                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

Robert Watring,
Petitioner Below, Petitioner                                                          FILED
                                                                                  March 15, 2019
vs.) No. 18-0200 (Preston County 17-C-81)                                        EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
John Anderson, Superintendent,
Salem Correctional Center and Jail,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Robert Watring, by counsel Jeremy B. Cooper, appeals the Circuit Court of
Preston County’s February 28, 2018, order denying his amended petition for a writ of habeas
corpus. Respondent John Anderson, Superintendent, by counsel Caleb A. Ellis, filed a response.1
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his
habeas petition, asserting that the prosecutor suppressed helpful evidence and that he had
ineffective assistance of 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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        In March of 2015, petitioner was indicted on two counts of wanton endangerment involving
a firearm, one count of malicious assault, one count of child abuse creating risk of injury, and one
count of driving while license suspended or revoked for driving under the influence (“DUI”). 2 At
petitioner’s trial on these charges, the victim, petitioner’s ex-wife, testified that petitioner arrived
at her home intoxicated after she ignored his repeated attempts to reach her by phone. Upon his
arrival petitioner began continually ringing the doorbell and beating on the door. Knowing that

       1
         Petitioner listed Spencer Hill, former Acting Warden of Anthony Correctional Center, as
respondent in this matter; however, petitioner is currently housed at Salem Correctional Center
and Jail, at which John Anderson is Superintendent. The appropriate party has been substituted per
Rule 41(c) of the Rules of Appellate Procedure. Additionally, effective July 1, 2018, the positions
formerly designated as “wardens” are now designated “superintendents.” See W. Va. Code § 15A-
5-3.
       2
       Prior to trial, the charges of child abuse creating risk of injury and driving while license
suspended or revoked for DUI were dismissed by agreed order.
                                                   1
petitioner would not stop until let inside the home, the victim opened her door. After several
minutes inside the home, petitioner pointed a .22 caliber youth rifle at the victim’s head. Petitioner
reportedly told the victim he was “going to put her to sleep” and then pointed the rifle at her chest.
Petitioner also choked the victim several times over an approximate five-minute period. The victim
testified that she was unable to breathe while petitioner choked her, but when petitioner eased his
grip, she yelled for help. While choking the victim, petitioner told her she “better pray that [her
son] has a good life” without her. The victim testified that she feared for her life.

        During the victim’s testimony, she reported that the investigating officer took pictures of
her neck, which had “just red marks,” and eyeglasses, which were crooked from the altercation.
Petitioner’s counsel requested a bench conference outside the presence of the jury, and she
informed the circuit court that she was unaware any pictures had been taken, despite discovery
requests. The prosecutor stated that he, too, did not have the pictures. The investigating officer
reported to the court that “[e]vidently, [they] didn’t get transferred over.” The prosecutor stated
that he had no intention of introducing the photographs, and the trial resumed.

        Carl W. Morgan Jr. testified that he received a call from his mother-in-law, who lived in
the victim’s apartment complex. Mr. Morgan’s mother-in-law informed him that a woman was
screaming for help and being beaten. Mr. Morgan, who lived down the street from the victim, went
to the victim’s home and began “pound[ing] on the door.” The victim’s son opened the door, and
Mr. Morgan observed petitioner in the victim’s apartment “smacking [the victim] back in” the
bathroom, which she was attempting to exit. Petitioner then pointed the rifle at Mr. Morgan before
exiting the home and driving away.

        At the close of evidence, the jury found petitioner guilty of two counts of wanton
endangerment involving a firearm and one count of malicious assault. The circuit court sentenced
petitioner to a determinate term of five years of incarceration for each wanton endangerment
involving a firearm conviction and an indeterminate term of two to ten years for his malicious
assault conviction. Petitioner’s sentences were further ordered to run consecutively.

         Petitioner filed a motion for a new trial asserting, among other things, that the State’s
failure to disclose the photographs amounted to a violation of his right to due process under Brady
v. Maryland, 373 U.S. 83 (1963); that the failure to disclose amounted to a violation of Rule 16 of
the West Virginia Rules of Criminal Procedure; and that the eventual, post-trial disclosure
constituted newly discovered evidence entitling him to a new trial.3 The circuit court denied
petitioner’s motion for a new trial, and on October 11, 2016, we affirmed the circuit court’s denial
of that motion. State v. Watring, No. 15-0932, 2016 WL 5900709 (W. Va. Oct. 11,
2016)(memorandum decision).

        Following this Court’s decision, petitioner filed a pro se petition for a writ of habeas corpus
on July 14, 2017. The circuit court appointed counsel, and through counsel, petitioner filed an
amended petition asserting as grounds for relief coerced confession, suppression of helpful
evidence by the prosecutor, ineffective assistance of counsel, constitutional errors in evidentiary
rulings, improper jury instructions, prejudicial statements by the prosecution, and sufficiency of
       3
           Petitioner received the photographs four days after his sentencing.

                                                   2
the evidence. The parties appeared for an omnibus evidentiary hearing on January 22, 2018, and
the circuit court denied petitioner habeas relief by order entered on February 28, 2018. It is from
this order that petitioner appeals.

       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.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va.
       417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

        On appeal, petitioner challenges only the circuit court’s rulings on his suppression of
favorable evidence by the prosecutor and ineffective assistance of counsel claims. First, petitioner
argues that the State’s failure to produce the photographs of the victim’s injuries constitutes a due
process violation. See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.); syl. pt. 4, State v. Hatfield, 169 W. Va. 191, 289 S.E.2d 402 (1982) (“A prosecution
that withholds evidence which if made available would tend to exculpate an accused by creating a
reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the
West Virginia Constitution.”).4 Petitioner argues that the pictures are exculpatory in the context of
a lesser-included offense instruction. Specifically, petitioner’s “trial strategy [was] to profess
complete innocence to the accusations[,]” and his trial counsel testified at his omnibus evidentiary
hearing that petitioner was not amenable to requesting an instruction on lesser-included offenses
of malicious assault. But trial counsel also testified that once she saw the photographs, she did not
believe they supported a malicious assault conviction and, instead, thought “they might go to a
lesser included domestic battery.” Trial counsel further stated that had she seen the pictures in
advance of trial, “it would’ve given [her and petitioner] an opportunity to revisit the question of
the lesser included.” Petitioner also argues that if the photographs had been published to the jury,
“[n]o reasonable juror, even in the light most favorable to the prosecution, could have found that



       4
           Additionally,

             [a] police investigator’s knowledge of evidence in a criminal case is
       imputed to the prosecutor. Therefore, a prosecutor’s disclosure duty under Brady v.
       Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v. Hatfield,
       169 W.Va. 191, 286 S.E.2d 402 (1982) includes disclosure of evidence that is
       known only to a police investigator and not to the prosecutor.

Syl. Pt. 1, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007).
                                                 3
a man of the [p]etitioner’s size and strength intended to kill the alleged victim based upon such
visually marginal injuries.”5

        Petitioner, however, also acknowledges that this Court previously found that the
photographs were not favorable to him as exculpatory or impeachment evidence and that he had,
therefore, not established a Brady violation. Watring, 2016 WL 5900709 at *3. In denying
petitioner relief on this ground, the habeas court found that reconsideration was prohibited under
the law of the case doctrine. Petitioner urges this Court to decline to apply that doctrine because
testimony elicited from the prosecutor and trial counsel constitutes “material changes in the facts
since the prior appeal.”

       We have previously held that

                [t]he law of the case doctrine “generally prohibits reconsideration of issues
       which have been decided in a prior appeal in the same case, provided that there has
       been no material changes in the facts since the prior appeal, such issues may not
       be relitigated in the trial court or re-examined in a second appeal.” . . . “[T]he
       doctrine is a salutary rule of policy and practice, grounded in important
       considerations related to stability in the decision making process, predictability of
       results, proper working relationships between trial and appellate courts, and judicial
       economy.”

State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W. Va. 802, 808, 591 S.E.2d 728, 734 (2003)
(citations omitted) (emphasis added). In other words, “[t]he general rule is that when a question
has been definitively determined by this Court its decision is conclusive on parties, privies and
courts, including this Court, upon a second appeal and it is regarded as the law of the case.” Id.
(citing syl. pt. 1, Mullins v. Green, 145 W. Va. 469, 115 S.E.2d 320 (1960)).

       Additionally, in State v. Youngblood, we held that

               [t]here are three components of a constitutional due process violation under
       Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State
       v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must
       be favorable to the defendant as exculpatory or impeachment evidence; (2) the
       evidence must have been suppressed by the State, either willfully or inadvertently;
       and (3) the evidence must have been material, i.e., it must have prejudiced the
       defense at trial.

221 W. Va. 20, 22, 650 S.E.2d 119, 121, syl. pt. 2 (2007). We have defined “exculpatory evidence”
as “that which would tend to show freedom from fault, guilt or blame.” Buffey v. Ballard, 236 W.


       5
         An individual is guilty of malicious assault when the person “maliciously shoots, stabs,
cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim,
disfigure, disable or kill.” W. Va. Code § 61-2-9(a). The prosecutor indicated at petitioner’s
omnibus evidentiary hearing that, to the best of his recollection, he argued to the jury that petitioner
possessed the intent to kill rather than to maim, disfigure, or disable.
                                                   4
Va. 509, 524, 782 S.E.2d 204, 219 (2015) (citation omitted); see also Hatfield, 169 W. Va. at 192,
286 S.E.2d at 404, syl. pt. 4 (“A prosecution that withholds evidence which if made available
would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due
process of law under Article III, Section 14 of the West Virginia Constitution.”); United States v.
Agurs, 427 U.S. 97, 112 (1976) (defining exculpatory in terms of whether “the omitted evidence
creates a reasonable doubt that did not otherwise exist”).

         In petitioner’s prior appeal, we found “no indication in the record that the photographs,
which undisputedly depict injuries to the victim’s body and property, are exculpatory or
impeachment material.” Watring, 2016 WL 5900709 at *3. We found, instead, that “the
photographs appear to be wholly consistent with the testimony of [the State’s] witnesses at trial
regarding the victim’s injuries, which were said to be redness around the throat area and broken
glasses.” Id. Trial counsel’s testimony regarding an opportunity to “revisit the question of [whether
to seek an instruction on a] lesser included [offense]” does not change the character of the
photographs. Rather, they remain corroborative of trial witnesses’ testimony, including the
victim’s, regarding the marks left by petitioner’s strangulation of the victim. In other words, the
photographs remain inculpatory despite trial counsel’s testimony. Therefore, we find no error in
the circuit court’s finding that this claim is barred from reconsideration.6

        In petitioner’s final assignment of error, he asserts that trial counsel rendered ineffective
assistance. Petitioner conclusorily states that trial counsel mishandled “the mid-trial photograph
situation,” failed to move for a judgment of acquittal, and “failed to object to a line of questioning
by the State that had been excluded during pretrial litigation,”7 all of which “is sufficient for a
finding that each prong of [the] Strickland test was fulfilled.”

       In West Virginia, 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.
       6
          Additionally, West Virginia Code § 53-4A-1(a) prohibits the pursuit of habeas relief on
grounds that have been “previously and finally adjudicated . . . in the proceedings which resulted
in the conviction and sentence, . . . or in any other proceeding or proceedings which the petitioner
has instituted to secure relief from such conviction or sentence.” As used in that statute,
“previously and finally adjudicated” means “there was a decision on the merits thereof after a full
and fair hearing thereon” in, among others, a proceeding “instituted by the petitioner to secure
relief from his conviction or sentence.” Id. § 53-4A-1(b). Because this claim was previously and
finally adjudicated in Watring, we also find that it was properly disposed of under West Virginia
Code § 53-4A-1.
       7
        Petitioner fails to specifically identify this questioning; instead, he cites to the appendix
record. The citation is to trial counsel’s testimony at petitioner’s omnibus evidentiary hearing
concerning “questions by the State in which [petitioner’s] history of having a protective order may
have been made apparent to the jury.”
                                                  5
Syl. Pt. 5, in part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Further, an ineffective
assistance of counsel claim may be disposed of for failure to meet either prong of the test. Syl. Pt.
5, in part, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995); see also State
ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 17, 528 S.E.2d 207, 213 (1999)
(citation omitted) (“Failure to meet the burden of proof imposed by either part of the
Strickland/Miller test is fatal to a habeas petitioner’s claim.”).

         Here, petitioner simply concludes that “[t]he evidence of these three omissions is sufficient
for a finding that each prong of [the] Strickland test was fulfilled,” without providing any analysis
in support of that conclusion. Specifically, he fails to demonstrate that the outcome of his trial
would have been different had trial counsel requested a recess to review the photos, particularly
given this Court’s finding that the photos were not exculpatory; moved for judgment of acquittal,
given that petitioner filed post-trial motions; or objected to certain testimony, again given
petitioner’s post-trial motions addressing the allegedly improperly introduced testimony.8
Accordingly, we find no error in the circuit court’s denial of habeas relief on this ground. See also
State ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833
(1995) (citation omitted) (“[A] skeletal ‘argument’, really nothing more than an assertion, does not
preserve a claim . . . .”).

        For the foregoing reasons, we affirm the circuit court’s February 28, 2018, order denying
petitioner’s amended petition for a writ of habeas corpus.

                                                                                           Affirmed.

ISSUED: March 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




       8
        At a hearing on petitioner’s post-trial motions, trial counsel conceded that there was no
testimony regarding a protective order introduced at trial. The habeas court, “[u]pon further review
of the [p]etitioner’s trial testimony . . . once again f[ound] and conclude[d] that there was no
mention of a protective order during the State’s cross-examination of [p]etitioner.”
                                                  6
