STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Thomas Arnett,
Petitioner Below, Petitioner FILED
October 21, 2013
RORY L. PERRY II, CLERK
vs) No. 12-1441 (Harrison County 11-C-514) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Marvin Plumley, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Thomas Arnett, by counsel Daniel Cooper and Jamison Cooper, appeals the
Circuit Court of Harrison County’s order entered on November 13, 2012, denying his petition for
writ of habeas corpus. Respondent Warden Marvin Plumley, by counsel Marland Turner, filed a
response in support of the circuit court’s decision. On appeal, petitioner suggests that the circuit
court should reconsider its precedent as it pertains to each of the following issues: petitioner’s
motivation to enter a guilty plea, trial counsel’s responsibility to pursue an appeal, the
voluntariness of petitioner’s confession, the prosecutor’s handling of evidence that petitioner
deems “helpful” but not exculpatory, and the effectiveness of petitioner’s counsel.
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.
Petitioner was indicted in 2008 on one count of first degree sexual assault in violation of
West Virginia Code § 61-8B-3, five counts of sexual abuse by a parent, guardian, custodian or
person in a position of trust in violation of West Virginia Code § 61-8D-5, and four counts of
first degree sexual abuse in violation of West Virginia Code § 61-8B-7. He pled guilty to one
count of sexual abuse by a parent, guardian, custodian or person in a position of trust and in 2009
was sentenced to a term of incarceration of ten to twenty years. Pursuant to the terms of his plea
agreement, the circuit court dismissed the remaining charges.
In December of 2011, petitioner filed a petition for writ of habeas corpus and was
appointed counsel. Following a status hearing on February 28, 2012, the circuit court directed
petitioner to file a “Losh List”1 and a supplemental petition for writ of habeas corpus.
Accordingly, petitioner filed the required supplemental documents. The circuit court conducted
1
The checklist of grounds typically used in habeas corpus proceedings, commonly known
as “the Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
Petitioner did not include his “Losh List” in the appendix.
1
an omnibus evidentiary hearing, following which it denied petitioner’s petition for writ of habeas
corpus by order entered on November 13, 2012. It is from this order that petitioner appeals.
On appeal, petitioner argues that this Court should reconsider its prior holdings and well-
established precedent in the five particular areas asserted above, but condenses his argument into
three sections. First, Petitioner argues that his confession was involuntary and coerced because
the investigating officer promised him that he would only serve “a couple of years” in prison and
because the State allowed him to be placed in custody with other inmates who assaulted and
battered him. Second, petitioner argues that the prosecuting attorney withheld evidence by not
disclosing that DNA evidence was not found on the victim, and he suggests that we extend
Brady v. Maryland, 373 U.S. 83 (1963), to apply to “helpful” evidence. Finally, petitioner argues
that he received ineffective assistance of counsel during the plea process and for counsel’s failure
to pursue a direct appeal.
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).
The record in this case is insufficient to address the merits of petitioner’s claims. Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure requires that petitioner’s brief
contain an argument demonstrating clearly the points of fact and law presented. That rule also
requires that such argument “contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not adequately supported
by specific references to the record on appeal.” Petitioner’s brief in this instance is wholly
unsupported by evidence in that it is completely devoid of appropriate and specific citations as
contemplated by our rule. 2
Furthermore, as this Court previously found, “[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 v. Kaufman, 227 W.Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39
(2011) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). It is a petitioner’s
burden to show the error in judgment of which he complains. See Syl. Pt. 2, WV Dept. of Health
& Human Res. Employees Fed. Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810
2
The brief is also non-compliant in that it does not contain the required table of contents
or table of authorities. Additionally, petitioner’s appendix does not include a certification page or
table of contents as required by Rule 7 of the West Virginia Rules of Appellate Procedure.
2
(2004). There is no legal argument set forth on petitioner’s assignments of error beyond the
suggestion that this Court should reconsider its well-established precedent. We agree with
respondent’s position that petitioner’s brief falls short of the requirements of Rule 10(c)(7) of
the West Virginia Rules of Appellate Procedure; his less-than-skeletal arguments do not preserve
his claims. The Court finds no error in the circuit court’s order denying habeas relief and sees no
reason under the facts of this case to overturn well-established precedent.3
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 21, 2013
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
3
We note that petitioner’s brief – a brief in which he asks us to deviate from or modify
long-standing principles of law – is only six pages long, and the only content of the sixth page is
counsel’s signature. There are no citations to meaningful evidence. In fact, counsel did not even
include a transcript of the omnibus hearing. This is particularly egregious because petitioner,
without evidentiary support, claims that a named state trooper lied to secure his confession and
that trial counsel told him to “forget the truth . . . .” Accusations such as these, if foundation
exists, deserve more than unsupported, conclusory treatment. The legal authority for petitioner’s
position is minimal, and he fails to convey any hint of a reason that he was not adequately
protected by existing jurisprudence. Petitioner asks generally that we consider “prior rulings”
without identifying any particular case.
3