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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Thomas Arnett, Petitioner Below, Petitioner

vs) No. 12-1441 (Harrison County 11-C-514)

Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Thomas Arnett, by counsel Daniel Cooper and Ja mison Cooper, appeals the

Circuit Court of Harrison Count y’s order entered on November 13, 2012, denying his petition for writ of habeas corpus. Respondent Warden Marv in Plumley, by counsel Ma rland Turner, filed a response in support of the circuit court’s decision. On appeal, peti tioner suggests th at the circuit court should reconsider its precedent as it pertai ns to each of the following issues: petitioner’s motivation to enter a guilty plea, trial counse l’s responsibility to pursue an appeal, the voluntariness of petitioner’s confession, the pros ecutor’s handling of evidence that petitioner deems “helpful” but not exculpatory, and the effectiveness of petitioner’s counsel.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Petitioner was indicted in 2008 on one count of first degree sexual assa ult in violation of West Virginia Code § 61-8B-3, five counts of sexual abuse by a parent, guardian, custodian or person in a position of trust in vi olation of West Virginia Code § 61-8D-5, and four counts of first degree sexual abuse in violation of West Virginia Code § 61-8B-7. He pled guilty to one count of sexual abuse by a parent, guardian, cust odian or person in a position of trust and in 2009

was sentenced to a term of incarcer ation of ten to twenty years. Pu rsuant to the terms of his plea agreement, the circuit court dismissed the remaining charges.

In December of 2011, petitione r filed a petition for writ of habeas corpus and was appointed counsel. Following a status hearing on February 28, 2012, the ci rcuit court directed petitioner to file a “Losh List” 1 and a supplemental petition for writ of habeas corpus. Accordingly, petitioner filed the required supp lemental documents. The circuit court conducted

1 The checklist of grounds typically used in habeas corpus proceedings, commonly known as “the Losh list,” originates from Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981).

Petitioner did not include his “Losh List” in the appendix. 

### FILED

October 21, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 an omnibus evidentiary hearing, following which it denied petitioner’s petition for writ of habeas corpus by order entered on November 13, 2012. It is from this order that petitioner appeals.

On appeal, petitioner argues that this Court should reconsider its prior holdings and wellestablished precedent in the five particular area s asserted above, but condenses his argument into three sections. First, Petitioner argues that hi s confession was involunt ary and coerced because the investigating officer promised him that he w ould only serve “a couple of years” in prison and because the State allowed him to be placed in custody with other inmates who assaulted and battered him. Second, petitioner ar gues that the prosecuting attorney withheld evidence by not disclosing that DNA evidence was not found on th e victim, and he sugge sts that we extend Brady v. Maryland , 373 U.S. 83 (1963), to apply to “helpf ul” evidence. Finally, petitioner argues

that he received ineffective assistance of counsel during the plea process and for counsel’s failure to pursue a direct appeal.

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

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

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

The record in this case is insufficient to a ddress the merits of petitioner’s claims. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure re quires that petitioner’s brief contain an argument demonstrating clearly the point s of fact and law presented. That rule also requires that such argument “contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Court may di sregard errors that are not adequately supported by specific references to the reco rd on appeal.” Petitioner’s brief in this instance is wholly unsupported by evidence in that it is completely devoid of appropriate a nd specific citations as contemplated by our rule. 2

Furthermore, as this Court previously found, “[a] skeletal ‘argum ent,’ 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 e rror in judgment of which he complains. See Syl. Pt. 2, WV Dept. of Health & Human Res. Employees Fed. Credit Union v. Tennant , 215 W.Va. 387, 599 S.E.2d 810

2 The brief is also non-compliant in that it does not contain th e required table of contents or table of authorities. Additionally, petitioner’s appendix does not include a certification page or table of contents as required by Rule 7 of the West Virginia Rules of Appellate Procedure.3 (2004). There is no legal argument set forth on petitioner’s assignments of error beyond the suggestion that this Court shou ld reconsider its well-establis hed precedent. We agree with respondent’s position that petitione r’s brief falls short of the requirements of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure; his less-than-skeletal ar guments do not preserve

his claims. The Court finds no error in the circuit court’s order denying habeas relief and sees no

reason under the facts of this case to overturn well-established precedent. 3

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 21, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II

3 We note that petitioner’s brief – a brief in which he asks us to deviate from or modify long-standing principles of law – is only six pages long, and th e only content of the sixth page is counsel’s signature. There are no citations to mean ingful evidence. In fact, counsel did not even include a transcript of the omnibus hearing. This is particularly egregi ous because petitioner, without evidentiary support, claims that a named state tr ooper lied to secure his confession and

that trial counsel told him to “f orget the truth . . . .” Accusati ons such as these, if foundation exists, deserve more than unsupported, conclusory treatment. The legal authority for petitioner’s position is minimal, and he fails to convey any hint of a reason that he was not adequately protected by existing jurisprudence. Petitioner as ks generally that we consider “prior rulings” without identifying a ny particular case.