STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Dennis Gale Hubbard, FILED Petitioner Below, Petitioner 

February 21, 2017 

vs) No. 16-0148 (Mercer County 12-C-320) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Ralph Terry, Warden,
 

Stevens Correctional Center,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Dennis Gale Hubbard, by counsel Paul R. Cassell, appeals the Circuit Court of 

Mercer County’s January 20, 2016, order denying his amended petition for writ of habeas 

corpus. Respondent Ralph Terry,1 Warden, by counsel Nic Dalton, filed a response. Petitioner 

filed a reply. On appeal, petitioner argues that the circuit court erred in denying his amended 

habeas petition on the grounds of ineffective assistance of counsel, a change in the law since the 

time of his conviction, the failure to preserve certain evidence, and cumulative error. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In July of 2005, petitioner shot and killed Ricardo Edward Lee after Mr. Lee entered 

petitioner’s residence. By his own admission, petitioner fired ten shots at Mr. Lee, emptying his 

firearm. During the February of 2006 term of court, petitioner was indicted on one count of firstdegree murder. Petitioner’s trial commenced in August of 2006. At trial, petitioner argued that he 

acted in self-defense and claimed that Mr. Lee was holding a knife at the time of the shooting. 

However, several witnesses testified that they did not see Mr. Lee holding a knife at the time of 

the shooting or see him move toward petitioner in a threatening manner. Ultimately, the jury 

convicted petitioner of one count of second-degree murder. Thereafter, petitioner filed a motion 

for a new trial, which the circuit court denied. By order entered in October of 2006, the circuit 

court sentenced petitioner to a term of incarceration of forty years. Petitioner thereafter appealed 

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Petitioner originally listed Marvin C. Plumley, Warden of Huttonsville Correctional 

Complex, as respondent in this matter. However, petitioner is no longer housed at Huttonsville 

Correctional Complex and is, instead, housed at Stevens Correctional Center. Pursuant to Rule 

41(c) of the West Virginia Revised Rules of Appellate Procedure, the name of the correct public 

officer has been substituted as respondent in this action. 

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his conviction to this Court, and we refused the same by order entered in September of 2008. 

Petitioner filed a petition for writ of habeas corpus in May of 2010. The circuit court 

appointed an attorney to represent petitioner and he later filed an amended petition. Ultimately, 

the circuit court denied that petition in May of 2010. Thereafter, petitioner filed a second petition 

that the circuit court denied in October of 2010. 

In June of 2012, petitioner filed a third petition for writ of habeas corpus in the circuit 

court. After the circuit court appointed counsel in February of 2013, the State conceded that 

petitioner received ineffective assistance of counsel in his prior habeas proceeding. As such, the 

circuit court permitted petitioner to file an amended petition. In November of 2014, the circuit 

court held an omnibus evidentiary hearing. The circuit court then permitted evidentiary 

depositions of fact and expert witnesses. In June of 2015, the parties presented their final 

arguments to the circuit court. By order entered on January 20, 2016, the circuit court denied 

petitioner’s amended petition. It is from that order that petitioner appeals. 

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

following standard: 

“In reviewing challenges to the findings and conclusions of the circuit 

court in a habeas corpus action, we apply a three-prong standard of review. We 

review the final order and the ultimate disposition under an abuse of discretion 

standard; the underlying factual findings under a clearly erroneous standard; and 

questions of law are subject to a de novo review.” Syllabus point 1, Mathena v. 

Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). 

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

On appeal to this Court, petitioner argues that he was entitled to habeas relief due to trial 

counsel’s ineffective representation, a favorable change in the law with retroactive effect, and 

cumulative error.2 The Court, however, does not agree. Upon our review and consideration of the 

circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error 

or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s 

decision to deny petitioner post-conviction habeas corpus relief based on these alleged errors, 

which were also argued below. Indeed, the circuit court’s order includes well-reasoned findings 

and conclusions as to the assignments of error raised on appeal. Given our conclusion that the 

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Petitioner also alleges error regarding a recording of a radio broadcast that he asserts was 

played to the jury during trial and subsequently lost. However, the Court finds that neither 

petitioner’s amended petition for writ of habeas corpus nor his memorandum in support of the 

amended petition addressed this alleged error. “‘Our general rule is that nonjurisdictional 

questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme 

Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. 

W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly, 

the Court declines to address this assignment of error on appeal. 

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circuit court’s order and the record before us reflect no clear error or abuse of discretion, we 

hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to 

petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit 

court’s January 20, 2016, “Order” to this memorandum decision. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: February 21, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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