                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Richard M.,                                                                             FILED
Petitioner Below, Petitioner                                                        November 6, 2015
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs)    No. 15-0148 (Harrison County l3-C-97-3)                                       OF WEST VIRGINIA



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



                               MEMORANDUM DECISION
       Petitioner Richard M.,1 pro se, appeals the order of the Circuit Court of Harrison County,
entered February 10, 2015, denying his second petition for a writ of habeas corpus. Respondent
Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Nic Dalton, filed a
response.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner was indicted on various sexual molestation charges. The charges against
petitioner involved O.G., the granddaughter of his girlfriend. Petitioner’s trial began on July 28,
2008. On July 29, 2008, the jury convicted petitioner of one count of sexual abuse by a parent,
guardian, custodian, or a person in a position of trust pursuant to West Virginia Code § 61-8D-5(a)
and one count of sexual abuse in the first degree pursuant to West Virginia Code § 61-8B-7(a)(3).




       1
         Consistent with our practice in cases involving sensitive facts, we use only petitioner’s
first name and last initial, and identify the minor victim only by her initials. W.Va. Rul. App. Proc.
40(e)(1); see State ex rel. W.Va. Dep’t of Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356
S.E.2d 181, 182 n. 1 (1987).


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        Petitioner’s trial counsel, Attorney Wiley Newbold, filed post-trial motions on petitioner’s
behalf for a new trial and for a judgment of acquittal. However, after these motions were filed,
Thomas G. Dyer and Dyer Law Offices were privately retained to represent petitioner in the
post-trial proceedings and for purposes of appeal. Consequently, Attorney Thomas G. Dyer
represented petitioner at the September 11, 2008, hearing on petitioner’s post-trial motions, at
which the circuit court denied the motions. The circuit court subsequently sentenced petitioner to
concurrent terms of imprisonment of ten to twenty years.

         Subsequently, Attorney Thomas G. Dyer advised petitioner that “there are no
non-frivolous grounds for a direct appeal” and that accordingly, petitioner should allow the time
for a direct appeal to lapse and concentrate on filing a petition for a writ of habeas corpus. Attorney
Mary Guy Dyer wrote petitioner separate letters on June 17, 2009, and August 18, 2009. In her
June 17, 2009, letter, Attorney Mary Guy Dyer noted that petitioner’s primary contention was that
Attorney Newbold had been ineffective as trial counsel, which is a claim that is best litigated in a
collateral proceeding.2 In her August 18, 2009, letter, Attorney Mary Guy Dyer noted that counsel
had to explain their recommended course of action to petitioner more than once to obtain
petitioner’s agreement, but that petitioner eventually “decided not to appeal” his conviction and
sentence.

         Petitioner filed a pro se habeas petition on August 21, 2009, and the circuit court thereafter
appointed Attorney Thomas G. Dyer to represent petitioner in the habeas proceeding. Attorney
Thomas G. Dyer filed an amended petition and represented petitioner at an omnibus hearing held
on March 31, 2010, and April 1, 2010. At the beginning of that hearing, the circuit court
cautioned—and petitioner acknowledged—that petitioner had an obligation to raise all his grounds
for relief in one habeas proceeding:

       THE COURT:           . . . [Petitioner], have you, after consulting with your
       attorney, Thomas Dyer, in this case, raised in your Amended Petition for a [Writ of]
       Habeas Corpus, all grounds that you believe would entitled to a Writ of Habeas
       Corpus?

       [PETITIONER]:           Yes, Your Honor.

       THE COURT:               Do you understand that you have the obligation in an
       Omnibus Hearing for a Petition for a Writ of Habeas Corpus for post-conviction
       relief, that you raise all grounds for post-conviction relief in one (1) proceeding?[3]

       [PETITIONER]:           Yes, Your Honor.


       2
           See n. 8 infra.
       3
      Syl. Pt. 1, Gibson v. Dale, 173 W.Va. 681, 683-84, 319 S.E.2d 806, 808 (1984); Losh v.
McKenzie, 166 W.Va. 762, 764, 277 S.E.2d 606, 609 (1981).

                                                  2

Later in the hearing, after respondent’s counsel inquired of the circuit court whether it was
necessary to address issues that petitioner did not raise in the presentation of his case, the court
confirmed that any issue on which “[petitioner] hasn’t presented” evidence would be deemed
waived. The hearing transcript further reflects that petitioner was allowed to confer with counsel
throughout the hearing.4

        The circuit court denied habeas relief in an order entered July 1, 2010. In its order, the
circuit court memorialized that it “cautioned [petitioner] at the onset of the hearing that any
grounds not raised in this hearing would be deemed waived” and that “[petitioner] chose not to
present any further evidence and he chose not to proffer any evidence concerning” some grounds.5
Petitioner subsequently appealed pro se to this Court, which affirmed the denial of habeas relief.
[Richard M.] v. Ballard, No. 11-0606, at 5 (W.Va. Supreme Court, November 30, 2012)
(memorandum decision). In Richard M., this Court declined to address petitioner’s allegation that
Attorney Thomas G. Dyer had been ineffective as habeas counsel because petitioner was raising
the issue in the same proceeding in which Attorney Dyer had served as habeas counsel. Id. This
Court explained that the preferred way of raising ineffective assistance of habeas counsel is to file
a subsequent petition for a writ of habeas corpus raising the issue in the circuit court. Id.

         Petitioner filed a habeas petition on March 13, 2013, alleging that Attorney Thomas G.
Dyer had been ineffective as habeas counsel. The circuit court appointed Jason T. Gain to
represent petitioner, and Attorney Gain filed an amended petition on August 27, 2014. Petitioner
filed a pro se supplement to the amended petition on September 15, 2014. On November 19, 2014,
the circuit court held a hearing and, thereafter, denied habeas relief in an order entered on February
10, 2015. In its order, the circuit court explained that it was considering only (1) Attorney Thomas
G. Dyer’s alleged ineffectiveness as habeas counsel; and (2) Attorney Newbold’s alleged
ineffectiveness as trial counsel “for the narrow purpose of assessing the effectiveness of [Attorney
Dyer’s] performance.”6 The circuit court determined that “[a]ll other claims for [h]abeas relief
have either been waived or are barred by res judicata.” The circuit court then addressed
petitioner’s arguments that Attorney Thomas G. Dyer was ineffective in not raising two instances
in which Attorney Newbold failed to raise a claim that petitioner was not promptly presented to a
magistrate for arraignment and failed to raise a claim that the jury instructions were erroneous. The
circuit court found that neither of those issues had merit and, therefore, trial counsel was not

       4
        While petitioner asserts that he was not afforded effective assistance at the first habeas
hearing, Attorney Thomas G. Dyer called three witnesses in addition to petitioner, including
presenting the testimony of petitioner’s trial counsel.
       5
           The circuit court did not specify the issues on which petitioner failed to present evidence.
       6
         In Richard M., this Court rejected petitioner’s claim that Attorney Newbold was
ineffective as trial counsel. No. 11-0606, at 2-3. Our memorandum decision in Richard M.
constitutes a ruling on the merits pursuant to Rule 21(a) of the West Virginia Rules of Appellate
Procedure.


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ineffective in not raising them. The circuit court concluded that habeas counsel, Attorney Thomas
G. Dyer, was likewise not ineffective.

       Petitioner now appeals the circuit court’s denial of his habeas petition. We apply the
following standard of review in habeas cases:

               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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006). Also, in West
Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (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, 6, 459 S.E.2d 114, 117 (1995).

         On appeal, the parties dispute whether petitioner is attempting to argue ordinary trial error
in the guise of ineffective assistance of habeas counsel. A habeas corpus proceeding is not a
substitute for an appeal “in that ordinary trial error not involving constitutional violations will not
be reviewed.” Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 130, 254 S.E.2d 805,
806 (1979), cert. denied, 464 U.S. 831 (1983). More broadly, petitioner contends that Attorney
Thomas G. Dyer, in his capacity as appellate counsel, improperly coerced petitioner into not filing
a direct appeal as was his right.7 Upon our review of the record, we disagree that petitioner was
coerced into not pursuing a criminal appeal. Rather, the record reflects that after extensive
discussions with counsel, petitioner decided not to appeal, but has now come to regret that
decision. While petitioner alleges that counsel engaged in unethical persuasion, the June 17, 2009,
letter reflects that counsel’s advice was legally sound.8 Therefore, we conclude that petitioner may

       7
       Syl., State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972) (criminal
defendant has a right to appeal).
       8
         In Syllabus Point 10 of State v. Triplett, 187 W.Va. 760, 762-63, 421 S.E.2d 511, 513-14
(1992), this Court held as follows:

               It is the extremely rare case when this Court will find ineffective assistance
       of counsel when such a charge is raised as an assignment of error on a direct appeal.
       The prudent defense counsel first develops the record regarding ineffective
       assistance of counsel in a habeas corpus proceeding before the lower court, and
       may then appeal if such relief is denied. This Court may then have a fully
       developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.

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not argue ordinary trial error as part of this habeas proceeding.

        The circuit court found that within the context of asserting that habeas counsel failed to
raise two instances of ineffective representation by trial counsel, petitioner could still argue (1)
petitioner was not promptly presented to a magistrate for arraignment; and (2) the jury instructions
were erroneous. As to the prompt presentment claim, “[t]he delay occasioned by reducing an oral
confession to writing ordinarily does not count on the unreasonableness of the delay where a
prompt presentment issue is involved.” Syl. Pt. 3, State v. Humphrey, 177 W.Va. 264, 265, 351
S.E.2d 613, 614 (1986). We first note that because we found in Richard M. that petitioner’s
statements to the police were voluntary,9 petitioner may not assert that the police coerced him into
making the statements. Second, the circuit court found that the taped statement was identical to the
prior oral statement. Accordingly, we determine that the case comes squarely under Syllabus Point
3 of Humphrey and conclude that the circuit court did not clearly err in finding that neither trial or
habeas counsel was ineffective in not raising this issue in the prior proceedings.

        As to the allegedly erroneous jury instructions, we first find that the circuit court
adjudicated a different claim than the one petitioner asserts on appeal. The circuit court determined
that the jury was properly instructed as to the definition of an element necessary to convict
petitioner pursuant to West Virginia Code § 61-8D-5(a). Based on a review of petitioner’s appeal
documents, we find that petitioner assigns no error to that determination. Rather, on appeal,
petitioner argues that the jury was improperly instructed as to the voluntariness of his statements to
the police. We determine that this argument has been rendered moot by our finding in Richard M.
that the statements petitioner provided were voluntary. Therefore, we conclude that neither trial or
habeas counsel was ineffective in not raising the issue of allegedly erroneous jury instructions.

        Finally, we determine that the circuit court did not err in finding that “[a]ll other claims for
[h]abeas relief have either been waived or are barred by res judicata” pursuant to either Syllabus
Point 4 of Mohn and/or Syllabus Point 2 of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606, 608
(1981), in which this Court held, as follows:

               A judgment denying relief in post-conviction habeas corpus is res judicata
       on questions of fact or law which have been fully and finally litigated and decided,
       and as to issues which with reasonable diligence should have been known but were
       not raised, and this occurs where there has been an omnibus habeas corpus hearing
       at which the applicant for habeas corpus was represented by counsel or appeared
       pro se having knowingly and intelligently waived his right to counsel.

        Petitioner challenges the circuit court’s ruling that the doctrine of res judicata generally
barred his second habeas petition as to two issues. First, petitioner asserts that Attorney Thomas G.
Dyer was ineffective in not raising the issue of a “biased jury” in the first habeas proceeding. Syl.
Pt. 4, Id., at 762-63, 277 S.E.2d at 608 (ineffective assistance of habeas counsel constitutes
exception to doctrine of res judicata). We find that the circuit court foresaw petitioner making this
        9
            Richard M., No. 11-0606, at 3.

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argument in its July 1, 2010, order denying petitioner’s first petition. In that order, the circuit court
memorialized that it “cautioned [petitioner] at the onset of the hearing that any grounds not raised
in this hearing would be deemed waived” and that “[petitioner] chose not to present any further
evidence and he chose not to proffer any evidence concerning” some grounds. Our review of the
transcript of the first habeas hearing confirms that not only did the circuit court warn petitioner of
his obligation to assert all arguably meritorious issues, but also that petitioner acknowledged that
obligation by answering, “Yes, Your Honor.” The transcript further confirms that petitioner was
allowed to confer with counsel throughout the hearing. Thus, we find that petitioner had adequate
opportunity at the first habeas hearing to raise any issue he desired—including any issue about a
“biased jury”—and, accordingly, that the doctrine of res judicata bars petitioner from raising that
issue now.10

         Second, petitioner asserts that a report based on a child advocate’s interview with the minor
victim constitutes newly discovered evidence. Syl. Pt. 4, Losh, 166 W.Va. at 762-63, 277 S.E.2d at
608 (such evidence constitutes another exception to doctrine of res judicata). Respondent counters
that the report is not newly discovered because (1) the report was turned over to petitioner in the
first habeas proceeding (in fact, the report was discussed in the circuit court’s July 1, 2010, order
denying habeas relief); and (2) the victim’s statements contained within the report were consistent
with her trial testimony. Syl., State v. Frazier, 162 W.Va. 935, 935-36, 253 S.E.2d 534, 534-35
(1979) (due diligence and potential effect on outcome of trial are factors in determining whether
newly discovered evidence exists). Based on our review of the child advocate’s report and the
record as a whole, we find that the report does not constitute newly discovered evidence.
Therefore, we determine that the doctrine of res judicata bars petitioner from making any argument
based on the child advocate’s report and accordingly conclude that the circuit court did not abuse
its discretion in denying petitioner’s second habeas petition.

        For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: November 6, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
        10
          Also, if we were to allow petitioner to raise this issue, we would unduly prejudice
respondent’s rights given that, when respondent’s counsel inquired during the first habeas hearing
whether it was necessary to address issues that petitioner did not raise in the presentation of his
case, the circuit court confirmed that any such issue would be deemed waived.

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