STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Raymond Elswick, FILED 

Petitioner Below, Petitioner October 20, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-1110 (Roane County 11-C-08) OF WEST VIRGINIA 

Marvin Plumley, Warden, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Raymond Elswick, by counsel Herbert Hively II, appeals the Circuit Court of 

Roane County’s May 20, 2013, order that denied his petition for writ of habeas corpus. 

Respondent Marvin Plumley, Warden,1 by counsel Christopher Dodrill, filed a response. On 

appeal, petitioner alleges that the circuit court erred in denying his petition for writ of habeas 

corpus on the grounds of ineffective assistance of 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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In September of 2005, Petitioner was indicted by the Roane County Grand Jury for one 

count of murder, one count of felony murder, one count of kidnapping, and one count of 

conspiracy. Following a jury trial, petitioner was found guilty of one count of voluntary 

manslaughter and one count of conspiracy. Thereafter, the circuit court sentenced petitioner to a 

recidivist life sentence pursuant to West Virginia Code § 61-11-18, due to two previous felony 

convictions. 

In May of 2009, Petitioner filed a direct appeal with this Court arguing multiple 

assignments of trial error. This Court affirmed the circuit court’s sentencing order. See State v. 

Elswick, 225 W.Va. 285, 693 S.E.2d 38 (2010). On February 18, 2011, petitioner, pro se, filed a 

petition for writ of habeas corpus asserting the following grounds for relief: (1) prejudicial 

prosecutorial comments; (2) ineffective assistance of counsel; (3) improper communications 

between prosecutor and the jury; (4) double jeopardy; (5) ongoing discovery violations; (6) 

denial of right to speedy trial; (7) destruction of evidence; (8) erroneous instructions to the jury; 

1

Pursuant to Rule 41(c) of the Rules of Appellate Procedure, we have substituted the 

respondent party’s name with Warden Marvin Plumley because petitioner is currently 

incarcerated at Huttonsville Correctional Center. 

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and (9) constitutional errors in evidentiary rulings.2 Prior to the omnibus evidentiary hearings on 

December 14, 2012, and January 24, 2013, the parties agreed that all issues, with the exception 

of petitioner’s claims of ineffective assistance of counsel, were decided in Elswick and were res 

judicata. The circuit court denied petitioner habeas relief by order entered on May 20, 2013. It is 

from this order that petitioner now appeals. 

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). 

On appeal, petitioner argues that the circuit court committed reversible error in denying 

his request for habeas relief because he received ineffective assistance of trial counsel. Petitioner 

argues that his testimony at the evidentiary hearings proves that trial counsel failed to: (1) 

adequately discuss the consequences of going to trial and the effect of the West Virginia habitual 

offender statute;3 (2) obtain the mandatory attendance of a co-defendant; (3) obtain exculpatory 

evidence; and (4) file an appeal with the Supreme Court of the United States.4 

West Virginia Code § 53-4A-7(a) states, in relevant part, that 

[i]f the petition [for writ of habeas corpus], affidavits, exhibits, records and other 

2

Petitioner was subsequently appointed counsel and filed a checklist pursuant to Losh v. 

McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). 

3

See W. Va. Code § 61-11-18 and 61-11-29. 

4

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. 

The Court may disregard errors that are not adequately supported by specific references to the 

record on appeal. In this case, petitioner’s brief is wholly unsupported by evidence in that it is 

completely devoid of any argument or discussion of the issues raised therein as contemplated by 

our rule. Moreover, 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. Emps. Fed. Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004). We 

caution petitioner that, given that there is no legal argument set forth in his brief, it falls short of 

the requirements of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure. 

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documentary evidence attached thereto . . . 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. 

This Court has carefully reviewed the appendix record, including the transcripts of the omnibus 

evidentiary hearings conducted on December 14, 2012, and January 24, 2013. It is abundantly 

clear that petitioner failed to adequately demonstrate that his counsel fell below the objective 

standard of unreasonableness required by State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).5 

Accordingly, this Court concludes that the circuit court did not abuse its discretion in denying the 

petition for writ of habeas corpus. Having reviewed the circuit court’s “Judgment Order” entered 

on May 20, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings and 

conclusions. 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. 

ISSUED: October 20, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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The Court held in syllabus point five of Miller that 

[i]n 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. 

State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995). 

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