair trial.

        Respondent argues that the circuit court did not abuse its discretion in making any of the
findings from its order denying petitioner habeas relief. Specifically, the State argues that
petitioner’s counsel adequately represented him and petitioner failed to show that, but for
counsel’s allegedly ineffective representation, the outcome of trial would have been different.
Further, the State argues that petitioner offered no evidence that any such exculpatory evidence
even existed, and further that the allegedly prejudicial remarks from the prosecutor were properly
based on trial testimony and spoke to the credibility of witnesses. For these reasons, respondent
supports the circuit court’s order and seeks to have the same affirmed.

       This Court has 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). After careful consideration
of the parties’ arguments, this Court concludes that the circuit court did not abuse its discretion in
denying the petition for writ of habeas corpus. Having reviewed the circuit court’s “Final Order
Denying Petitioner’s Amended Petition For Writ Of Habeas Corpus” entered on March 21, 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.2 The Clerk is directed to attach a copy of the circuit
court’s order to this memorandum decision.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
March 21, 2012, order denying the petition for writ of habeas corpus is affirmed.

                                                                                           Affirmed.




       2
         In keeping with this Court’s policy of protecting the identity of minors and victims of
sexual crimes, the circuit court order has been redacted to remove the identity of the victim.
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ISSUED: April 16, 2013

CONCURRED IN BY:

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

DISSENTING:

Justice Menis E. Ketchum




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