                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Robert M.,
Petitioner Below, Petitioner,
                                                                                    FILED
                                                                              November 20, 2015
                                                                               RORY L. PERRY II, CLERK
vs) No. 15-0002         (Kanawha County 13-P-522)                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

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


                               MEMORANDUM DECISION
       Petitioner Robert M., by counsel W. Jesse Forbes, appeals the December 5, 2014, order
of the Circuit Court of Kanawha County, that denied his amended petition for writ of habeas
corpus. Respondent Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel
Shannon Frederick Kiser, filed a response in support of the circuit court’s order. Petitioner
submitted a reply.

        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 on June 2-3, 2009, petitioner was convicted of sexual abuse by a
parent, guardian, custodian, or person in position of trust (Count One), and third degree sexual
assault (Count Two).1 He was sentenced to an indeterminate term of ten to twenty years on
Count One, and an indeterminate term of one to five years on Count Two. The sentences were
ordered to run consecutively. Petitioner was also ordered to serve a period of thirty years of
supervised release as a convicted sex offender pursuant to West Virginia Code § 62-12-26.2

        Petitioner was represented at trial by attorney John P. Sullivan. Upon a complaint filed by
petitioner, the State Bar’s Office of Disciplinary Counsel (“ODC”) admonished Sullivan for not
having sufficient contact with petitioner over the course of the proceedings; however, no findings
were made as to whether Sullivan provided ineffective assistance of counsel to petitioner at trial.
The ODC thereafter closed the complaint.

       1
           The victim was thirteen years old.
       2
         Petitioner’s direct appeal of his conviction and sentence was subsequently refused by
this Court.
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        Petitioner subsequently filed his first habeas petition in which he alleged ineffective
assistance of trial counsel, failure of the State to disclose potentially exculpatory evidence, and
improper prejudicial remarks by the prosecutor during closing argument. An omnibus hearing
was conducted on September 1, and 8, 2011. Petitioner was represented by habeas counsel Scott
Driver. Evidence was presented as to the ineffective assistance claim while the remaining two
grounds were submitted on the record as they presented no question of fact.

        Petitioner’s first petition for habeas relief was denied by order entered March 21, 2012.
Petitioner appealed the circuit court’s order to this Court. This Court subsequently affirmed and
adopted the circuit court’s order denying relief. See Robert M. v. Plumley, No. 12-0493 (W.Va.
Supreme Court, April 15, 2013) (memorandum decision).

        Thereafter, petitioner filed the present habeas petition alleging that prior habeas counsel
was ineffective for failing to adequately investigate petitioner’s case prior to the omnibus
hearing; failing to call certain witnesses to testify at his omnibus hearing; and failing to collect
and present evidence as to two grounds raised in his first habeas petition. He further alleged that,
but for these deficiencies, the results of his first habeas petition would have been different.3 At
the omnibus hearing conducted on June 26, 2014, and October 15, 2014, petitioner alleged the
additional grounds of first habeas counsel’s failure to offer into evidence a certain medical record
of the victim and records from MySpace.com, a social networking site, and counsel’s failure to
correct a mistake in the first habeas order. The circuit court again denied habeas relief. This
appeal followed.

       We review the circuit court’s order under the following standard of review:

               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).

        On appeal, petitioner raises six assignments of error in which he alleges that the habeas
court erred in finding that prior habeas counsel was not ineffective in (1) failing to move to
correct an error in the first habeas order entered March 12, 2012, which specifically referenced

       3
         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).


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certain evidence that was not admitted at trial; (2) failing to adequately investigate petitioner’s
case; (3) failing to call certain witnesses who could have offered “substantial impeachment
evidence” against the victim, her mother, and aunt; (4) failing to call an expert legal witness to
testify at the first omnibus hearing for the purpose of demonstrating that, but for trial counsel’s
inadequate investigation, a reasonable likelihood exists that the outcome of the trial would have
been different; (5) failing to question trial counsel regarding his (a) failure to introduce a certain
medical record of the victim at trial, (b) failure to introduce evidence and/or testimony regarding
the victim’s alleged recantation of the abuse on MySpace.com, and (c) failure to introduce
evidence and/or testimony of prior criminal convictions of the victim’s mother and aunt, who
were primary witnesses for the prosecution; and (6) failing to allow petitioner to call Heather M.
as a witness during the omnibus hearing in the present matter, as she could have testified
regarding the victim’s alleged recantation on MySpace.com.

        On appeal, petitioner reasserts several of the same claims that were rejected by the circuit
court. However, upon our review, we find that, notwithstanding petitioner’s argument to the
contrary, the habeas court’s December 5, 2014, order made no finding with respect to
petitioner’s fourth assignment of error—whether prior habeas counsel was ineffective for failing
to call an expert legal witness. Moreover, “‘[a]s a general rule “(t)his Court will not consider
questions, nonjurisdictional in their nature, which have not been acted upon by the trial court.”
Syl. pt. 1, Buffalo Mining Co. v. Martin, 165 W.Va. 10, 267 S.E.2d 721 (1980).’ Syllabus Point
3, Wells v. Roberts, 167 W.Va. 580, 280 S.E.2d 266 (1981).” State ex rel. Farmer v. McBride,
224 W.Va. 469, 479 n.9, 686 S.E.2d 609, 619 n.9 (2009). In fact, petitioner’s brief makes only a
passing reference to this argument. In this regard, and without making any specific citation to the
record, petitioner’s brief states, “Mr. Hamilton testified that in his expert opinion that [sic] prior
habeas counsel should have called a legal expert in the prior proceeding as it would have helped
support Petitioner’s claims of ineffective assistance of trial counsel therein. (AR [Vol.] 2).” See
West Virginia Rules of Appellate Procedure 10(c)(7), in relevant part (requiring that argument in
appellate brief “must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented to the
lower tribunal. The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.”). Because the issue is not properly before this Court, it will
not be considered.

        Likewise, with regard to petitioner’s contention that the habeas court erred in finding that
prior habeas counsel was not ineffective in failing to question trial counsel regarding his failure
to present evidence of the criminal convictions of certain prosecution witnesses, we observe that
petitioner makes no citation to the record indicating that he raised this issue before the habeas
court and that he, thus, preserved the issue for purposes of this appeal. See Evans v. United Bank,
Inc., 235 W.Va. 619, __, 775 S.E.2d 500, 510 (2015) (observing that petitioners’ argument failed
to meet requirements of Rule 10(c)(7), and concluding, therefore, “the issue has been waived for
purposes of appeal.”).

       Finally, with regard to petitioner’s contention that witness Heather M. should have been
permitted to testify at the omnibus hearing in the instant matter regarding deleted MySpace posts
allegedly written by the victim that recanted her accusations against petitioner, we find no error.
Following a proffer of her testimony at the omnibus hearing, the habeas court observed that the
witness could not establish that the victim posted the statement and that “it would be hearsay for

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[Heather M.] to report whatever the victim allegedly said on that . . . .” “‘Rulings on the
admissibility of evidence are largely within a trial court’s sound discretion and should not be
disturbed unless there has been an abuse of discretion.’ State v. Louk, 171 W.Va. 639, [643,] 301
S.E.2d 596, 599, (1983).” Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

        Upon our review and consideration of the circuit court’s final order denying petitioner’s
amended petition for writ of habeas corpus, the parties’ arguments, and record submitted on
appeal, we find no error or abuse of discretion by the circuit court. Our review of the record
supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based
on the errors he assigns on appeal. Indeed, the circuit court’s order includes well-reasoned
findings and conclusions as to the assignments of error properly raised herein. Given our
conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of
discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions. The
Clerk is directed to attach a copy of the circuit court’s December 5, 2014, order.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 20, 2015

CONCURRED IN BY:

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

DISSENTING:

Justice Robin Jean Davis
Justice Menis E. Ketchum




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