          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2016 Term
                                 _______________                         FILED
                                                                      June 2, 2016
                                   No. 15-0067                         released at 3:00 p.m.
                                 _______________                     RORY L. PERRY, II CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA


                                SAMUEL ANSTEY,

                            Petitioner Below, Petitioner,


                                          v.

                             DAVID BALLARD,

                    Warden, Mt. Olive Correctional Complex,

                        Respondent Below, Respondent.

          _____________________________________________________

                   Appeal from the Circuit Court of Fayette County

                    Honorable John W. Hatcher, Jr., Chief Judge

                            Civil Action No. 14-C-134-H


                                AFFIRMED

          _____________________________________________________

                              Submitted: April 5, 2016

                                Filed: June 2, 2016


Valena E. Beety, Esq.                                        Patrick Morrisey, Esq.

Wiley W. Newbold, Esq.                                       Attorney General

William L. Burner, Rule 10 Certified Law Student             Derek A. Knopp, Esq

Ashley M. Hawkins, Rule 10 Certified Law Student             Assistant Attorney General

Devon T. Unger, Rule 10 Certified Law Student                Gilbert C. Dickey, Esq.

James Alexander Mead, Rule 10 Certified Law Student          Assistant Attorney General

West Virginia Innocence Project                              Charleston, West Virginia

West Virginia University College of Law                      Counsel for Respondent

Clinical Law Program

Morgantown, West Virginia

Counsel for Petitioner


JUSTICE LOUGHRY delivered the Opinion of the Court.

CHIEF JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.

                              SYLLABUS BY THE COURT



              1. “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).



              2. “‘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 [or her] affidavit that [the defendant] was diligent in ascertaining and securing [the]

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.’ Syl. pt. 1, Halstead v. Horton[,] 38

W.Va. 727, 18 S.E. 953 (1894).” Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534

(1979).

                                               i
              3. “‘A court having jurisdiction over habeas corpus proceedings may deny a

petition for a writ of habeas corpus without a hearing and without appointing counsel for the

petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith

show to such court’s satisfaction that the petitioner is entitled to no relief.’ Syllabus Point

1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines,

215 W.Va. 698, 601 S.E.2d 18 (2004).




                                              ii
LOUGHRY, Justice:


              This case is before us upon the appeal of Samuel Anstey (“petitioner”) from

the December 24, 2014, order of the Circuit Court of Fayette County denying his petition for

relief in habeas corpus. The petitioner challenged his 1995 first degree murder conviction,

without a recommendation of mercy, in the death of Marie Donollo (“victim”). In his habeas

petition, the petitioner asserted he was entitled to a new trial because the advancement in fire

science and arson investigation during the last twenty years constituted newly-discovered

evidence which demonstrated the fundamental and unconstitutional unfairness of his trial.

Following its consideration of the parties’1 briefs, the affidavits of the petitioner’s new fire

experts, and the underlying trial record, the circuit court denied the habeas petition without

holding an evidentiary hearing.2 Based on our thorough review of the appendix record,

which includes the current habeas proceeding and a transcript of the petitioner’s murder trial,

as well as the parties’ briefs and the applicable law, we find no basis to reverse the circuit

court’s decision. Accordingly, we affirm.




       1
       The named respondent in this matter is David Ballard, Warden of the Mount Olive
Correctional Complex, where the petitioner is incarcerated. Inasmuch as the petitioner
challenges his underlying criminal conviction in the instant proceeding, we refer to the
respondent simply as “the State.”
       2
       The same circuit court judge who presided over the petitioner’s murder trial
considered the instant habeas proceeding.

                                               1

                                            I. Facts

                                 A. The Underlying Trial

              On May 11, 1994, a Fayette County grand jury returned indictment No. 94-F­

31 charging the petitioner with first degree murder in violation of West Virginia Code § 61­

2-1 (1991) and first degree arson in violation of West Virginia Code § 61-3-1 (1991). The

State proceeded to trial solely on the murder charge under a theory of felony-murder. During

the eleven-day trial, which began on August 21, 1995, twenty-nine witnesses were called by

the State, and eleven witnesses testified for the defense. The petitioner did not take the stand.



              The evidence revealed that sometime in either 1991 or 1992, the petitioner, a

thirty-six-year-old, out-of-work coal miner, moved into the house trailer occupied by the

victim, his eighty-one-year-old grandmother and adoptive mother.3 The trailer was located

in the Harvey Hill area of Fayette County. According to witnesses at trial, the relationship

between the petitioner and the victim was problematic.



              Witnesses for the State testified to hearing arguments between the petitioner

and the victim, who was in declining health and who believed the petitioner was unwilling

to help her. A neighbor, Charles Green, testified to hearing the petitioner and the victim



       3
        The record reveals that the petitioner’s biological mother died when he was an infant;
his biological father, the victim’s son, was estranged from the family.

                                               2

argue. He also stated that the victim asked if she could live with him and his wife so that

they could take care of her.4 On one occasion, Mr. Green observed that the victim had a

black eye, which the victim attributed to the petitioner.5 At the victim’s request, Mr. Green

installed brackets on the victim’s bedroom door, so that she could put a padlock on it. He

“reckon[ed]” the victim was afraid to stay in the trailer. Another neighbor, Pamela Smith,

also testified to overhearing the victim and the petitioner doing “a lot of screaming, yelling,

cussing.” The victim would occasionally visit Ms. Smith in her home and, during one such

visit, the victim told Ms. Smith that the petitioner “used to hit her, and smack her around and

choke her” and showed her the “bruises and stuff on her arms . . . and said that [the

petitioner] had done it.”



              Nancy Kirby, who had known the victim for a number of years, testified that

during the year prior to the victim’s death, the victim was always upset and crying; that she

complained of having no transportation and being unable to get to the store; and, that during

several visits to the victim in her trailer, Ms. Kirby observed there was no food in the

refrigerator. She further testified that approximately one year before the victim’s death, the


       4
       Other State’s witnesses similarly testified that the victim wanted to move in with
them so they could take care of her.
       5
        There were no objections to either this particular evidence or to other similar
evidence discussed herein; however, the trial transcript reveals the circuit court upheld
defense counsel’s objections to evidence of other incidents of the petitioner’s physical abuse
of the victim.

                                              3

victim asked her to feel a knot on her head, stating the petitioner had struck her in the head

with the telephone. This witness also testified that nearly every time she spoke with the

victim over a four-year period, the victim told her that the petitioner treated her badly and

was mean to her, and that she was taking him out of her Will.6



              Anna Mae Sowder, a longtime friend of the victim, testified that she spoke with

the victim by telephone six or seven times a week. During those conversations, the victim

would talk about her “troubles,” including having no way to get to the store and being alone

and afraid. The victim also stated that unless the petitioner began treating her better, she

would rather throw her money into the Thurmond River than allow him to have it,

complaining that the petitioner “aggravate[d] [her] to death, wanting [her] money.” By way

of example, Ms. Sowder stated that the victim told her that after the petitioner purchased a

trailer, he “aggravat[ed] her, wanting her to pay the trailer off[.]” After he purchased a truck,

the victim told her that “he’s expecting me to pay for the truck.”7




       6
       The record reveals that, in 1976, the victim executed her Last Will and Testament
(“Will”) naming the petitioner as her sole beneficiary.
       7
        Insurance agent Edna Treadway, who had written a policy of insurance for the victim
and her late husband, testified concerning the victim’s complaints that neither her son (the
petitioner’s biological father) nor the petitioner would do anything for her; that all they
wanted was her money; and that she was not going to leave either of them anything. Another
longtime friend of the victim, Marlene Maynard, testified that the victim’s primary complaint
regarding the petitioner was that “he was always wanting money from her.”

                                               4

                The State’s witnesses also included various bank employees and officers who

testified concerning the victim’s financial activities shortly before her death. The evidence

revealed that, prior to December 1993, the victim had exclusive control of her sizeable assets

which largely consisted of certificates of deposit at two Oak Hill banks—Bank One and One

Valley Bank.8



                Other evidence at trial revealed that on December 9, 1993, the victim and the

petitioner went to Bank One where they were assisted by longtime bank employee, Diana

Janney. According to Ms. Janney, the petitioner told her that the bank needed to add him to

the victim’s certificate of deposit accounts. When Ms. Janney asked the victim if that was

what she wanted to do, the victim “just kind of fell back in the chair a little bit and, you

know, threw her hands up and said, ‘Well, he’s going to get it, anyway, so we might as well

add him on.’” Ms. Janney explained to the victim that if the petitioner’s name were added

to her certificates of deposit, he would have equal rights to those funds. Ms. Janney testified:

“I was kind of reluctant, so when [the petitioner] saw my reluctance, he said, well, if I didn’t

add the name on there, he was going to use the power of attorney to add his name on them.”9

       8
       Although the victim’s total assets were thought to be in excess of $700,000,
following her death, the total assets were approximately at $470,000. See infra note 11.
       9
        At that time, the petitioner did not yet have the power of attorney. According to the
victim’s lawyer, Phillip Tissue, the victim executed a general power of attorney (“POA”) on
December 15, 1993, which authorized the petitioner to act as the victim’s attorney-in-fact.
He explained that the victim had been hospitalized previously during which time she was
                                                                               (continued...)

                                               5

Being uncomfortable with the situation, Ms. Janney sought the assistance of her supervisor,

Becky Booth.



               Ms. Booth, another longtime bank employee, testified she was well acquainted

with the victim who had been coming to the bank for twenty years. She assisted Ms. Janney

in making certain the victim understood that anyone added to her accounts would have equal

access to their funds. She also cautioned the victim that it would be far more difficult to

remove someone from her accounts than it was to add them. Although Ms. Booth was also

uncomfortable with the situation, being aware that the victim had never before wanted

anyone else on her accounts, the bank employees proceeded to add the petitioner to the

victim’s certificate of deposit accounts totaling in excess of $400,000.10 At this same time,

the petitioner was also added to the victim’s Bank One safety deposit box in which she kept

an unknown amount of cash and certificates of deposit.




       9
        (...continued)
unable to handle her business affairs and she wanted someone authorized to act on her behalf
if something like that were to happen again. The petitioner delivered a copy of the POA to
Bank One.
       10
          A One Valley Bank employee testified that on December 10, 1993, the victim added
the petitioner to her six accounts held at that bank, which totaled approximately $68,000.

                                             6

              According to Ms. Janney, approximately one week later, the victim returned

to the bank, alone, seeking to remove the petitioner from her certificate of deposit accounts.

The victim was advised that the only way to remove the petitioner from her accounts was to

close them, which would result in a financial penalty. Because the victim did not want to

incur a penalty, no further action was taken at that time.



              On February 2, 1994, the victim again visited Bank One by herself. Upon

examining her safety deposit box, she became very upset because she believed some money

and/or certificates of deposit were missing. Ms. Janney explained that the certificates of

deposit were used to fund a trust that was established in December,11 but the victim did not

appear to understand. The victim immediately closed out her old safety deposit box, opened

a new one for her exclusive use, and told Ms. Janney that she wanted to change her Will

because she did not want the petitioner to have anything.



              After leaving Bank One on February 2nd, the victim visited Mr. Tissue, who

prepared a revocation of the POA as part of the victim’s apparent effort to regain control of




       11
        The victim’s lawyer, Mr. Tissue, had calculated the victim’s assets to be in excess
of $700,000 based on information she had provided to him. Based on his legal advice, the
victim executed a trust agreement in late December 1993, so as to reduce her estate for tax
purposes. The trust provided the petitioner with $10,000 per year from the victim’s Bank
One accounts.

                                              7

her assets.12 Describing the victim as distraught based on her belief that the petitioner had

taken money from her safety deposit box, Mr. Tissue testified that the victim expressed a

desire to change her Will. An appointment was made for her to return to his office the

following day at which time she reiterated her desire to change her Will. Not knowing whom

to designate as her beneficiary, they discussed the possibility of leaving her estate to

charities.13



                 On February 7, 1994, the victim, this time accompanied by the petitioner,

appeared at Mr. Tissue’s office. Because he was unable to see them at that time, an

appointment was made for them to return on February 10, 1994. This appointment was never

kept because around 4:00 a.m. the next day, February 8, 1994, a fire occurred in the trailer

shared by the petitioner and the victim.



                 During the ensuing investigation by law enforcement and the office of the State

Fire Marshal, the petitioner maintained he awoke around 3:00 a.m. to noises and the sound




       12
            On February 3, 1994, Bank One received a copy of this revocation.
       13
         At the request of Mr. Tissue, Tim Velie, Senior Vice President of Bank One, was
present at this meeting to assist in identifying options for the victim to regain control of her
assets. According to Mr. Velie, the victim did not want the petitioner to have control over
her funds; she expressed a preference to throw her money into the river rather than allow the
petitioner to have her money.

                                                8

of the victim yelling.14 According to the petitioner, upon opening his bedroom door, he felt

intense heat, saw that the hallway was filled with smoke, and closed his door. He told the

investigators that he tried to telephone for help, but alleged the home telephone was not

working properly. The petitioner contended that seeing no other means of escape, he exited

the trailer through his bedroom window with a few items of clothing, his shoes, his shotgun,

and his keys.15 In describing his effort to get help, the petitioner told investigators he got into

his truck and drove to the homes of neighbors. He further stated that after getting no

response at the first two homes, he drove back to the home of the closest neighbor, Michael

Suttle, who then placed a 911 call for assistance. By way of explanation for why he did not

simply run in the first instance to the Suttle home located approximately fifty-five feet from

the burning trailer, the petitioner indicated because his truck had a full tank of gas, he was

concerned the fire might cause the truck to explode given its proximity to the trailer.




       14
         Sergeant John Morrison of the West Virginia State Police took a statement from the
petitioner, who told him there was a POA that had been revoked; that the victim had around
$700,000; that he was her sole beneficiary; that they would fight; and that she had threatened
to remove him from her Will. During Sergeant Morrison’s investigation, he learned that
during the few weeks that the petitioner had access to the victim’s safety deposit box, he
opened it five times. He also spoke to Mr. Tissue who advised him that the victim’s assets
were in excess of $700,000, although Sergeant Morrison later learned that the figure was
closer to $470,000.
       15
         In exiting through the window, the petitioner sustained minor injuries. Jack Graley,
an emergency medical technician who had been called to the scene, testified that the
petitioner kept saying that his mom (the victim) was dead and that he would not go to the
hospital unless they got his blue bag that contained important papers and a safety deposit box
key.

                                                9

               The Oak Hill Volunteer Fire Department (“the VFD” or “the Department”)

arrived on the scene twelve minutes after receiving the fire alarm and the petitioner indicated

that his grandmother was still in the trailer.16 Firefighters discovered the unconscious victim

in her bed and removed her through her bedroom window. CPR was administered, and she

was transported to Plateau Medical Center in Oak Hill. The victim died on February 12,

1994. According to the State medical examiner, the cause of death was “smoke and soot

inhalation resulting in a brain dead condition.”



               Chief Delbert Cordle of the Oak Hill VFD testified that while he did not

determine the cause of the fire, he thought, based on his observations, the fire had started in

the kitchen. After the fire was extinguished and the trailer secured, Chief Cordle turned the


       16
          Firefighter Brett Rust testified that upon his arrival at the fire scene, the petitioner
shined a flashlight towards the victim’s bedroom and said, “My mother is in that room, but
she’s probably dead by now.” Mr. Rust thought it was strange that the petitioner drove to
houses fifty and sixty yards away when there was a house right next door. While serving as
a member of the Department’s fire investigation team, Mr. Rust noted that the petitioner’s
bedroom was virtually untouched by smoke from the fire due to weather stripping
surrounding the bedroom door and a towel attached above the door.
        Firefighter Samuel Jasper, Jr., testified regarding his participation in the rescue of the
unconscious victim through her bedroom window. Thereafter, he assisted in suppressing the
fire and, once that was accomplished, he was directed to check for hot spots. He “found a
hot spot on a vent, some smoldering in the second bedroom where the lady was” that was not
connected to the other fire. Based on his observations, Mr. Jasper believed the fire had
started in the kitchen beside the living room area.
        Firefighter Jack Holt, who assisted in fire suppression and served as a member of the
Department’s fire investigation team, also observed what appeared to have been a small fire
in the victim’s bedroom; concluded that the main fire was in the kitchen area; and noted that
the toaster appeared to have heavy fire damage directly above and below it.

                                               10

scene over to the Department’s fire investigation unit, which was led by Lieutenant Robert

Begley, and contacted the State Fire Marshal.17



                 Lieutenant Begley testified that both he and Assistant State Fire Marshal Roger

York went to the fire scene during the morning of February 8th.18 Chief Cordle and the

petitioner were already at the fire scene. Lieutenant Begley spoke to the petitioner who told

him they had been having a problem with an outlet in the kitchen; that he had been trying to

get his mother to move; and that while she had enough money to move, she refused to do so.

The petitioner also commented on how quickly the fire department had arrived.



                 During his investigation, Lieutenant Begley noted that the fire damage was in

the living room and kitchen areas of the trailer and, principally, in the kitchen “from the

counter top up.” The remainder of the trailer, including the bathroom and the victim’s

bedroom, had heat and smoke damage but no fire damage. Lieutenant Begley did not

observe any heat or smoke damage in the petitioner’s bedroom, which he attributed to the

towel and weather-stripping surrounding the bedroom door.19

       17
         Chief Cordle contacted the State Fire Marshal because someone had been trapped
in the burning trailer.
       18
        Begley testified regarding his fire investigation training, which included eighty hours
of course work at the National Fire Academy in Maryland.
       19
            As discussed infra, the defense maintained the petitioner had been using the towel
                                                                                 (continued...)

                                                11

              Lieutenant Begley also observed “there was a lot of fire damage directly

underneath the toaster” located on the kitchen counter top, noting that two sheets of

aluminum foil had been placed on top of the toaster; the bottom crumb tray had been

removed; and the toaster’s plunger, or lever, was in the down position. Lieutenant Begley

testified to seeing the charred material on the floor vent near the foot of the victim’s bed, and

he concluded there was no connection between that material and the fire in the kitchen area.



              As part of his investigation, Lieutenant Begley photographed various areas of

the fire scene, including the toaster and the electrical breaker box located in the petitioner’s

bedroom. Upon finding three circuit breakers that appeared to be tripped, he flipped them

off, back on, and then off again. These actions were criticized by the petitioner’s fire experts

at trial.



              The State called three fire experts at trial: Assistant State Fire Marshal Roger

York; Steven Cruikshank, Director of Emergency Services and Fire Coordinator for Fayette

County;20 and Harold Franck, an expert in electrical and forensic engineering and fire

determination. Each expert offered testimony concerning fire cause and origin based on their


        19
        (...continued)
and the weather-stripping to keep noise and light from disturbing the victim.
        20
         Assistant State Fire Marshal Roger York asked Mr. Cruikshank to investigate the
fire and give his opinion on cause and origin.

                                               12

respective examinations of the trailer and its contents. All three of these witnesses testified

concerning the materials surrounding the petitioner’s bedroom door, which effectively

prevented smoke from entering the room; their conclusions that the area of fire origin was

in the kitchen and the cause of the fire was the toaster; and their respective determinations

that there had been a second, independent incendiary fire in the victim’s bedroom that had

self-extinguished.



                 Assistant State Fire Marshal York21 described the manner in which he

investigated the fire. Based on smoke patterns and other evidence, he concluded that the

victim’s bedroom door and window were open at the time of the fire, which allowed for

smoke to travel into her room, across her bed where she was sleeping, and vent out her

bedroom window. After noting the petitioner would have knowledge of air movement from

his work as a coal miner, Mr. York testified that he found an anamometer in the petitioner’s

bedroom, which is a device used to measure airflow in an underground mine.22 When asked

       21
         Mr. York spoke to the petitioner, who explained his actions upon realizing the trailer
was on fire. He also told Mr. York that he went to the hospital, but returned to the trailer to
get his VCR, Nintendo, and clothing. When Mr. York asked the petitioner whether he was
aware of any problems in the trailer, the petitioner noted a lightbulb near the kitchen stove
that he thought was problematic and indicated that the furnace needed to be repaired. Both
of these items were examined and eliminated as potential fire causes. The petitioner
volunteered to Mr. York that the victim had revoked a power of attorney; that she had an
appointment to see a lawyer on February 10th; and that he was to get everything under the
victim’s Will.
       22
            On cross-examination, Mr. York agreed that the use of an anamometer requires a
                                                                            (continued...)

                                              13

whether the smoke detector worked, the petitioner told Mr. York that the detector did not

emit sound during the fire.



              Regarding the fire’s origin, Mr. York testified he systematically eliminated all

potential accidental causes and determined that the fire was incendiary in nature due to

tampering with the toaster, which was made to appear accidental. He testified that the small

fire in the victim’s bedroom was not caused by the other fire, nor by the trunk-line of the

furnace.23 On cross-examination, Mr. York conceded that the material involved in the second

fire could be the same type of fire debrís found in the kitchen and living room areas.24



              Mr. Cruikshank, who had investigated approximately 200 trailer fires, testified

that he began his investigation by examining the exterior of the trailer before entering and

progressing from the least to heaviest areas of burn. He found major fire involvement in the

kitchen with the toaster being the only potential heat source, noting heavy damage to the

toaster’s electrical cord. Mr. Cruikshank could find no accidental cause for either fire and

       22
          (...continued)
special training and certification and stated that he did not check to see whether the petitioner
had that certification.
       23
        It was also determined that the furnace thermostat was working properly and was set
at seventy-five degrees.
       24
        When defense counsel posed this same suggestion to Mr. Franck, he responded that
while he did not do a close inspection of the material, he did not think it was ceiling tile,
explaining the material would had to have been hot and burning.

                                               14

concluded that the burning of the trailer was intentional: “[W]hen you have two separate

fires and you can’t connect the two, it’s considered an incendiary fire.”25



               Mr. Franck, who had investigated between 400 and 500 fires,26 eliminated all

potential accidental causes for the fires, including those identified by the petitioner, i.e., a

light bulb above the kitchen stove and the furnace/thermostat. He determined that the

primary fire began in the kitchen near the toaster based on the degree of fire damage to this

area and the “V” smoke pattern above the toaster. Mr. Franck analyzed the toaster in his lab,

which revealed how it had been used to set the fire. He found that the two pieces of wire that

fell out of the toaster during his examination were suspicious because they had arced on two

ends, which was supportive of his conclusion that the toaster cord had been stuffed inside the

bottom of the toaster.27 Mr. Franck also observed that the spring to the toaster’s control lever

had been manipulated, which defeated the purpose of the lever and allowed the toaster to



       25
        Mr. Cruikshank testified that he looked at, but had no concerns, regarding a living
room lamp. As discussed infra, the petitioner’s trial experts opined there was a single,
accidental fire caused by a short-circuit in this lamp.
       26
         Mr. Franck served as the executive secretary of the West Virginia Chapter of the
International Association of Arson Investigators. He also served on that organization’s
international training and education committee, which caused him to be involved in teaching
arson investigation to firefighters.
       27
         Explaining further, Mr. Franck stated that when a wire short-circuits, it will do it at
one point, and that it was “hard to believe that [the wire] will short-circuit and separate at this
one point and then two inches further it will separate again, because the electricity has been
cut off to it.”

                                                15

remain on. This, in turn, caused the insulation on the cord stuffed inside the toaster to burn

and catch fire.28 Mr. Franck found that his conclusions were further supported by a “saddle

mark” on a piece of the toaster wire, which he determined was caused by the wire resting on

a heating element inside the toaster.



              The petitioner’s trial counsel cross-examined Mr. Franck regarding National

Fire Protection Association 921 (“NFPA 921”). Mr. Franck testified that he possessed all of

the NFPA standards, including NFPA 921, which he described as guidelines for fire

investigation. With regard to the tripped breakers that Lieutenant Begley manipulated, Mr.

Franck agreed with defense counsel that NFPA 921states that you should not move items that

are suspect in a fire. Mr. Franck added that things are often moved around during the fire

suppression effort, which is why fire investigators necessarily gather information from those

involved in extinguishing the fire when making a cause and origin determination.




       28
         Mr. Franck also examined the smoke detector, which did not activate during the fire.
He determined that it was hard-wired to the trailer’s electricity, rather than being battery-
powered; that it was in proper working order; and that it was on an electrical circuit for
which he found the breaker in the “off” position. On cross-examination, defense counsel
asked whether he was aware that the breaker had been placed in the “off” position by
Lieutenant Begley. Mr. Franck responded that he could only testify concerning what he
found in the breaker box, which he considered to be consistent with all other evidence at the
fire scene.

                                              16

               Turning to the petitioner’s evidence, his trial strategy was to attack the quality

of the State’s fire investigation and the validity of the State’s theory about the cause of the

fire. He also attempted to rebut the State’s motive evidence, i.e., the victim’s intent to

disinherit the petitioner. Regarding the towel and weather-stripping surrounding his bedroom

door, the petitioner presented testimony of various persons who expressed their understanding

that these materials had been used to subdue light and sound so as not to disturb the victim.



               In addition, the petitioner presented several cause and origin witnesses,29 who

testified that there was no evidence of a fire in the victim’s bedroom; that there was a single,

accidental fire that originated in the living room; that the single fire was caused by a short

circuit in a living room lamp; and that the fire did not start in the area where the toaster was

located. During their trial testimony, each of these witnesses was handed the charred debrís

that had been found in the victim’s bedroom and asked to examine it, and each person testified

that it looked like the burned ceiling tile remains that had been observed in the burn area of

the trailer.



        29
          Two such witnesses were Robert Hebb, Jr., and Rodney Carney, both longtime
firefighters for the City of Beckley, West Virginia, and both trained in fire investigation. Mr.
Hebb testified that he observed a “V” smoke pattern, which showed that the fire originated
in the living and moved up and over the counter top and into the kitchen. Mr. Carney
described the beading on the living room lamp cord as supportive of his conclusion that the
fire was caused by the lamp short-circuiting and arcing. He also concluded that the damage
in the area where the toaster had been located was not nearly as extensive as the fire damage
in the living room.

                                               17

               Tim May, a professional fire investigator who had taught fire investigation at

the National Fire Academy in Maryland, and who travels the world teaching fire investigation,

testified as an expert for the defense. He visited the fire scene on April 13, 1995. Following

his investigation, he concluded this was “an accidental fire, no question whatsoever.” After

explaining the “prescribed” way to conduct a cause and origin examination, he stated that his

examination of the trailer revealed that the fire, “without doubt,” started in the living room

and not in the toaster.30 According to Mr. May, the beading on the living room lamp’s

electrical cord evidenced that the wire had shorted and arced, which caused the fire.

Regarding the charred debrís found in the victim’s bedroom, Mr. May testified it was

absolutely burned-out ceiling tile that had made its way into the victim’s bedroom in the

normal process of a fire scene, explaining that “if you walk through burning material, you

carry it with you, and that’s exactly what happened.” In conclusion, Mr. May was critical of

the State’s fire investigators, maintaining their case made no sense and that their reports and

testimony conflicted “with everything from a breaker box, to the area of origin, to the position

of a toaster[.]”



               The petitioner also presented the testimony of Charles Kovarik, who was

qualified as an expert in electrical engineering. Like Mr. Franck, Mr. Kovarik examined the



       30
          By the time Mr. May investigated the fire scene, which was more than a year after
the fire, the toaster had already been removed from the trailer.

                                              18

toaster. Unlike Mr. Franck, he determined that the toaster was not the source of the fire; that

he was certain it was not on at the time of the fire; and that the interior of the toaster was

“quite clean,” whereas its exterior looked like it was the “victim” of a fire. He also found “no

physical evidence that confirmed that it was rigged,”31 and he attributed the beading on the

toaster’s electrical cord as being caused by the fire, rather than having caused the fire. He also

disagreed with Mr. Franck’s conclusions regarding “saddle marks” on the toaster cord.32



              Like Mr. May, Mr. Kovarik agreed that the conductors shorted in the living

room lamp’s wiring, which created an arc that produced enough energy to create a fire.33 He

further testified that once the short circuit welded the lamp’s wiring together, it would have

caused the breaker to trip34 which, in turn, would have cut off power to the smoke detector,

rendering it inoperable.



       31
        In criticizing Mr. Franck’s analysis of the toaster, Mr. Kovarik stated that had he
been allowed to retain the toaster for a longer period of time, he would have obtained an
exemplar toaster for comparison.
       32
         Expressing his unfamiliarity with the term “saddle mark,” Mr. Kovarik stated he did
not think those particular words were in “the dictionary of electrical terms that [] [he] kn[e]w
of.”
       33
         When asked on cross-examination whether the short-circuit he found could have
been caused by the fire, rather than causing it, Mr. Kovarik responded that “[i]t’s always
ambiguous when you find electrical activity that’s abnormal in the area of the point of
origin.”
       34
          Mr. Kovarik testified that he could not examine the breaker because it was no longer
in the trailer at the time of his investigation.

                                               19

              With regard to the victim’s financial activities, the defense maintained during

closing argument that the evidence showed that the eighty-one-year-old victim in declining

health wanted to transfer control of her money to her designated heir, the petitioner, through

the creation of joint accounts and the POA. As further support for the victim’s intentions, the

defense stressed that she had further allowed a trust to be created for the petitioner’s benefit.

The defense also maintained that the victim was simply confused when she thought the

petitioner had stolen some of her money from the safety deposit box because those funds had

merely been forwarded to the trust account.35



              In rebuttal, the State recalled Mr. Franck, who testified that the living room

lamp did not cause the fire. He described in some detail how the shape of the beading on the

lamp’s cord showed that it was caused by the fire, rather than causing the fire, which he

contrasted with the shape of the beading on the toaster cord, which showed that it had caused




       35
         Part of the petitioner’s trial strategy was to show that the victim was suffering from
dementia in rebuttal to the testimony of the bank employees who perceived no indication of
mental illness in their interactions with the victim. To that end, he presented the testimony
of a neurologist who testified that his examination of the victim’s brain led him to opine that
she suffered from Alzheimer’s disease, which can cause paranoia. He further testified that
persons with breathing issues often sleep with their window open. The victim’s longtime
friend, Kenneth Elder, testified he was aware of the victim’s breathing problems and that she
slept with her bedroom window slightly open. During the State’s cross-examination of Mr.
Elder, he confirmed that he told an investigator that the victim said she was “scared to death”
of the petitioner.

                                               20

the fire. He further described the evidence showing that the lamp had not short circuited

internally, but was externally attacked by the fire.



              On September 8, 1995, after an eleven-day trial, the jury found the petitioner

guilty of first degree murder without a recommendation of mercy. The circuit court entered

an order on the verdict and sentenced the petitioner to the penitentiary for life without the

possibility of parole. In December 1996, this Court refused the petitioner’s direct appeal. See

State v. Samuel R. Anstey, Docket No. 960855.36



                            B. The Current Habeas Proceeding

              On May 12, 2014, the petitioner filed a petition for a writ of habeas corpus in

the Circuit Court of Fayette County challenging his murder conviction.37 He demanded a new

trial or, in the alternative, an omnibus habeas corpus hearing.38

       36
         The petitioner raised nineteen issues in his direct appeal, which generally fell into
the following areas: (1) insufficient evidence to support the conviction, (2) prosecutorial
misconduct, (3) ineffective assistance of counsel, (4) denial of a fair trial, (5) denial of the
right of confrontation, (6) judicial bias, and (7) improper sanctions.
       37
       See W.Va. Code, §§ 53-4A-1 to -11 (2008) (West Virginia Post-Conviction Habeas
Corpus Act).
       38
        The petitioner has challenged his murder conviction on prior occasions through other
habeas petitions. On February 6, 1998, the petitioner filed a pro se petition for a writ of
habeas corpus in the Circuit Court of Fayette County styled State ex rel. Anstey v. Trent, 98­
C-46 (1998). The circuit court dismissed that petition without a hearing on February 11,
1998. The petitioner appealed the dismissal to this Court, which was refused on December
                                                                                (continued...)

                                               21

              The petitioner asserted in the habeas petition that the advancement of fire

science and arson investigation since his 1995 conviction constitutes newly discovered

evidence and demonstrates that his trial was fundamentally unfair in violation of his right to

due process of law. According to the petitioner, the advancement is represented by NFPA

921. Although first published in 1992, the petitioner contends that NFPA 921 became the

national authority for standards in fire investigation in 2000 upon its endorsement by the

United States Department of Justice.



              According to the petitioner, prior to 2000, the scientific method which forms

the basis of NFPA 921 was not widely accepted and was disregarded by the State’s witnesses

in investigating the trailer fire. He further notes that the only mention of NFPA 921 at trial

was during his counsel’s cross-examination of the State’s expert, Harold Franck, concerning

the tripped breakers. The petitioner maintained that, even as first written, the application of




       38
          (...continued)
16, 1998. His motion to reconsider this Court’s refusal was denied on January 21, 1999.
The petitioner was also denied habeas relief by this Court in a separate matter. See Syl. Pt.
3, State ex rel. Anstey v. Davis, 203 W.Va. 538, 509 S.E.2d 579 (1998) (“Prison inmates have
no constitutional right to possess personal computers in their cells.”). Finally, in February
1999, the petitioner filed a petition for a writ of habeas corpus in the United States District
Court for the Southern District of West Virginia in which he challenged his Fayette County
murder conviction. The District Court rejected the petition as untimely filed. See Anstey v.
Painter, 2000 WL 34012352 (S.D. W.Va. Mar. 16, 2000). The petitioner’s appeal from that
decision was dismissed by the United States Court of Appeals for the Fourth Circuit in
Anstey v. Painter, 20 F.App’x. 171 (4th Cir. 2001).

                                              22

NFPA 921 to the investigation would have put the case in a different light and would have

exposed the conclusions of the State’s witnesses as being objectively unreliable.39



               In response, the State argued that because NFPA 921 was published in 1992,

well in advance of the petitioner’s 1995 trial, it does not qualify as newly-discovered

evidence. Arguing that NFPA 921 has never been compulsory, the State contends the

provisions of NFPA 921 demonstrate that deviations from the procedures set forth therein do

not automatically invalidate an expert’s opinion. The State maintained that the use of NFPA

921 in a new trial would only constitute impeachment evidence and, therefore, could not serve

as a basis for habeas relief. The petitioner replied that, while NFPA 921 is not compulsory,

it goes beyond impeachment evidence and is of significance in the challenge to his conviction.

The petitioner reasons that, at a minimum, he is entitled to an omnibus hearing to explore

more thoroughly the change in science as it relates to the reliability of the evidence used to

convict him.


       39
          For example, the petitioner stated in his petition that one of the State’s investigators
(Lt. Begley), who noticed the toaster on the counter top with its plunger or lever in the down
position, “raised the plunger until it released” and then pushed it back down. He also moved
the toaster to examine it and then placed it back “in what he believed was its original
position.” It was only after all of these actions that Begley photographed the toaster, which
led to the petitioner’s assertion that “[t]he mishandling of the toaster, on which the State
hinged its arson theory, is in direct contravention to the procedures that NFPA 921 requires
for the preservation of evidence.” In addition, the petitioner asserted the State’s
determination that a separate fire occurred in the victim’s bedroom was conclusory and
contravened NFPA 921’s requirement that all data pertaining to the determination of a fire’s
origin be analyzed.

                                                23

              On December 24, 2014, the circuit judge, who presided over the petitioner’s

criminal trial, denied habeas relief. The circuit court found that an omnibus hearing was

unnecessary because the petition and its attached affidavits thoroughly described the claimed

advancements in scientific fire investigation, which was at the heart of the petitioner’s

argument, and that no testimony or other evidence was necessary for the court to rule.



              In denying habeas relief, the circuit court agreed with the State that NFPA 921

is not newly-discovered evidence since it was in existence prior to the petitioner’s trial.

Moreover, noting that NFPA 921 has never been compulsory, the circuit court agreed with

the State that its use in a new trial would be cumulative and constitute nothing more than

impeachment evidence. Finally, the circuit court found that the criticisms set forth in the

affidavits of the petitioner’s new fire experts were not dissimilar to those offered by the

petitioner’s trial experts who testified that the State’s investigative techniques and methods

were flawed and their conclusions erroneous.



              The petitioner appeals to this Court from the circuit court’s December 24, 2014,

order. See W.Va. Code § 53-4A-9 (2008) (providing for appeal to this Court from judgment

under Post-Conviction Habeas Corpus Act).




                                             24

                                    II. Standard of Review

               Although several issues were raised below, in this appeal, the petitioner only

assigns as error the circuit court’s application of the rule governing newly discovered

evidence, specifically as it relates to fire investigation science, and its denial of an evidentiary

hearing. Our review of the circuit court’s final order denying habeas corpus relief is

threefold:

                      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); see also Syl. Pt. 2,

State ex rel. Thompson v. Ballard, 229 W.Va. 263, 728 S.E.2d 147 (2012) (“‘Findings of fact

made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or

reversed on appeal by this Court unless such findings are clearly wrong.’ State ex rel.

Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975).”). Further, “[o]n an appeal

to this Court the appellant bears the burden of showing that there was error in the proceedings

below resulting in the judgment of which he complains, all presumptions being in favor of the

correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 2, Perdue v.

Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). With these standards in mind, we proceed

to determine whether the circuit court erred in denying habeas corpus relief to the petitioner.



                                                25

                                       III. Discussion

              The petitioner sets forth two assignments of error. First, he contends that his

right to due process of law was violated because the habeas court failed to recognize, as

newly-discovered evidence, the scientific advancement in fire investigation since his 1995

conviction. According to the petitioner, this newly-discovered evidence is represented by

NFPA 921, which reflects the standard of care in fire investigation and demonstrates that his

trial and conviction were fundamentally unfair. Second, the petitioner contends that the

newly-discovered evidence is of a scientific and complicated nature such that the habeas court

should have permitted him to develop the record through an omnibus habeas corpus hearing.



                              A. Newly-discovered Evidence

                                   1. The Frazier factors

              In determining whether newly-discovered evidence warrants a new trial, this

Court considers the following factors:

                      “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

                                              26

                 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.” Syllabus
                 Point 1, Halstead v. Horton[,] 38 W.Va. 727, 18 S.E. 953 (1894).

Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979); accord Syl. Pt. 1, State v.

O’Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993); see generally W.Va. R. Crim. P. 33

(addressing motion for new trial based on newly-discovered evidence). All five factors must

be proven before a new trial will be awarded.



                 We begin our analysis by observing that the petitioner has not cited any

controlling appellate authority in this state to the effect that an expert opinion based on a

methodology other than NFPA 921 is inadmissible as inherently unreliable. Nor does the

petitioner assert that NFPA 921 has been generally accepted as authoritative or compulsory

in West Virginia, either at the time of the petitioner’s trial in 1995, or today. Although the

National Fire Protection Association, or NFPA, generally, has been cited in statutory40 and

regulatory laws in this state,41 we cannot find, nor do the parties cite, any statute or regulation

       40
         See W.Va. Code § 29-3-5(b) (2013) (stating, in part, that “the State Fire Commission
shall propose and promulgate comprehensive rules for the safeguarding of life and property
from the hazards of fire and explosion to be known as the State Fire Code. . . . Whenever
any new or revised code or standard is adopted by the fire codes published by the National
Fire Protection Association, the State Fire Commission may propose and promulgate revised
rules reflecting such updated codes and standards”); Teller v. McCoy, 162 W.Va. 367, 375,
253 S.E.2d 114, 120 (1978) (noting that State Fire Commissioner’s regulations include
National Fire Code published by the National Fire Protection Association).
       41
            See also W.Va. C.S.R. § 87-1-2 (2014) (adopting NFPA 1 Fire Code (2012) which
                                                                              (continued...)

                                                27

where the State Fire Commission has expressly adopted NFPA 921 as either a compulsory or

mandatory standard to be followed in fire investigations in this state.42 In fact, the statute

       41
         (...continued)
expressly states that its purpose is “to prescribe minimum requirements necessary to establish
a reasonable level of fire and life safety and property protection from the hazards created by
fire, explosion, and dangerous conditions” and which incorporates by reference other NFPA
standards but not NFPA 921); W.Va. C.S.R. § 87-4-4 (2013) (adopting certain NFPA
provisions with respect to the State Building Code); W.Va. C.S.R. §§ 87-8-1 to -8 (2015)
(referencing NFPA provisions concerning training levels, curriculum approval, and
equipment standards in relation to volunteer firefighters).
       42
          We observe that some jurisdictions have recognized NFPA 921 as either an accepted
reference or standard for fire investigators. See, e.g., McCoy v. Whirlpool Corp., 214 F.R.D.
646, 653 (D. Kan. 2003) (“The ‘gold standard’ for fire investigations is codified in NFPA
921, and its testing methodologies are well known in the fire investigation community and
familiar to the courts.”); Tunnell v. Ford Motor Co., 330 F.Supp.2d 707, 725 (W.D. Va.
2004) (noting that many courts have recognized NFPA 921 as peer reviewed and generally
accepted standard). However, even when courts recognize NFPA 921 as the standard for fire
investigation, they often qualify that recognition.
               For example, in Fireman’s Fund Insurance Co. v. Canon U.S.A., Inc., 394 F.3d
         th
1054 (8 Cir. 2005), the Court of Appeals concluded that “[b]ecause the experts did not
apply the principles and methods of NFPA 921 reliably to the facts of the case, the district
court did not abuse its discretion in concluding that [the] . . . expert opinions were
unreliable.” Id. at 1060. One year later, however, the same court upheld the admissibility
of a fire expert’s opinion testimony without reference to NFPA 921. See Hickerson v. Pride
Mobility Prods. Corp., 470 F.3d 1252, 1257 (8th Cir. 2006) (addressing defendants’
contention that plaintiff’s fire cause and origin expert’s opinions were unsupported by
“reliable methodology” and concluding that expert’s methodology was sound, noting his
examination of burn patterns and heat, fire, and smoke damage, and his consideration and
elimination of other possible causes of fire in area of origin). Two years later, the Eighth
Circuit rejected a litigant’s attempt to rely upon Fireman’s Fund for the proposition that “all
expert testimony on fire causation must be supported by appropriate testing.” Shuck v. CNH
America, LLC, 498 F.3d 868, 875 n.3 (8th Cir. 2007). As the Court of Appeals explained,

              Fireman’s Fund does not stand for a bright line rule that expert
              opinions in fire cases always must be supported by testing to be
              admissible. Rather, Fireman’s Fund stands for the more general
                                                                                 (continued...)

                                              28

pertaining to the State Fire Marshal’s fire investigations does not mention NFPA 921. See

W.Va. Code § 29-3-12(f) (stating, in part: “The State Fire Marshal may, at any time,

investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire

or explosion occurring in the state.”).43 Although the petitioner’s trial counsel relied upon

NFPA 921 to criticize aspects of the investigations conducted by the State’s fire investigators,

the petitioner has failed to supply any authority that the State’s cause and origin investigation

had to follow the method outlined in the NFPA 921 to be admissible at the time of his trial.

Moreover, even after the U.S. Department of Justice described NFPA 921 as having “become

a benchmark for the training and expertise of everyone who purports to be an expert in the

origin and cause determination of fires[,]”44 NFPA 921 continues to be described in terms of




       42
            (...continued)
                  propositions that testing, if performed, must be appropriate in
                  the circumstances and must actually prove what the experts
                  claim it proves.
Id.
       43
         The petitioner states in his brief that some state legislatures have passed resolutions
stating that NFPA 921 is the standard of care in fire investigations. In that regard, whether
NFPA 921 is adopted as the compulsory or mandated standard to be followed in fire
investigations in West Virginia is a matter of fire policy that is best left to the State Fire
Commission and/or the state legislature.
       44
         See Fire and Arson Scene Evidence: A Guide for Public Safety Personnel, Research
Report, U.S. Department of Justice, Office of Justice Programs, Technical Working Group
on Fire/Arson Scene Investigation, p. 6 (June 2000), https://www.ncjrs.gov/pdffiles1/nij/181
584.pdf.

                                                29

constituting “guidelines.”45 In fact, NFPA 921 itself provides that its procedures are not

compulsory, expressly stating in § 1.3 that “[d]eviations from these procedures, however, are

not necessarily wrong or inferior but need to be justified.”



              When analyzed under the Frazier factors, it becomes abundantly clear that

periodic amendments to NFPA 921 do not constitute newly-discovered evidence that would

warrant a new trial in the case at bar. See also Green v. Koerner, 312 F.App’x. 105, 110 (10th

Cir. 2009) (affirming denial of habeas petition where petitioner cited developments in fire

science since her conviction in 1995, and finding that state developed case based on best

forensic techniques available at that time, “even if later scientific developments put those

techniques into question”). In addition, we agree with the circuit court’s conclusion that the

affidavits of the petitioner’s new fire experts– Gerald Hurst, a consulting chemist and expert

on fire analysis, and Mark Goodson, an electrical engineer and expert in fire investigation and




       45
         See Barr v. Farm Bureau Gen. Ins. Co., 806 N.W.2d 531, 533 (Mich. Ct. App. 2011)
(addressing plaintiff’s criticism of state fire marshal investigator’s methodology as allegedly
deviating from “set of guidelines” referred to as NFPA 921 and observing that “deviations
from its procedures are not necessarily wrong, but need to be justified.”); Sanders v.
Nationwide Mut. Ins. Co., No. 99954, 2014 WL 2565770, at *3 (Ohio Ct. App. June 5, 2014)
(noting that fire expert, who was member of National Fire Protection Association, testified
that “NFPA publishes a recommended guideline called NFPA 921”) (emphasis added);
Stremke v. Fisher & Paykel Appliances, Inc., No. 71424-4-I, 2015 WL 5345399, *3 n.4
(Wash. Ct. App. Sept.14, 2015) (observing that defendant offered no authority for argument
that NFPA 921 is “tantamount to a legally enforceable duty.”).

                                              30

causation–reflect they would merely offer cumulative evidence directed towards impeaching

the State’s fire experts, making the third and fifth Frazier factors unavailing.46



               Mr. Hurst states in his affidavit that NFPA 921 is updated every three or four

years and describes the fire investigation procedures that are to be followed in any fire

investigation. He concludes the only scientifically supportable conclusion is that the cause

and origin of the trailer fire remains “undetermined.” Mr. Hurst also avers “to a reasonable

degree of scientific certainty” that the State’s fire investigation, under current NFPA 921

standards, “did not conform to recommended fire investigative protocol, was not conducted

in a methodical and reliable fashion, and did not utilize the scientific method to determine

origin and causation.” Specifically, he determined that the State’s hypothesis–that a fire

originated with the toaster in the kitchen and in the victim’s bedroom–was not scientifically

valid and was the product of “expectation bias,” rather than validation through the scientific

method.47




       46
        Frazier, 162 W.Va. at 935-36, 253 S.E.2d at 535, syl., in part (new evidence must
not be merely cumulative, i.e., of same kind to same point, and new trial will generally be
refused when sole object of new evidence is to discredit or impeach witness on opposite
side).
       47
         Assistant State Fire Marshal York testified that he was called to the fire scene the
day of the fire to investigate because there was a possible fatality; that he did not know at that
time whether the fire was accidental; and that the petitioner was not a suspect at that time.

                                                31

              Significantly, Mr. Hurst’s criticisms, at their essence, echo those addressed by

defense counsel during his cross-examination of the State’s fire experts, as well as those

voiced by the petitioner’s experts at trial. For example, although Mr. Hurst contends the

State’s expert (Harold Franck) formed a hypothesis and then set out to prove its validity, Mr.

Franck’s trial testimony reflects that he took possession of the toaster for a closer examination

in his lab because it was the sole potential cause of the fire in what he had determined to be

the area of fire origin. Mr. Franck also examined the electrical outlet into which the toaster

had been plugged to determine whether it was involved in causing the fire. The fact that the

results of his analyses pointed to an incendiary fire does not indicate that he set out to prove

arson.



              Mr. Hurst also criticizes the State’s investigators’ conclusion that there was a

second incendiary fire, as well as their failure to seize the purportedly discolored linoleum

surrounding the vent in the victim’s bedroom,48 and the failure to consider the possibility that

the charred debrís recovered from the purported second fire could have been carried into the

room during fire suppression and investigation. He further criticizes their reliance on “V”

burn patterns in the trailer;49 their photographing the circuit breaker to the smoke detector in

         48
          Although the State’s investigators did not seize the linoleum, they did photograph
it as it was found.
         49
        While Mr. Hurst states that Mr. Franck’s use of the “V” pattern near the toaster to
conclude that the fire origin was at the toaster is contrary to empirical studies, Mr. Franck’s
                                                                                   (continued...)

                                               32

the “off” position without recognizing that the breaker had been turned to that position after

the fire; and their failure to consider locations other than the kitchen counter top as possible

points of origin. Mr. Hurst was also critical of Mr. Franck’s analysis regarding a “saddle

mark” on a section of the toaster cord, the beading on the toaster wire, and his reliance on the

“patterns” inside the toaster as a basis to conclude that the cord had been stuffed inside the

toaster. Again, as discussed above, each of these areas of criticism was fully explored either

in defense counsel’s vigorous cross-examination of the State’s experts, or through the trial

testimony of the petitioner’s fire experts, or both.50



              The petitioner’s other new expert is equally critical of the State’s investigation.

In his affidavit, Mark Goodson describes how NFPA 921 incorporates the scientific method

into the field of fire investigation and has become the standard for assessing the reliability of

expert testimony.51 Following his review of those portions of the trial transcript and exhibits

       49
          (...continued)
trial testimony reveals that the “V” pattern was but one factor that he considered. As
Lieutenant Begley testified, a “V” pattern, while not conclusive, is one indicator of a fire’s
point of origin.
       50
        The circuit court noted in its habeas order that the petitioner’s defense team was
comprised of two “smart, aggressive, well-known and well-respected lawyers,” one of whom
previously served as a justice of this Court and is currently a sitting circuit court judge in
West Virginia.
       51
         Mr. Goodson sets forth in his affidavit the six steps in NFPA 921 for fire
investigation. In summary, those steps are directed to: (1) recognizing that a fire or explosion
has occurred; (2) defining the problem by examining the scene and reviewing previously
                                                                                   (continued...)

                                               33

specifically related to the fire, Mr. Goodson concludes that the State’s cause and origin

witnesses did not follow the scientific method in connection with their investigation of the

trailer fire, and they used methods that are not currently accepted within the fire investigation

community today. He found Mr. Franck’s analyses and opinions to be so flawed as to compel

improper conclusions, particularly with regard to Mr. Franck’s analysis of the toaster and its

cord. These criticisms are not unlike those expressed by the petitioner’s trial expert, Charles

Kovarik, as discussed above. Further, although Mr. Goodson states that Mr. Franck should

have microscopically documented the contact between the toaster cord and the heating

element, the record shows that during Mr. Franck’s trial testimony, he specifically references

his “microscopic examination of these wires[.]” Mr. Goodson also cites Mr. Franck’s failure

to consider that Lieutenant Begley found the circuit breaker connected to the smoke detector

was tripped and moved it to the “off” position. Again, this criticism was developed during

the cross-examination of Mr. Franck and the other witnesses for the State, and in the direct

testimony of the petitioner’s fire experts.52

       51
         (...continued)
conducted investigations of the incident, interviewing of witnesses, etc.; (3) collecting data
based on observation or experience; (4) analyzing the data in the light of the investigator’s
knowledge, training, and experience; (5) developing a hypothesis based on the data analysis
of the data collected; and (6) testing the hypothesis by eliminating all other reasonable origins
and causes and comparing hypothesis to all known facts. Even if we were to assume that the
fire experts who investigated the subject fire were required to follow NFPA 921, we cannot
say that their respective investigations, at their essence, drastically deviated from these six
steps.
       52
            Mr. Goodson also criticizes Mr. Franck’s testimony regarding the smoke detector,
                                                                               (continued...)

                                                34

              Based on all of the foregoing, it is clear that the attack advanced by the

petitioner’s current experts, while framed as deviations from NFPA 921 and “scientific”

methodology, is, at is essence, simply rebuttal and impeachment evidence.53 Furthermore, the

evidence the petitioner seeks to rely upon is cumulative of the petitioner’s trial experts who

thoroughly criticized the State’s investigation as being faulty and inaccurate. As the circuit

court correctly observed:

                      [o]f great importance and significance is the fact that
              indeed two (2) expert witnesses did testify at trial on behalf of the
              Petitioner. Both of said expert witnesses were unequivocally and
              clearly critical and contradictory of the State’s expert witnesses,
              and both of the defense trial experts testified that the fire in the
              trailer was accidental in origin and that it was not started
              intentionally. The Petitioner’s new expert witnesses may have
              had the benefit of approximately twenty (20) years of
              advancement in fire science, but the bedrock of their proposed
              testimony would certainly be the same as was the testimony of the
              Petitioner’s two (2) experts who testified at trial, i.e. that the
              State’s experts’ investigative techniques and methods were
              flawed, and their conclusions wrong.




       52
         (...continued)
noting that Mr. Franck thought it was “probably a carbon monoxide detector,” when it was
not. Mr. Goodson fails to mention, however, that Mr. Franck later testified during cross-
examination he was not saying that it was a carbon monoxide detector.
       53
         Under the fifth Frazier factor, while new impeachment evidence will not normally
mandate a new trial, we have also stated that a new trial should be granted where the first
four factors are met and the new impeachment evidence concerns the key prosecution
witness. State v. Stewart, 161 W.Va. 127, 136, 239 S.E.2d 777, 783 (1977). Because we
find that the other Frazier factors are not met here, a new trial not required.

                                               35

              The opinions of Mr. Franck and Mr. York were the result of a reliable process.

Both collected data; took photographs; noted the extent of damage in the various areas of the

trailer; and eliminated potential accidental causes for the fire by examining appliances and

electrical circuitry and outlets. Mr. Franck took the toaster and other materials to his lab where

they were subjected to further examination. Accordingly, we agree with the circuit court’s

conclusion that NFPA 921, the advancement of scientific method in the field of fire

investigations, and the criticism expressed by the petitioner’s new experts goes to the weight

to be attributed to the testimony of Mr. Franck and Mr. York–not to its admissibility at trial.

See Schlesinger v. United States, 898 F.Supp.2d 489, 504-05 (E.D. N.Y. 2012) (observing that

“no court in this circuit . . . has refused to admit expert testimony in an arson case because his

or her opinion was based on a methodology other than that prescribed in NFPA 921”; finding

that fire investigator’s conclusion that fire was incendiary was based on his years of experience

and his physical inspection of fire premises; and concluding that “[t]he decision not to follow

the methodology set forth in NFPA 921, as well as other purported flaws in the [investigator’s]

[] methodology . . . goes to the weight of the evidence, not its admissibility.”). Indeed, once

all of the expert testimony was received into evidence, “it was left to the jury to evaluate that

testimony and give it the weight to which it was entitled.” State v. Shingleton, No. 12-1445,

__ W.Va. __, __ S.E.2d __, at *10 (Mar. 24, 2016) (citation omitted); see also People v.

Jackson, No. 272776, 2008 WL 2037805, at *1 (Ct. App. Mich. May 13, 2008) (addressing

defendant’s challenge to opinions of state’s fire expert based on NFPA 921 and concluding


                                               36

that deviations from those procedures are not necessarily wrong or inferior and did not render

expert’s opinion inadmissible since “[s]uch criticisms go to the weight rather than the

admissibility of the testimony.”).



              The fourth Frazier factor is perhaps most problematic for the petitioner—that

his purported newly-discovered evidence ought to produce an opposite result at a second trial

on the merits. Although we have found no legal authority demonstrating that NFPA 921 is

either a compulsory or mandated standard for fire investigations in this state, the fact remains

that the criticisms being offered by the petitioner’s new experts are not new and their

conclusions are less favorable than those offered by the petitioner’s trial experts, who were

confident in their respective opinions that there was a single, accidental fire. In other words,

if the jury reached its unanimous verdict54 based on the substantial circumstantial evidence

presented against the petitioner, coupled with the State’s expert testimony that was subjected

to thorough cross-examination, we cannot find that similar criticisms offered by the petitioner’s




       54
         Following an eleven-day trial, the jury returned its verdict in less than three hours,
finding the defendant guilty of first degree murder without a recommendation of mercy.

                                               37

new fire experts are likely to produce an opposite result at a second trial.55 As the circuit court

aptly summarized:

              The Court, having presided over the Petitioner’s eleven (11) day
              jury trial and having reviewed the transcript thereof, finds that
              there was, beyond any doubt, overwhelming evidence clearly
              supporting the jury’s unanimous guilty verdict. The Petitioner
              was the only person, other than the victim, who lived in the trailer
              and was in the trailer the night of the fire; the State’s physical
              evidence concerning the conditions of the aforementioned electric
              bread toaster following the fire was and clearly would be
              suspicious to any reasonable person without any further
              interpretation or opinion by any expert witness; the Petitioner’s
              use of weather stripping to seal the area around his bedroom door,
              despite his very weak argument that securing towels and other
              materials with weather stripping around his bedroom door was to
              suppress or prevent noise made by the Petitioner from disturbing
              the victim in her bedroom, would clearly be considered, by any
              reasonable person, to be highly suspicious conduct and
              circumstances; the Petitioner’s gaining sole control of the victim’s
              CDs, totaling in excess of found [sic] hundred thousand dollars
              ($400,000.00) following her death; and the victim’s revocation of
              the aforementioned power of attorney within six (6) days and
              victim’s desire to disinherit the Petitioner, expressed to Mr. Tissue


       55
        In State v. Davis, 217 W.Va. 93, 616 S.E.2d 89 (2004), the petitioner asserted that
she should have been granted a second trial based on new genetic testing that had been
performed on her son. We concluded that

              [a]lthough it may be argued that the genetic test allegedly
              proving that Seth had the condition was not available at trial, in
              this Court’s view, the results of the test were merely cumulative
              of what was presented at trial. . . . Overall, the evidence was not
              such “as ought to produce a second trial on the merits,” and
              consequently, it cannot be said that the circuit court abused its
              discretion in denying a new trial on the new genetic test results.

Id. at 100, 616 S.E.2d at 96.

                                                38

              a mere six (6) days prior to the fatal fire, which clearly is strong
              direct and circumstantial evidence, strongly supports the jury’s
              unanimous guilty verdict, which was reached after two (2) hours
              and forty-nine (49) minutes of deliberations.

Having considered this evidence, as well as the evidence given by neighbors and longtime

friends who testified the victim told them the petitioner was verbally and physically abusive

towards her and that all he wanted was her money,56 we concur in the circuit court’s

inescapable conclusion that

              the expert testimony which the Petitioner now seeks to use as
              “newly discovered evidence” is clearly not “such as ought to
              produce an opposite result at a second trial on the merits” as
              required by Frazier. The Court concludes, having heard all the
              evidence at trial, that had the Petitioners “new” experts testified
              at trial, the jury’s verdict would have been the same.

Accordingly, we uphold the circuit court’s denial of habeas relief on the basis that the

petitioner cannot meet the Frazier factors for newly discovered evidence.




       56
          At first blush, Bunch v. State, 964 N.E.2d 274 (Ct. App. Ind. 2012), seemingly
supports the petitioner’s argument herein. In Bunch, the petitioner appealed the denial of her
habeas petition wherein she sought to overturn her felony murder conviction based on newly-
discovered evidence. The appellate court reversed, determining that advances in the field of
fire victim toxicology analysis constituted newly-discovered evidence that warranted a new
trial. However, in reaching its decision, the court repeatedly noted that the prosecution had
offered no motive evidence for Bunch to have intentionally set the fire that killed her son.
In clear contrast to Bunch, here, the State presented a tremendous amount of motive evidence
against the petitioner, including testimony that the petitioner was abusive of the victim and
repeatedly sought money from her, and that the victim planned to disinherit the petitioner of
hundreds of thousands of dollars.

                                              39

                               2. Due Process Violation and
                            Inadmissibility of Expert Testimony

              In further support of his newly discovered evidence argument, the petitioner also

asserts that his due process rights were violated because the investigative techniques used

during the investigation of the subject fire would not be admissible at trial today, under a

Daubert/Wilt analysis, since fire investigations have become “scientific.” See Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Wilt v. Buracker, 191 W.Va. 39, 443

S.E.2d 196 (1993). In Wilt and Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995),

we adopted a Daubert analysis which imposes a “gatekeeper” duty upon trial courts to screen

scientific expert opinions to ensure relevancy and reliability.



              We first note that the petitioner’s argument on appeal is somewhat different from

the argument he raised before the circuit court, which was ineffective assistance of trial

counsel for their failure to raise a Daubert challenge to the State’s experts’ testimony at trial.

The circuit court disagreed, finding that Daubert “does not and did not apply to the State’s

expert witnesses.” As the State points out, if the methods employed by the State’s experts were

non-scientific, as the petitioner asserts, then Daubert/Wilt does not apply. See Watson v. Inco

Alloys Intern., Inc., 209 W.Va. 234, 545 S.E.2d 294 (2001) (finding expert engineer’s opinion

testimony was technical, not scientific, thus Daubert/Gentry gatekeeper analysis did not apply).




                                               40

                 Even today, the admissibility of the State’s expert testimony would be assessed

under Rule 702 of the West Virginia Rules of Evidence57 as evidence based on technical or

specialized knowledge—and not under Daubert/Wilt.58 See, e.g., State v. McCracken, 218


       57
            Rule 702 (2014) provides:

                        (a) If scientific, technical, or other specialized knowledge
                 will assist the trier of fact to understand the evidence or to
                 determine a fact in issue, a witness qualified as an expert by
                 knowledge, skill, experience, training, or education may testify
                 thereto in the form of an opinion or otherwise.
                        (b) In addition to the requirements in subsection (a),
                 expert testimony based on a novel scientific theory, principle,
                 methodology, or procedure is admissible only if:
                        (1) the testimony is based on sufficient facts or data;
                        (2) the testimony is the product of reliable principles and
                 methods; and
                        (3) the expert has reliably applied the principles and
                 methods to the facts of the case.
       58
         In this regard, we decline the petitioner’s invitation to adopt Kumho Tire Co. Ltd.
v. Carmichael, 526 U.S.137 (1999), wherein the Supreme Court “ultimately concluded that
the gatekeeper function of Daubert also applied to expert testimony based on technical or
other specialized knowledge.” Watson, 209 W.Va. at 241 n.11, 545 S.E.2d at 301 n.11.
Further, even if the methodology employed by the fire investigators in 1994 had been
scientific, rather than technical, the petitioner does not cite any decision of this Court where
we have applied Daubert/Gentry retroactively in a habeas proceeding. Indeed, an alleged
error in the admission of scientific evidence that did not meet the Daubert standard is not
cognizable in a habeas corpus proceeding. See State ex rel. Thompson v. Ballard, 229 W.Va.
263, 728 S.E.2d 147 (2012) (affirming denial of habeas relief and noting that alleged error
in admission of scientific evidence that did not meet Daubert standard was not cognizable
in habeas corpus where such rulings did not rise to constitutional level); Syl. Pt. 4, State ex
rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979) (“A habeas corpus
proceeding is not a substitute for a writ of error in that ordinary trial error not involving
constitutional violations will not be reviewed.”); see also Romano v. State, 909 P.2d 92, 112
(Okla. Crim. App. 1995) (“[W]e will not apply the Daubert analysis retroactively to scientific
subjects previously accepted as valid for expert testimony.”).

                                                  41

W.Va. 190, 624 S.E.2d 537 (2005) (finding no abuse of discretion in trial court’s admission

of testimony of fire investigator under Rule 702, noting that expert was firefighter for more

than forty years, was retired lead fire investigator, and served as consultant in fire and arson

investigations, and observing that defense had opportunity to cross-examine witness regarding

any issues raised).



              Given the absence of any authority demonstrating that NFPA 921 is a

compulsory or mandatory standard for fire investigators in West Virginia, either today, or in

1995, we find that the petitioner was not denied his right to a fair trial and due process of law

through the admission of the testimony of the State’s experts. See Jackson v. McQuiggin, No.

10-12426, 2012 WL 5410993, at *6 (E.D. Mich. Nov. 6, 2012), aff’d, Jackson v. McQuiggin,

553 F.App’x. 575 (6th Cir. 2014) (finding habeas petitioner’s state court trial was not

fundamentally unfair nor were his due process rights violated by trial court’s decision to admit

testimony of state’s fire expert, citing with approval state appellate court’s conclusion that

“NFPA 921 expressly provides that it contains only nonmandatory provisions; it merely sets

guidelines and recommendations for fire investigations, not requirements.”). For these reasons,

we find no abuse of discretion in the circuit court’s habeas ruling.




                                               42

                             B. Denial of Evidentiary Habeas Hearing

              The petitioner argues that the circuit court abused its discretion in denying his

request for an evidentiary hearing because it has prevented him from demonstrating the

substantial impact of the new fire investigation science on the expert testimony presented at

his trial. The State asserts that the circuit court did take evidence on the petitioner’s newly

discovered evidence through the affidavits of his new experts, and contends that the petitioner

has failed to explain what additional evidence the circuit court needed to address his claim.



              As provided in West Virginia Code § 53-4A-7(a) (2008), the decision to hold an

evidentiary hearing is at the discretion of the circuit court:

                      If the petition, affidavits, exhibits, records and other
              documentary evidence attached thereto, or the return or other
              pleadings, or the record in the proceedings which resulted in the
              conviction and sentence . . . show to the satisfaction of the court
              that the petitioner is entitled to no relief, or that the contention or
              contentions and grounds (in fact or law) advanced have been
              previously and finally adjudicated or waived, the court shall enter
              an order denying the relief sought.

Further, we have previously held that

              “[a] court having jurisdiction over habeas corpus proceedings may
              deny a petition for a writ of habeas corpus without a hearing and
              without appointing counsel for the petitioner if the petition,
              exhibits, affidavits or other documentary evidence filed therewith
              show to such court’s satisfaction that the petitioner is entitled to
              no relief.” Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467,
              194 S.E.2d 657 (1973).

Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).

                                                43

              The circuit court judge was in the unique position of having also presided over

the petitioner’s eleven-day murder trial. Consequently, he was intimately familiar with the trial

evidence59 when assessing the affidavits of the petitioner’s new experts, which he found had

“thoroughly set forth the nature of the claimed advancements in scientific fire investigation

which constitutes the crux of the Petitioner’s argument,” and which led to the court’s

conclusion that “no testimony or other evidence [was] [] necessary for the Court to rule upon

the application of the relevant law[.]” The circuit court’s decision in this regard is adequately

supported by its thirty-six-page order that recounts the evidence from the petitioner’s criminal

trial, as well as its “careful review” of the parties’ briefs and the new expert affidavits, which

led it to conclude that “the relevant facts of the case . . . have been sufficiently and adequately

developed” for the court to rule as a matter of law. The circuit court’s factual findings and

legal conclusions are certainly sufficient to meet Rule 9(a) of the Rules Governing Post-

Conviction Habeas Corpus Proceedings in West Virginia, which provides that “[i]f the court

determines that an evidentiary hearing is not required, the court shall include in its final order

specific findings of fact and conclusions of law as to why an evidentiary hearing was not

required.”




       59
         The circuit court expressly stated in its order that it had engaged in a “full, careful,
[and] thorough consideration and review” of the “complete contents of the court file in the
Petitioner’s underlying criminal case[,]” as well as the complete habeas file.

                                                44

              Based on our review of the trial and habeas proceedings, and for the reasons set

forth above, we agree that the nature of the claimed advancements in scientific fire

investigation were sufficiently addressed in the parties’ briefs and expert affidavits filed below,

and we find no abuse of discretion in the circuit court’s decision to rule without first holding

an evidentiary hearing.



                                        IV. Conclusion

              For the foregoing reasons, we find no reversible error in the circuit court’s

December 24, 2014, order denying the petitioner’s request for habeas corpus relief.

                                                                                        Affirmed.




                                                45

