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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. 

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I. Facts 

A. The Underlying Trial 

On May 11, 1994, a Fayette County grand jury returned indictment No. 94-F31 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. 

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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. 

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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 primarycomplaint 

regarding the petitioner was that “he was always wanting money from her.” 

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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...) 

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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. 

10A 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. 

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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 

11The 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. 

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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 bylaw enforcement and the office of the State 

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

12On February 3, 1994, Bank One received a copy of this revocation. 

13At 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. 

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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. 

14Sergeant 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. 

15In 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. 

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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 

16Firefighter 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. 

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

Begley, and contacted the State Fire Marshal.17 

Lieutenant Begleytestified 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 

17Chief Cordle contacted the State Fire Marshal because someone had been trapped 

in the burning trailer. 

18Begleytestified regarding his fire investigation training, which included eightyhours 

of course work at the National Fire Academy in Maryland. 

19As discussed infra, the defense maintained the petitioner had been using the towel 

(continued...) 

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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 testimonyconcerning fire cause and origin based on their 

19(...continued) 

and the weather-stripping to keep noise and light from disturbing the victim. 

20Assistant State Fire Marshal Roger York asked Mr. Cruikshank to investigate the 

fire and give his opinion on cause and origin. 

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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 

21Mr. 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. 

22On cross-examination, Mr. York agreed that the use of an anamometer requires a 

(continued...) 

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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 approximately200 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. 

23It was also determined that the furnace thermostat was working properly and was set 

at seventy-five degrees. 

24When 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. 

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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 

25Mr. 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. 

26Mr. 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. 

27Explaining 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.” 

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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. 

28Mr. 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 batterypowered; 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. 

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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 testimonyof 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. 

29Two 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. 

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

the National Fire Academyin 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 

30By 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. 

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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. 

31In 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. 

32Expressing 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.” 

33When 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.” 

34Mr. Kovarik testified that he could not examine the breaker because it was no longer 

in the trailer at the time of his investigation. 

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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 

35Part 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. 

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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 

36The 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. 

37See W.Va. Code, §§ 53-4A-1 to -11 (2008) (West Virginia Post-Conviction Habeas 

Corpus Act). 

38The 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...) 

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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). 

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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. 

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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). 

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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 threeprong 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. 

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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 newlydiscovered 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 

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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 

40See 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). 

41See also W.Va. C.S.R. § 87-1-2 (2014) (adopting NFPA 1 Fire Code (2012) which 

(continued...) 

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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) 

expresslystates that its purpose is “to prescribe minimum requirements necessaryto 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). 

42We 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 

1054 (8th 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...) 

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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. 

43The 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. 

44See 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. 

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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 

45See 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.”). 

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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 

46Frazier, 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). 

47Assistant 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. 

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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 

48Although the State’s investigators did not seize the linoleum, they did photograph 

it as it was found. 

49While 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...) 

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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. 

50The 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. 

51Mr. 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...) 

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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 byeliminating 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. 

52Mr. Goodson also criticizes Mr. Franck’s testimony regarding the smoke detector, 

(continued...) 

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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 crossexamination he was not saying that it was a carbon monoxide detector. 

53Under 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. 

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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 

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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 bythe petitioner’s 

54Following 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. 

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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 

55In 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. 

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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. 

56At 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 felonymurder conviction based on newlydiscovered 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. 

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2. Due Process Violation and 

Inadmissibility of Expert Testimony 

In further support of his newlydiscovered 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 

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

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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 

57Rule 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. 

58In 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 applythe Daubert analysis retroactivelyto scientific 

subjects previously accepted as valid for expert testimony.”). 

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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. 

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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). 

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

the petitioner’s eleven-daymurder trial. Consequently, he was intimatelyfamiliar 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 PostConviction 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.” 

59The 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. 

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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 sufficientlyaddressed 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. 

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