                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Jackie M. Martin,                                                                 FILED
Petitioner Below, Petitioner                                                  January 8, 2018
                                                                             EDYTHE NASH GAISER, CLERK
vs) No. 16-1062 (Wood County 12-P-147)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Michael Martin, Acting Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Jackie M. Martin, by counsel Reggie R. Bailey, appeals the Circuit Court of
Wood County’s October 13, 2016, order denying his amended second petition for writ of habeas
corpus. Respondent Michael Martin, Acting Warden, by counsel Robert L. Hogan, filed a
response.1 On appeal, petitioner argues that the circuit court erred in denying him habeas corpus
relief when he was denied effective assistance of prior habeas counsel and due to the imposition
of unconstitutional sentences for his kidnapping and second-degree robbery convictions.

        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 January of 2000, petitioner was indicted on one count each of kidnapping, aggravated
robbery, impersonation of a law-enforcement officer, extortion, and first-degree sexual abuse.
These charges stemmed from an incident that occurred in Williamstown, West Virginia, on
January 6, 2000. Petitioner made repeated and threatening calls to a female acquaintance, the
victim in this matter, at her place of work demanding $150. The victim left work early due to
being upset and fearful over these threatening calls. As the victim was walking home from work,
petitioner drove up and demanded that she get into his vehicle. Petitioner drove the victim to her
apartment, where he verbally, physically, and sexually abused her in an effort to induce her to
provide him the money. While petitioner and the victim were at the victim’s apartment, the

       1
        Since the filing of the petition in this case, the warden at Huttonsville Correctional
Center has changed and the acting warden is now Michael Martin. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure.



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victim’s grandmother arrived after learning that the victim had left work. The victim testified
that petitioner was holding her wrist tightly during the time that her grandmother was there, so
she did not alert her grandmother to the danger she was in for fear that petitioner would hurt her
more or harm her grandmother. Ultimately, the victim’s grandmother left, and the victim
obtained a payday loan to provide petitioner the $150 he demanded. The victim later reported
petitioner to the police, and he was arrested that evening.

        At trial, petitioner asserted an alibi defense. Surveillance footage from the victim’s place
of work showed her leaving work at approximately 8:12 a.m. The victim lived close to her place
of work, and she testified that petitioner picked her up not long after she left work. Petitioner,
however, presented evidence that he dropped his wife off at work shortly before 8:00 a.m., was
at the dry cleaners shortly before 8:02 a.m., picked up an acquaintance by the name of Tammy
Hoose to take to school, stopped by Flanders Brothers Insurance Agency (“Flanders”), and then
dropped Ms. Hoose off at school. Ms. Hoose proceeded to sign-in at school, marking 8:45 a.m.
as her arrival time. All of these actions purportedly took place across the river from
Williamstown, in Marietta, Ohio.

        Janet Wunder, an employee of Flanders, testified that petitioner was at Flanders on
January 6, 2000, for only a few minutes at some point between 8:20 a.m. and 8:40 a.m. She
recounted that petitioner entered her workplace and asked to speak with another employee, Julie
Hupp. Ms. Hupp, however, was out of the office for a doctor’s appointment. Ms. Wunder
informed petitioner of this fact, and petitioner left the office. Ms. Wunder also testified that she
recalled seeing a news report of petitioner’s arrest later that evening; however, an employee of
the local news station testified that news of petitioner’s arrest did not air until approximately one
week after his arrest, thereby calling into question the date on which Ms. Wunder saw petitioner.
Ms. Wunder’s work calendar, however, contained a notation of Ms. Hupp’s doctor’s
appointment on January 6. Ms. Hupp also later provided a doctor’s note confirming her January
6, 2000, appointment. Petitioner’s trial counsel did not present the work calendar or doctor’s
note, and he did not call Ms. Hupp as a witness.

        At the conclusion of petitioner’s trial, the jury found him guilty of kidnapping,
aggravated robbery, extortion, and first-degree sexual abuse. Petitioner was sentenced to life
imprisonment with a recommendation of mercy for kidnapping, forty years of incarceration for
aggravated robbery, one year to five years of incarceration for extortion, and one year to five
years of incarceration for first-degree sexual abuse. Petitioner’s sentences for aggravated
robbery, kidnapping, and first-degree sexual abuse were ordered to run consecutively, while
petitioner’s extortion sentence was ordered to run concurrently to the other sentences.2 Petitioner
filed a direct appeal, which this Court refused on May 9, 2001.



       2
        The legislature amended the robbery statute between the date of petitioner’s conviction
and the date of sentencing to define separately first-degree robbery and second-degree robbery.
The circuit court determined that, as a result, petitioner was entitled to elect the lesser sentence
for second-degree robbery in effect at the time of his sentencing. Accordingly, petitioner’s
“aggravated robbery” sentence was corrected, and petitioner was sentenced to not less than five
nor more than eighteen years of imprisonment for that conviction.
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       Petitioner filed his first petition for writ of habeas corpus on May 6, 2002. Following the
appointment of counsel and the filing of an amended first petition, the circuit court held an
omnibus hearing. Following the hearing, the parties submitted supplemental briefing. On May 1,
2006, the circuit court denied petitioner’s amended first petition. This Court refused petitioner’s
appeal of the denial of his amended first petition on November 28, 2006.

        Petitioner filed a second petition for writ of habeas corpus on April 11, 2012, which is the
subject of the instant appeal. Petitioner was appointed counsel and filed an amended second
petition. The circuit court held an omnibus hearing on petitioner’s amended second petition. By
order entered on October 13, 2016, petitioner’s amended second petition was denied. 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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

       We also bear in mind that

               [a] prior omnibus habeas corpus hearing is res judicata as to all matters
       raised and as to all matters known or which with reasonable diligence could have
       been known; however, an applicant may still petition the court on the following
       grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing;
       newly discovered evidence; or, a change in the law, favorable to the applicant,
       which may be applied retroactively.

Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

         Petitioner’s first assignment of error is that he was denied effective assistance of habeas
counsel in his first habeas proceeding. Petitioner asserts eight discrete bases to support this
contention: first, habeas counsel’s failure to challenge trial counsel’s failure to call Ms. Hupp at
trial; second, habeas counsel’s failure to challenge trial counsel’s failure to secure and produce
the desk calendar from Flanders; third, habeas counsel’s failure to challenge trial counsel’s
failure to secure and produce the doctor’s note from Ms. Hupp’s doctor; fourth, habeas counsel’s
failure to “produce or investigate [Ms.] Hupp as a witness at the habeas hearing[;]” fifth, habeas
counsel’s failure to produce the desk calendar at the habeas hearing; sixth, habeas counsel’s
failure to produce the doctor’s note at the habeas hearing; seventh, habeas counsel’s failure to
call Ms. Hoose at the habeas hearing “to illustrate the importance of Julie Hupp’s testimony[;]”



                                                 3

and finally, habeas counsel’s failure to call Ms. Wunder at the habeas hearing “to illustrate the
importance of [Ms.] Hupp’s testimony.” Petitioner argues that

       [i]f the jury had been convinced as to the date of Ms. Wunder’s and Ms. Hoose’s
       encounter with . . . [p]etitioner, then the meeting times of 8:30 a.m. with Ms.
       Wunder and 8:45 a.m. [Ms. Hoose’s school sign-in], could have exonerated . . .
       [p]etitioner. . . These matters should have been properly investigated before trial,
       and properly presented by prior habeas counsel.

Petitioner acknowledges that during the hearing on his first habeas petition, habeas counsel
produced evidence concerning the alibi issue; however, petitioner contends that only “[d]irect
testimony by Ms. Hupp, [Ms.] Wunder[,] and [Ms.] Hoose” could “fully demonstrate the errors
of trial counsel.” Likewise, although petitioner acknowledges that references to the desk calendar
and doctor’s note were made during his first habeas hearing, petitioner maintains that because
“seeing is believing,” producing this evidence was necessary to “have clearly demonstrated the
critical importance of the trial errors.” In sum, petitioner maintains that prior habeas counsel
“failed to acknowledge or present key portions of [his alibi] defense,” which prevented the
circuit court from adequately considering the issue.

              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). A 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). “Failure to meet the burden of proof imposed by either part
of the Strickland/Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v.
Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citation omitted).

        The crux of petitioner’s argument is that habeas counsel failed to challenge trial counsel’s
failure to adequately develop his alibi defense and that habeas counsel similarly failed to present
the necessary evidence to solidify his alibi defense. We do not find that habeas counsel’s
representation was deficient under an objective standard of reasonableness. Habeas counsel
developed this issue during petitioner’s first omnibus hearing. Habeas counsel presented the
testimony of Paul Morton, an investigator utilized by petitioner’s trial counsel in preparation for
petitioner’s trial. Mr. Morton testified as to the particular pieces of evidence petitioner contends
should have been introduced. Petitioner’s trial counsel also testified at the omnibus hearing. The
evidence and witness testimony petitioner argues should have been produced were referenced
and addressed during his first habeas hearing. Accordingly, we find no abuse of discretion in the
circuit court’s conclusion that petitioner’s habeas counsel’s representation was not deficient.

      Moreover, petitioner cannot demonstrate that the result of the prior habeas would have
been different had counsel’s representation not been allegedly deficient. Fully crediting

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petitioner’s alibi would not have precluded him from committing the offenses of which he was
convicted. Williamstown, West Virginia and Marietta, Ohio are in close geographic proximity to
one another. Testimony was adduced at the prior omnibus hearing that, depending on traffic, it
can take as few as three minutes to get from one town to the other. Thus, even if petitioner’s alibi
defense had been bolstered in the way petitioner contends was necessary, he has failed to show
that the result of his first habeas would have been different. Thus, we find no abuse of discretion
in the circuit court’s conclusion that petitioner failed to establish that he received ineffective
assistance of habeas counsel.

        Petitioner’s second assignment of error is that the life sentence imposed for his
kidnapping conviction violates his right to due process of law.3 Specifically, petitioner contends
that because bodily harm was not alleged or found beyond a reasonable doubt, petitioner’s life
sentence violates his right to due process of law and trial by jury.

        Petitioner raised a similar claim during his first habeas proceeding. Petitioner does not
assert that this assignment of error is proper for reconsideration due to any ineffective assistance
of prior habeas counsel; newly discovered evidence; or, a change in the law, favorable to the
applicant, which may be applied retroactively. Losh, 166 W.Va. at 762-63, 277 S.E.2d at 608,

       3
         At the time petitioner committed the crime of kidnapping, this State’s kidnapping statute
read, in relevant part, that

       [a]ny person who, by force, threat, duress, fraud or enticement take, confine,
       conceal, or decoy, inveigle or entice away, or transport into or out of this state or
       within this state, or otherwise kidnap any other person, or hold hostage any other
       person for the purpose or with the intent of taking, receiving, demanding or
       extorting from such person, or from any other person or persons, any ransom,
       money or other thing, or any concession or advantage of any sort, or for the
       purpose or with the intent of shielding or protecting himself, herself, or others
       from bodily harm or of evading capture or arrest after he or she or they have
       committed a crime shall be guilty of a felony and, upon conviction, shall be
       punished by confinement by the division of corrections for life . . . Provided, That
       the following exceptions shall apply: (1) A jury may, in their discretion,
       recommend mercy[;] . . . (3) in all cases where the person against whom the
       offense is committed is returned, or is permitted to return, alive, without bodily
       harm having been inflicted upon him, but after ransom, money or other thing, or
       any concession or advantage of any sort has been paid or yielded, the punishment
       shall be confinement by the division of corrections for a definite term of years not
       less than twenty nor more than fifty; (4) in all cases where the person against
       whom the offense is committed is returned, or is permitted to return, alive,
       without bodily harm having been inflicted upon him or her, but without ransom,
       money or other thing, or any concession or advantage of any short having been
       paid or yielded, the punishment shall be confinement by the division of
       corrections for a definite term of years not less than ten nor more than thirty.

W.Va. Code § 61-2-14a(a) (1999).
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Syl. Pt. 4, in part. Accordingly, petitioner’s prior omnibus hearing is res judicata as to this issue.
Id.

        Petitioner’s final assignment of error is that his sentence of five to eighteen years of
imprisonment for his second-degree robbery conviction is unconstitutional because he was never
charged or indicted for that offense. As set forth above, as a result of a change in the robbery
statute, the circuit court found that petitioner was entitled to elect a lesser sentence for second-
degree robbery under the new statute. Petitioner maintains that the proper remedy was to have
his aggravated robbery conviction overturned and set aside as being unconstitutional.

        Petitioner offers no law in support of this argument. Rule 10(c)(7) of the West Virginia
Rules of Appellate Procedure mandates that a petitioner’s brief “contain an argument exhibiting
clearly the points of fact and law presented, the standard of review applicable, and citing the
authorities relied on, under headings that correspond with the assignments of error.” (Emphasis
added.) In an Administrative Order entered on December 10, 2012, then-Chief Justice Menis E.
Ketchum specifically stated that “[b]riefs that lack citation of authority, fail to structure an
argument applying applicable law, fail to raise any meaningful argument that there is error, or
present only a skeletal argument” and “[b]riefs with arguments that do not contain a citation to
legal authority to support the argument” are not in compliance with the Rules of Appellate
Procedure. Because petitioner provides no law to support this assignment of error, it is not in
compliance with our Rules and we decline to address it on appeal.

        For the foregoing reasons, we affirm the circuit court’s October 13, 2016, order denying
petitioner’s amended second petition for writ of habeas corpus.

                                                                                           Affirmed.

ISSUED: January 8, 2018

CONCURRED IN BY:

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




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