Rash v. Plumley

Decision Date30 March 2011
Docket NumberNo. 12-0564,12-0564
PartiesRay Rash, Petitioner, Petitioner v. Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent, Respondent
CourtWest Virginia Supreme Court

Ray Rash, Petitioner, Petitioner
v.
Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent, Respondent

No. 12-0564

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: May 24, 2013
ENTER.
March 30, 2011


(Mercer County 11-C-22)

MEMORANDUM DECISION

Petitioner Ray Rash's appeal, filed by counsel Phillip Scantlebury, arises from the Circuit Court of Mercer County, wherein petitioner's petition for writ of habeas corpus was denied by order entered on March 30, 2012. Respondent Marvin Plumley, Warden, by counsel Laura Young, filed a response in support of the circuit court's decision.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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

Following a jury trial in May of 2007, petitioner was convicted of three counts of various sexual abuse charges and sentenced to ten to twenty years in prison. On appeal, we upheld petitioner's convictions. Petitioner subsequently petitioned for writ of habeas corpus in circuit court. Following two omnibus evidentiary hearings on his initial petition and his amended petition, the circuit court entered its twenty-two-page order denying petitioner habeas corpus relief. In the petition below, petitioner raised several different arguments, including ones he raises on appeal.

Petitioner Rash asserts in his petition for appeal that, in addition to the assignments of error specified in his brief, he incorporates by reference his original petition and amended petition for habeas corpus relief filed in circuit court. Respondent Warden precedes his response to petitioner's arguments on appeal by challenging petitioner's desire to incorporate his circuit court petitions. Respondent reiterates our prior sentiment that, "[a] skeletal 'argument,' really nothing more than an assertion, does not preserve a claim . . . Judges are not like pigs, hunting for truffles buried in briefs." State Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995). In light of petitioner's skeletal argument to incorporate any arguments formulated below, we proceed by only reviewing the developed arguments contained in petitioner's petition on appeal.

Page 2

First, Petitioner Rash argues that he was prejudiced by a seventeen-year delay before he was indicted on the sexual abuse charges for which he was later convicted. He argues that his trial counsel was ineffective in failing to move to dismiss his case based on this issue and that the trial court committed plain error by failing to conduct a hearing, sua sponte, on this issue. In response, Respondent Warden contends that petitioner has failed to prove any error by the circuit court in its determinations of this issue or show that he was prejudiced from any delay in this case. Second, petitioner argues that he was provided ineffective assistance of counsel because there was a "prosecutorial overmatch," asserting that the prosecuting attorney at trial had experience with numerous sexual abuse cases, whereas his trial counsel had no experience in this area prior to petitioner's case. In response, Respondent Warden offers our prior holding on this issue: "'The gravamen of any 'prosecutorial overmatch' claim is proof of ineffectiveness of counsel as determined by reference to the trial record.' Syl. pt. 1, Acord v. Hedrick, [176] W.Va. [154], 342 S.E.2d 120 (1986)." Syl. Pt. 1, State v. Collins, 177 W.Va. 514, 354 S.E.2d 610 (1987). Respondent argues that petitioner has failed to prove any prosecutorial overmatch outside of his argument that his trial counsel failed to file a motion to dismiss the indictment due to the delay. Respondent further highlights that petitioner's trial counsel secured a hung jury before the case was tried the second and final time in May of 2007.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

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

With regard to arguments concerning pre-indictment delay, we have held as follows: "To maintain a claim that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the defendant must show actual prejudice." Syl. Pt. 2, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).

The following standard is applied to claims concerning ineffective assistance of counsel:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

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Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Our review of the record uncovers no error by the circuit court in denying habeas corpus relief to petitioner based on his arguments on appeal. The circuit court's order reflects its thorough analysis concerning petitioner's argument with regard to pre-indictment delay and concerning petitioner's argument with regard to his trial counsel's performance. Having reviewed the circuit court's "Order Denying Petitioner's Petition for Writ of Habeas Corpus" entered on March 30, 2012, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

CONCURRED IN BY:

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

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STATE OF WEST VIRGINIA, EX REL, RAY RASH, Petitioner,

v.

ADRIAN HOKE, HUTTONSVLLLE CORRECTIONAL CENTER, Respondent.

Civil Action No. 11-C-22-DS
Judge David W. Knight

ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS

On January 13, 2011, Petitioner Ray Rash filed a pro se Petition for Writ of Habeas Corpus pursuant to West Virginia Code § 53-4A-1. Following appointment of Philip A. Scantlebury as Petitioner's counsel, an Amended Petition was filed on May 23, 2011. Respondent, by Kelli L. Harshbarger, filed a Response to Amended Petition, and an omnibus hearing was held on September 9, 2011. Testimony adduced during the omnibus hearing revealed that Petitioner's trial counsel had spoken with the previously-presiding Judge Omar Aboulhosn's law partners during the time that trial counsel represented Petitioner in the underlying criminal action. Accordingly, Judge Aboulhosn recused himself, and Judge David W. Knight was appointed as special judge. Thereafter, the parties reappeared for an omnibus hearing on March 12, 2012. This Court has fully considered the parties' filings, testimony provided in both omnibus hearings, and relevant case and statutory law. Accordingly, it makes the following findings of facts and conclusions of law.

FINDINGS OF FACT

1. On October 13, 2005, Petitioner was indicted on six counts of sexual abuse of two minor children under the age of eleven. The first four counts related to alleged sexual abuse of

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E.C.H, occurring between November 1989 and December 1989. The remaining two counts related to the alleged sexual abuse of AX., which between during November 2001 and February 2002.

2. Petitioner was first tried in April of 2007; however, the jury was deadlocked, and a mistrial was declared.

3. At the conclusion of the second trial, on May 30, 2007, Petitioner was found guilty of count one - sexual abuse in the first degree; count three - sexual assault in the first degree; and count four - sexual abuse by a custodian. Petitioner was acquitted of counts five and six, and the State had dismissed count two during the trial.

4. Petitioner appealed his conviction to the Supreme Court of Appeals of West Virginia, and the court upheld his conviction by decision dated June 7, 2010.

5. On January 13, 2011, Petitioner filed the instant...

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