1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Robert Watring,

Petitioner Below, Petitioner

vs.) No. 18-0200 (Preston County 17-C-81) 

John Anderson, Superintendent,

Salem Correctional Center and Jail,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Robert Watring, by counsel Jeremy B. Cooper, appeals the Circuit Court of 

Preston County’s February 28, 2018, order denying his amended petition for a writ of habeas 

corpus. Respondent John Anderson, Superintendent, by counsel Caleb A. Ellis, filed a response.1

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

habeas petition, asserting that the prosecutor suppressed helpful evidence and that he had

ineffective assistance of counsel.

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

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

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

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

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

Rules of Appellate Procedure.

In March of 2015, petitioner was indicted on two counts of wanton endangerment involving 

a firearm, one count of malicious assault, one count of child abuse creating risk of injury, and one 

count of driving while license suspended or revoked for driving under the influence (“DUI”).2 At 

petitioner’s trial on these charges, the victim, petitioner’s ex-wife, testified that petitioner arrived 

at her home intoxicated after she ignored his repeated attempts to reach her by phone. Upon his 

arrival petitioner began continually ringing the doorbell and beating on the door. Knowing that 

 

1Petitioner listed Spencer Hill, former Acting Warden of Anthony Correctional Center, as 

respondent in this matter; however, petitioner is currently housed at Salem Correctional Center 

and Jail, at which John Anderson is Superintendent. The appropriate party has been substituted per 

Rule 41(c) of the Rules of Appellate Procedure. Additionally, effective July 1, 2018, the positions 

formerly designated as “wardens” are now designated “superintendents.” See W. Va. Code § 15A5-3.

2Prior to trial, the charges of child abuse creating risk of injury and driving while license 

suspended or revoked for DUI were dismissed by agreed order. 

FILED

March 15, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

petitioner would not stop until let inside the home, the victim opened her door. After several 

minutes inside the home, petitioner pointed a .22 caliber youth rifle at the victim’s head. Petitioner 

reportedly told the victim he was “going to put her to sleep” and then pointed the rifle at her chest. 

Petitioner also choked the victim several times over an approximate five-minute period. The victim 

testified that she was unable to breathe while petitioner choked her, but when petitioner eased his 

grip, she yelled for help. While choking the victim, petitioner told her she “better pray that [her

son] has a good life” without her. The victim testified that she feared for her life.

During the victim’s testimony, she reported that the investigating officer took pictures of 

her neck, which had “just red marks,” and eyeglasses, which were crooked from the altercation. 

Petitioner’s counsel requested a bench conference outside the presence of the jury, and she 

informed the circuit court that she was unaware any pictures had been taken, despite discovery 

requests. The prosecutor stated that he, too, did not have the pictures. The investigating officer 

reported to the court that “[e]vidently, [they] didn’t get transferred over.” The prosecutor stated 

that he had no intention of introducing the photographs, and the trial resumed.

Carl W. Morgan Jr. testified that he received a call from his mother-in-law, who lived in 

the victim’s apartment complex. Mr. Morgan’s mother-in-law informed him that a woman was 

screaming for help and being beaten. Mr. Morgan, who lived down the street from the victim, went 

to the victim’s home and began “pound[ing] on the door.” The victim’s son opened the door, and 

Mr. Morgan observed petitioner in the victim’s apartment “smacking [the victim] back in” the 

bathroom, which she was attempting to exit. Petitioner then pointed the rifle at Mr. Morgan before 

exiting the home and driving away. 

At the close of evidence, the jury found petitioner guilty of two counts of wanton 

endangerment involving a firearm and one count of malicious assault. The circuit court sentenced 

petitioner to a determinate term of five years of incarceration for each wanton endangerment 

involving a firearm conviction and an indeterminate term of two to ten years for his malicious 

assault conviction. Petitioner’s sentences were further ordered to run consecutively.

Petitioner filed a motion for a new trial asserting, among other things, that the State’s 

failure to disclose the photographs amounted to a violation of his right to due process under Brady 

v. Maryland, 373 U.S. 83 (1963); that the failure to disclose amounted to a violation of Rule 16 of 

the West Virginia Rules of Criminal Procedure; and that the eventual, post-trial disclosure 

constituted newly discovered evidence entitling him to a new trial.3 The circuit court denied 

petitioner’s motion for a new trial, and on October 11, 2016, we affirmed the circuit court’s denial 

of that motion. State v. Watring, No. 15-0932, 2016 WL 5900709 (W. Va. Oct. 11, 

2016)(memorandum decision).

Following this Court’s decision, petitioner filed a pro se petition for a writ of habeas corpus 

on July 14, 2017. The circuit court appointed counsel, and through counsel, petitioner filed an 

amended petition asserting as grounds for relief coerced confession, suppression of helpful 

evidence by the prosecutor, ineffective assistance of counsel, constitutional errors in evidentiary 

rulings, improper jury instructions, prejudicial statements by the prosecution, and sufficiency of 

 

3Petitioner received the photographs four days after his sentencing.
3

the evidence. The parties appeared for an omnibus evidentiary hearing on January 22, 2018, and 

the circuit court denied petitioner habeas relief by order entered on February 28, 2018. It is from 

this 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.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 

417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). 

On appeal, petitioner challenges only the circuit court’s rulings on his suppression of 

favorable evidence by the prosecutor and ineffective assistance of counsel claims. First, petitioner 

argues that the State’s failure to produce the photographs of the victim’s injuries constitutes a due 

process violation. See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution 

of evidence favorable to an accused upon request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of the good faith or bad faith of the 

prosecution.); syl. pt. 4, State v. Hatfield, 169 W. Va. 191, 289 S.E.2d 402 (1982) (“A prosecution 

that withholds evidence which if made available would tend to exculpate an accused by creating a 

reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the 

West Virginia Constitution.”).4 Petitioner argues that the pictures are exculpatory in the context of 

a lesser-included offense instruction. Specifically, petitioner’s “trial strategy [was] to profess 

complete innocence to the accusations[,]” and his trial counsel testified at his omnibus evidentiary 

hearing that petitioner was not amenable to requesting an instruction on lesser-included offenses 

of malicious assault. But trial counsel also testified that once she saw the photographs, she did not 

believe they supported a malicious assault conviction and, instead, thought “they might go to a 

lesser included domestic battery.” Trial counsel further stated that had she seen the pictures in 

advance of trial, “it would’ve given [her and petitioner] an opportunity to revisit the question of 

the lesser included.” Petitioner also argues that if the photographs had been published to the jury, 

“[n]o reasonable juror, even in the light most favorable to the prosecution, could have found that 

 

4Additionally, 

[a] police investigator’s knowledge of evidence in a criminal case is 

imputed to the prosecutor. Therefore, a prosecutor’s disclosure duty under Brady v. 

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v. Hatfield, 

169 W.Va. 191, 286 S.E.2d 402 (1982) includes disclosure of evidence that is 

known only to a police investigator and not to the prosecutor.

Syl. Pt. 1, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007).
4

a man of the [p]etitioner’s size and strength intended to kill the alleged victim based upon such 

visually marginal injuries.”5

Petitioner, however, also acknowledges that this Court previously found that the 

photographs were not favorable to him as exculpatory or impeachment evidence and that he had, 

therefore, not established a Brady violation. Watring, 2016 WL 5900709 at *3. In denying 

petitioner relief on this ground, the habeas court found that reconsideration was prohibited under 

the law of the case doctrine. Petitioner urges this Court to decline to apply that doctrine because 

testimony elicited from the prosecutor and trial counsel constitutes “material changes in the facts 

since the prior appeal.” 

We have previously held that 

[t]he law of the case doctrine “generally prohibits reconsideration of issues 

which have been decided in a prior appeal in the same case, provided that there has 

been no material changes in the facts since the prior appeal, such issues may not 

be relitigated in the trial court or re-examined in a second appeal.” . . . “[T]he 

doctrine is a salutary rule of policy and practice, grounded in important 

considerations related to stability in the decision making process, predictability of 

results, proper working relationships between trial and appellate courts, and judicial 

economy.”

State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W. Va. 802, 808, 591 S.E.2d 728, 734 (2003) 

(citations omitted) (emphasis added). In other words, “[t]he general rule is that when a question 

has been definitively determined by this Court its decision is conclusive on parties, privies and

courts, including this Court, upon a second appeal and it is regarded as the law of the case.” Id.

(citing syl. pt. 1, Mullins v. Green, 145 W. Va. 469, 115 S.E.2d 320 (1960)).

Additionally, in State v. Youngblood, we held that

[t]here are three components of a constitutional due process violation under 

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State 

v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must 

be favorable to the defendant as exculpatory or impeachment evidence; (2) the 

evidence must have been suppressed by the State, either willfully or inadvertently; 

and (3) the evidence must have been material, i.e., it must have prejudiced the 

defense at trial. 

221 W. Va. 20, 22, 650 S.E.2d 119, 121, syl. pt. 2 (2007). We have defined “exculpatory evidence” 

as “that which would tend to show freedom from fault, guilt or blame.” Buffey v. Ballard, 236 W.

 

5An individual is guilty of malicious assault when the person “maliciously shoots, stabs, 

cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim, 

disfigure, disable or kill.” W. Va. Code § 61-2-9(a). The prosecutor indicated at petitioner’s 

omnibus evidentiary hearing that, to the best of his recollection, he argued to the jury that petitioner 

possessed the intent to kill rather than to maim, disfigure, or disable.
5

Va. 509, 524, 782 S.E.2d 204, 219 (2015) (citation omitted); see also Hatfield, 169 W. Va. at 192, 

286 S.E.2d at 404, syl. pt. 4 (“A prosecution that withholds evidence which if made available 

would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due 

process of law under Article III, Section 14 of the West Virginia Constitution.”); United States v. 

Agurs, 427 U.S. 97, 112 (1976) (defining exculpatory in terms of whether “the omitted evidence 

creates a reasonable doubt that did not otherwise exist”). 

In petitioner’s prior appeal, we found “no indication in the record that the photographs, 

which undisputedly depict injuries to the victim’s body and property, are exculpatory or 

impeachment material.” Watring, 2016 WL 5900709 at *3. We found, instead, that “the 

photographs appear to be wholly consistent with the testimony of [the State’s] witnesses at trial 

regarding the victim’s injuries, which were said to be redness around the throat area and broken 

glasses.” Id. Trial counsel’s testimony regarding an opportunity to “revisit the question of [whether 

to seek an instruction on a] lesser included [offense]” does not change the character of the 

photographs. Rather, they remain corroborative of trial witnesses’ testimony, including the 

victim’s, regarding the marks left by petitioner’s strangulation of the victim. In other words, the 

photographs remain inculpatory despite trial counsel’s testimony. Therefore, we find no error in 

the circuit court’s finding that this claim is barred from reconsideration.6

In petitioner’s final assignment of error, he asserts that trial counsel rendered ineffective 

assistance. Petitioner conclusorily states that trial counsel mishandled “the mid-trial photograph 

situation,” failed to move for a judgment of acquittal, and “failed to object to a line of questioning 

by the State that had been excluded during pretrial litigation,”7all of which “is sufficient for a 

finding that each prong of [the] Strickland test was fulfilled.”

In West Virginia, claims of ineffective assistance of counsel

are to be governed by the two-pronged test established in Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance 

was deficient under an objective standard of reasonableness; and (2) there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceedings would have been different. 

 

6Additionally, West Virginia Code § 53-4A-1(a) prohibits the pursuit of habeas relief on 

grounds that have been “previously and finally adjudicated . . . in the proceedings which resulted 

in the conviction and sentence, . . . or in any other proceeding or proceedings which the petitioner 

has instituted to secure relief from such conviction or sentence.” As used in that statute, 

“previously and finally adjudicated” means “there was a decision on the merits thereof after a full 

and fair hearing thereon” in, among others, a proceeding “instituted by the petitioner to secure 

relief from his conviction or sentence.” Id. § 53-4A-1(b). Because this claim was previously and 

finally adjudicated in Watring, we also find that it was properly disposed of under West Virginia 

Code § 53-4A-1.

7Petitioner fails to specifically identify this questioning; instead, he cites to the appendix 

record. The citation is to trial counsel’s testimony at petitioner’s omnibus evidentiary hearing 

concerning “questions by the State in which [petitioner’s] history of having a protective order may 

have been made apparent to the jury.” 
6

Syl. Pt. 5, in part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Further, an ineffective 

assistance of counsel claim may be disposed of for failure to meet either prong of the test. Syl. Pt. 

5, in part, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995); see also State 

ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 17, 528 S.E.2d 207, 213 (1999)

(citation omitted) (“Failure to meet the burden of proof imposed by either part of the 

Strickland/Miller test is fatal to a habeas petitioner’s claim.”). 

Here, petitioner simply concludes that “[t]he evidence of these three omissions is sufficient 

for a finding that each prong of [the] Strickland test was fulfilled,” without providing any analysis 

in support of that conclusion. Specifically, he fails to demonstrate that the outcome of his trial 

would have been different had trial counsel requested a recess to review the photos, particularly 

given this Court’s finding that the photos were not exculpatory; moved for judgment of acquittal, 

given that petitioner filed post-trial motions; or objected to certain testimony, again given 

petitioner’s post-trial motions addressing the allegedly improperly introduced testimony.8

Accordingly, we find no error in the circuit court’s denial of habeas relief on this ground. See also 

State ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 

(1995) (citation omitted) (“[A] skeletal ‘argument’, really nothing more than an assertion, does not 

preserve a claim . . . .”).

For the foregoing reasons, we affirm the circuit court’s February 28, 2018, order denying 

petitioner’s amended petition for a writ of habeas corpus.

Affirmed.

ISSUED: March 15, 2019 

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison

 

8At a hearing on petitioner’s post-trial motions, trial counsel conceded that there was no 

testimony regarding a protective order introduced at trial. The habeas court, “[u]pon further review 

of the [p]etitioner’s trial testimony . . . once again f[ound] and conclude[d] that there was no 

mention of a protective order during the State’s cross-examination of [p]etitioner.”