Robert R. v. Ames

• Decision Date: 12 January 2022
• Docket Number: 21-0379
• Court: Virginia Supreme Court
• Parties: Robert R., Defendant Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Plaintiff Below, Respondent

Robert R., Defendant Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Plaintiff Below, Respondent

No. 21-0379

Supreme Court of Appeals of West Virginia

January 12, 2022

Mineral County 20-C-50

MEMORANDUM DECISION

Self-represented petitioner Robert R.^[1] appeals the May 6, 2021, order of the Circuit Court of Mineral County denying his second petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick Morrisey and Mary Beth Niday, filed a response in support of the circuit court's order. Petitioner filed a reply.

The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In September of 2010, petitioner was indicted on fifty-six counts of various sexual offenses alleged to have been perpetrated against four separate minors. Prior to trial, twenty-one counts of the indictment were dismissed. At trial, the jury convicted petitioner of thirty sexual offenses, but it was unable to reach a verdict on the remaining five. The circuit court subsequently sentenced

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petitioner to an aggregate term of 125 to 295 years of incarceration. Petitioner filed an appeal in State v. Robert Scott R., Jr. ("Robert R. I"), 233 W.Va. 12, 754 S.E.2d 588 (2014), and this Court affirmed his convictions. Id. at 27, 754 S.E.2d at 603.

On September 15, 2014, petitioner filed a petition for a writ of habeas corpus. Habeas counsel was appointed, who filed an amended petition raising prejudicial pretrial publicity, ineffective assistance of counsel, constitutional errors in evidentiary rulings, and the presence of a tainted juror on the jury as grounds for relief. Petitioner "waive[d] all other potential Losh grounds, as indicated by . . . [p]etitioner's initials and signatures on the Losh [l]ist to be filed contemporaneously" with the amended petition.^[2] Relevant here, on the Losh list, petitioner waived grounds 50 and 51: severer sentence than expected and excessive sentence. Petitioner certified that habeas counsel advised him that he "should raise each and every ground which I feel may entitle me to habeas corpus relief" and "any grounds not raised are waived by me and may not be raised in [s]tate [c]ourt," and that "I do not wish to raise any of the grounds initialed and dated above, and knowingly waive them." In the certification submitted by habeas counsel, counsel stated that "[p]etitioner, after consulting with counsel, desires to raise none of the grounds so checked and to [the] best of counsel's knowledge, knowingly, intelligently, and voluntarily waives said grounds for the purpose of this proceeding and all future state habeas corpus proceedings."

Following an omnibus hearing, the habeas court entered an order denying the amended petition. Petitioner appealed the habeas court's order in Robert R. v. Terry ("Robert R. II"), No. 16-1121, 2018 WL 317313 (W.Va. Jan. 8, 2018) (memorandum decision), arguing that the habeas court erred in denying his claim of ineffective assistance of trial counsel and that he was prejudiced by cumulative trial error. Id. at *2. This Court in Robert R. II rejected petitioner's assignments of error and affirmed the denial of habeas relief. Id. at *2-4.

On October 26, 2020, petitioner filed the instant petition alleging that habeas counsel provided ineffective assistance in the first proceeding. Petitioner stated his claim in a single paragraph:

Petitioner's [h]abeas [c]orpus counsel was constitutionally defective for failing to present a disproportionate/excessive sentence claim. Petitioner's sentence is egregiously disproportionate and should shock the con[s]cience of the judiciary. Other circuit courts have sentenced people to less for similar and for worse offenses Counsel was also constitutionally defective for failing to preserve colorable claims for relief on appeal. AEDPA requires that claims for relief are exhausted in the [s]tate [s]urpeme [c]ourt before they can be presented to the federal

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courts.[^[3] Habeas counsel failed to present many of [p]etitioner's claims on appeal to the [West Virginia Supreme Court of Appeals], thus denying the [p]etitioner the ability to raise these claims in federal court. Note that [p]etitioner's AEDPA time is still active because, up until recently, [p]etitioner's [m]otion for [r]eduction of [s]entence was still pending in this [c]ourt. Had habeas counsel presented the disproportionate sentence claim to this court, the [p]etitioner would have been resentenced to a lesser sentence. Additionally[, ] had habeas counsel properly

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