                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Thomas J.,
Petitioner Below, Petitioner                                                       FILED
                                                                               January 13, 2020
vs) No. 18-0233 (Harrison County 14-C-33-1)                                     EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION

       Petitioner Thomas J., by counsel Jason T. Gain, appeals the order of the Circuit Court of
Harrison County, entered on February 13, 2018, denying his second amended petition for a writ
of habeas corpus. Respondent Ralph Terry, Superintendent of the Mount Olive Correctional
Complex, appears by counsel Patrick Morrisey and Shannon Frederick Kiser.1

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

        Petitioner is serving a cumulative sentence of forty to ninety years in the Mount Olive
Correctional Complex for his 2010 conviction of four counts of sexual abuse by a parent, two
counts of sexual abuse in the first-degree, two counts of sexual abuse in the second-degree, and
two counts of incest, all arising from three discrete instances of conduct toward his step-daughter
(“the victim”), who was born in 1996. Petitioner filed a petition for a writ of habeas corpus in the
Circuit Court of Harrison County in 2014. He twice amended the petition before the circuit court
conducted an omnibus hearing in 2016. Prior to the omnibus hearing, petitioner filed a motion to
conduct discovery, on the ground that his claims were supported by “newly discovered evidence”
in the form of an affidavit taken from his stepson, the victim’s brother, D.L. The circuit court
conducted a hearing and determined that D.L.’s affidavit expressed an opinion rather than


       1
        Effective July 1, 2018, the positions formerly designated as “wardens” are now
“superintendents.” See W.Va. Code § 15A-5-3. Since the filing of this appeal in this case, the
warden/superintendent has changed and the superintendent is now Donnie Ames. Accordingly, the
Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia
Rules of Appellate Procedure.
                                                  1
evidence, and that D.L. was known to petitioner at the time of petitioner’s trial. The circuit court
thus denied petitioner’s motion to conduct discovery.

        The circuit court, with Judge J. Lewis Marks presiding, conducted the omnibus hearing in
September of 2016. Petitioner presented evidence meant to demonstrate that his counsel, George
Stanton, was ineffective. In particular, petitioner questioned his trial counsel’s failure to secure
D.L.’s testimony, and counsel’s having allowed the State to introduce into evidence, without
objection, a Sexual Abuse Nurse’s Examination (“SANE”) report reflecting that the victim
reported that petitioner sexually abused her once or twice a week over the six years preceding
petitioner’s arrest. Subsequent to the retirement of Judge Marks, the circuit court entered a thirty-
three-page order authored by Judge Christopher McCarthy on February 13, 2017, denying the
second amended petition.

        On appeal, petitioner asserts five assignments of error. He argues that the circuit court: (1)
failed to identify D.L.’s testimony as newly discovered evidence; (2) abused its discretion in
denying discovery to explore that specific “new” evidence; (3) erred in rejecting expert testimony
characterizing petitioner’s trial counsel as ineffective; (4) erred in finding trial counsel effective;
and (5) “committed clear structural error” in ruling on a petition after an omnibus hearing over
which a different circuit court judge had presided. We employ the following standard in our review
of these assignments of error:

               “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).

        To evaluate petitioner’s first and second assignments of error, we must consider whether
petitioner presented the circuit court with “newly discovered evidence” in the form of an affidavit
executed by petitioner’s stepson, the victim’s brother, D.L. We have previously held that

               [a] new trial will not be granted on the ground of newly-discovered evidence
       unless the case comes within the following rules: (1) The evidence must appear to
       have been discovered since the trial, and, from the affidavit of the new witness,
       what such evidence will be, or its absence satisfactorily explained. (2) It must
       appear from facts stated in his affidavit that plaintiff was diligent in ascertaining
       and securing his evidence, and that the new evidence is such that due diligence
       would not have secured it before the verdict. (3) Such evidence must be new and
       material, and not merely cumulative; and cumulative evidence is additional
       evidence of the same kind to the same point. (4) The evidence must be such as
       ought to produce an opposite result at a second trial on the merits. (5) And the new
       trial will generally be refused when the sole object of the new evidence is to
       discredit or impeach a witness on the opposite side.

                                                  2
Syllabus, State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979) (citation omitted). “A new trial
on the ground of after-discovered evidence or newly discovered evidence is very seldom granted
and the circumstances must be unusual or special.” Syl. Pt. 2, State v. Helmick, 201 W. Va. 163,
495 S.E.2d 262 (1997) (citation omitted). We agree that D.L.’s affidavit is not newly discovered
evidence because the circumstances do not come within the rules described in Frazier. It is likely
that petitioner would fail to satisfy most, if not all of the rules, and we need touch but briefly on a
few. First, it is clear that petitioner was aware of D.L. at the time that he prepared for petitioner’s
trial, because counsel attempted to contact him. Petitioner has, thus, not shown that D.L. was a
“new” witness as required by the first rule. D.L. avers in the affidavit that he informed his
counselor at the facility in which he resided at the time that he would speak with petitioner’s
counsel, making it relatively clear that a lack of diligence prevents petitioner from prevailing on
the second rule. Moreover, we agree with the circuit court that D.L. had no testimony to offer that
would have changed the outcome of petitioner’s trial. The affidavit averred, based on D.L.’s
general recollections about the manner in which the household operated, that D.L. did “not believe
that [petitioner] could have committed sexual acts against” his sister and that though D.L. “was
not in the house every second of every day, there is no way that this happened as she said.” The
circuit court correctly found that petitioner’s statements are of belief, not fact, and do not rise to
the level of Frazier evidence. We find no error.

         Petitioner’s third and fourth assignments direct our consideration to the effectiveness of
petitioner’s trial counsel.2 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),
which requires that (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. See Syl. Pt. 5, State v. Miller, 194
W. Va. 3, 459 S.E.2d 114 (1995)(adopting Strickland). In support of this assignment of error,
petitioner offers a number of conclusory statements, some without citation to the appendix record
on appeal, all without discussion, which he characterizes as performance deficiencies. Petitioner


       2
           Petitioner’s third assignment of error states:

              The circuit court erred when it rejected the opinion of noted expert Steven
       Jory, Esq. who opined that the [p]etitioner’s trial was ineffective for his woeful
       mishandling of 404(b) or, alternatively res gestae evidence when he permitted an
       unredacted SANE report to be introduced into evidence without addressing the
       same or requesting a limiting instruction.

        Mr. Jory testified that petitioner’s trial counsel acted in an objectively unreasonable
manner. Petitioner cites no authority to support his argument that the circuit court was bound to
accept Mr. Jory’s opinion testimony (which is, in fact, the crux of the assignment of error), instead
focusing his argument on counsel’s handling of the report. We therefore find that petitioner fails
on this, his third assignment of error, and we consider trial counsel’s treatment of the SANE report
within petitioner’s fourth assignment of error, in which he generally argues that his trial counsel
was ineffective.


                                                    3
simply has provided inadequate description, context, or analysis to allow us to consider the
cumulative effect of these isolated occurrences. We are left, then, with petitioner’s argument that
counsel was ineffective in failing to secure the testimony of D.L.—an argument we dismiss on the
ground, discussed above, that if counsel was not diligent, the lack of diligence was harmless—and
his argument that his trial counsel failed to object to the introduction of the SANE report, which
reflected far more occurrences of sexual misconduct than charged. We agree with the circuit court
that, under the premise described in State v. Harris, 230 W. Va. 717, 742 S.E.2d 133 (2013), the
information relayed to the nurse during the examination underlying the SANE report was intrinsic
to the crimes charged and, thus, admissible. We further agree that trial counsel’s testimony
concerning his decision not to cross-examine witnesses about that information (so as not to draw
attention to the report) describes trial strategy that counsel adequately cogitated, and counsel was
not ineffective.

        In his final assignment of error, petitioner argues that “[u]pon information and belief, there
were no transcripts of the evidentiary or omnibus hearings prepared” and Judge McCarthy, the
successor judge, failed to “certify that he was familiar with the record” prior to proceeding on the
matter, as required by Rule 63 of the West Virginia Rules of Civil Procedure.3 On this ground, he
asserts he is entitled to remand for a new omnibus hearing. Petitioner’s malignity of the successor
judge is undeserved and incorrect. The circuit court’s thorough consideration is evident in the
detailed findings set forth in his thirty-three page comprehensive order.4 Moreover, the circuit
court, on the very first page of that order, certified: “[H]aving received the testimony of the . . .
witnesses [who appeared at the evidentiary and omnibus hearings], and having reviewed the
pleadings filed herein and considered the evidence presented, this [c]ourt does make the following




       3
           Rule 63 provides:

       Disability of a Judge After Trial. If at any time after a trial or hearing has been
       commenced the judge is unable to proceed, any other judge may proceed with the
       matter upon certifying familiarity with the record and determining that the
       proceedings in the case may be completed without prejudice to the parties. In a
       hearing or trial without a jury, the successor judge shall at the request of a party
       recall any witness whose testimony is material and disputed and who is available
       to testify again without undue burden. The successor judge may also recall any
       other witness.
       4
          Though the order was prepared by counsel, we are presented with no reason to presume
that the successor judge did not carefully review the proposed order. “An appellant must carry the
burden of showing error in the judgment of which he complains. This Court will not reverse the
judgment of a trial court unless error affirmatively appears from the record. Error will not be
presumed, all presumptions being in favor of the correctness of the judgment.” Syl. Pt. 4, State v.
Myers, 229 W. Va. 238, 728 S.E.2d 122 (2012)(citations omitted).


                                                  4
[f]indings of [f]act and [c]onclusions of [l]aw.”5 The successor judge sufficiently certified his
familiarity with the record, and we find no error.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.


ISSUED: January 13, 2020

CONCURRED IN BY:

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




       5
          This Court has been asked to interpret Rule 63 only on rare occasion. We note that at least
one federal district court, interpreting the federal counterpart to our rule, has found the condition
satisfied by a less express method of certification than we do here:

               Rather than claiming that the successor judge gathered the wrong material,
       the contractors argue that due to the lack of express certification we cannot know
       whether he reviewed the material he did gather. We think this argument elevates
       form over substance. Although the successor judge nowhere actually stated that he
       had reviewed the voluminous appendices of exhibits and transcript excerpts that the
       parties submitted along with their open issues briefs, we have no doubt that he did.
       After all, he told the parties that he needed these record excerpts to “satisfy the
       mandate of Rule 63.” . . . The successor judge obviously required this exercise to
       ensure that the parties directed him to each item in the record relevant to the
       outstanding issues. We simply do not believe that he then proceeded to ignore these
       materials in the process of making his findings and conclusions.

       To be sure, express certification would have been preferable, for it would have
       avoided this issue. We find no error here, however, because the procedure the
       successor judge ordered together with the language he used demonstrate[s] that he
       complied with Rule 63’s basic requirement: that a successor judge become familiar
       with relevant portions of the record.

Mergentime Corp. v. Washington Metro. Area Transit Auth., 166 F.3d 1257, 1265 (D.C. Cir.
1999).
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