The opinion
FILED
August 30, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Thomas White Jr.,
Petitioner Below, Petitioner
vs.) No. 21-0403 (Cabell County 19-C-410)
Donald Ames, Superintendent, Mt. Olive
Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Thomas White Jr., by counsel Juston H. Moore, appeals the April 20, 2021, order of the
Circuit Court of Cabell County denying his second petition for a writ of habeas corpus.
Respondent Donald Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick
Morrisey and Mary Beth Niday, filed a response to the brief filed by petitioner’s counsel and a
response to the brief filed by petitioner as a self-represented litigant, pursuant to Rule 10(c)(10)(b)
of the West Virginia Rules of Appellate Procedure. 1 Petitioner, as a self-represented litigant, filed
1
On October 21, 2021, petitioner’s counsel filed a motion requesting leave for petitioner to
file a supplemental brief as a self-represented litigant pursuant to Rule 10(c)(10)(b) of the West
Virginia Rules of Appellate Procedure, which provides that,
[i]n extraordinary circumstances, if counsel is ethically compelled to disassociate
from the contentions presented in the brief, counsel must preface the brief with a
statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
inject disclaimers or argue against the client’s interests. If counsel is ethically
compelled to disassociate from any assignments of error that the client wishes to
raise on appeal, counsel must file a motion requesting leave for the client to file a
pro se supplemental brief raising those assignments of error that the client wishes to
raise but that counsel does not have a good faith belief are reasonable and
warranted.
This Court, by order entered on October 21, 2021, granted the motion and directed (1) petitioner to
(continued . . .)
1
a reply.
The 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.
On January 16, 2013, petitioner was indicted in the Circuit Court of Cabell County on two
counts of first-degree murder for his part in a robbery that resulted in the deaths of two people on
November 6, 2012. At trial, petitioner’s accomplice testified that he and petitioner went to a “drug
house” in Huntington, West Virginia, to commit a robbery. The evidence also included numerous
other witness accounts, as well as significant forensic evidence, that explained that petitioner and
his accomplice’s plan to rob the “drug house.” Thereafter, the jury convicted petitioner of two
counts of first-degree felony murder. The circuit court sentenced petitioner to two consecutive life
terms of incarceration, with the possibility of parole.
Petitioner appealed his convictions in State v. White (“White I”), No. 14-0918, 2015 WL
7628721 (W. Va. Nov. 20, 2015) (memorandum decision), and challenged the State’s admission
of certain text messages at his trial, pursuant to Rule 404(b) of the West Virginia Rules of
Evidence. Id. at *3-5. This Court rejected petitioner’s challenge, finding that (1) the text messages
were sent from a cell phone belonging to petitioner; (2) the text messages were admissible to prove
petitioner’s intent or motive; (3) the text messages were properly admitted as they were more
probative than prejudicial; (4) even if the circuit court erred in admitting the text messages, “the
error was harmless given that the State provided the jury with ample and overwhelming evidence
of petitioner’s guilt above and beyond the call logs and text messages”; and (5) while the circuit
court erred in failing to give an initial limiting instruction at the time the text messages were
admitted, the error was harmless due, in part, to “[the] overwhelming evidence of petitioner’s
guilt.” 2 Id. Accordingly, this Court affirmed petitioner’s convictions. Id. at *6.
On May 5, 2016, petitioner filed a petition for a writ of habeas corpus in the circuit court.
The circuit court appointed initial habeas counsel who filed an amended petition, a supporting
memorandum of law, and exhibits on September 30, 2016. In the memorandum of law, petitioner
raised the following grounds for relief: ineffective assistance of trial counsel, ineffective assistance
file a supplemental brief on or before November 5, 2021; (2) respondent to file a response to the
supplemental brief on or before November 19, 2021; and, if necessary, (3) petitioner to file a reply
to the response within twenty days of its receipt.
2
In State v. White (“White I”), No. 14-0918, 2015 WL 7628721 (W. Va. Nov. 20, 2015)
(memorandum decision), this Court noted that the circuit court gave the required Rule 404(b)
limiting instruction as a part of its instructions to the jury. Id. at *5.
2
of criminal appellate counsel, 3 disproportionate sentences when compared to the sentences of
petitioner’s accomplice; illegal search of petitioner’s cell phone, and cumulative error. Petitioner
attached two exhibits to his memorandum of law that are relevant here. Petitioner signed the first
exhibit entitled, “Additional Grounds To Be Asserted By Petitioner, Which Counsel Could Not
Adequately Include In Memorandum.” In this exhibit, petitioner alleged that (1) there was
prejudicial pretrial publicity; (2) petitioner’s accomplice’s confession was coerced; (3) evidence
helpful to petitioner was suppressed by the State; (4) the perjurious testimony of petitioner’s
accomplice was used by the State; (5) there were errors in petitioner’s presentence investigation
report; (6) petitioner’s trial was unfair due to the coerced statements of his accomplice; (7)
petitioner’s trial was unfair due to the lack of certain jury instructions; (8) petitioner’s trial was
unfair due to prejudicial statements made by the State during closing arguments; (9) the evidence
was insufficient to convict petitioner; (10) there were improper communications between the State
and witnesses and/or the jury; and (11) petitioner was not given proper credit for time served. As a
second exhibit, petitioner submitted a Losh list, also signed by him, indicating that he waived any
grounds not raised. 4
The circuit court, by order entered on November 15, 2016, allowed petitioner’s initial
habeas counsel to withdraw and appointed Steven M. Wright as substitute habeas counsel. Mr.
Wright considered petitioner’s lead trial counsel, Timothy P. Rosinsky, to be a mentor. Petitioner
felt uncomfortable with Mr. Wright’s representation of him due to his friendship with Mr.
Rosinsky. Accordingly, Mr. Wright filed motions to withdraw as substitute habeas counsel on
October 27, 2017, and March 5, 2018, which the circuit court denied.
At the beginning of petitioner’s August 2, 2018, omnibus habeas corpus hearing, Mr.
Wright renewed his request to withdraw as substitute habeas counsel because of petitioner’s
concern about “my ability to objectively and zealously represent his interests.” The circuit court
denied Mr. Wright’s request to withdraw, finding that,
[a]s I think I have ruled in the past, I know Mr. Wright, I know Mr. Rosinsky, this is
a small bar in the sense of the number of attorneys [in Cabell County], and I think I
may have said this to you before, I have all the confidence Mr. Wright will
zealously cross-examine Mr. Rosinsky, and I see Mr. [Kerry] Nessel [petitioner’s
trial co-counsel] is here also. Their friendship, and it’s probably a professional
3
Petitioner’s trial counsel also served as his criminal appellate counsel. See State v. White
(“White I”), No. 14-0918, 2015 WL 7628721, at *1 (W. Va. Nov. 20, 2015) (memorandum
decision).
4
The checklist of grounds typically used in habeas corpus proceedings, usually referred to
as the Losh list, originates from our decision in Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606
(1981), where we set forth the most common grounds for habeas relief. See id. at 768-70, 277
S.E.2d at 611-12.
3
friendship more than a personal friendship, will not interfere with his duties as a
lawyer.
The circuit court addressed two other preliminary matters. First, regarding petitioner’s
allegation that he could not locate a warrant authorizing the search of his cell phone, the circuit
court stated that it had found a May 7, 2013, agreed order entered in petitioner’s criminal case,
pursuant to which the cell phone was searched. Second, the circuit court informed petitioner that,
following Mr. Wright’s presentation on his behalf, it would “take up” any issues “that you have
raised pro se.” Petitioner responded, “All right.”
Thereafter, Mr. Wright presented the testimony of both of petitioner’s trial counsels and of
petitioner himself. During his direct examination of Mr. Rosinsky, Mr. Wright questioned him
about the disparity between petitioner’s sentences and his accomplice’s sentences given their
perceived roles in the crimes. 5 In testifying that the circuit court did not accept his argument that
petitioner deserved concurrent sentences, Mr. Rosinsky expressed anger about what he believed to
be an excessive aggregate sentence. Thereafter, Mr. Rosinsky apologized to the circuit court,
stating, “Sorry about that rage, Your Honor.”
Mr. Wright also questioned Mr. Rosinsky about the May 7, 2013, agreed order entered in
petitioner’s criminal case. Mr. Rosinsky testified that allowing a “dump” of petitioner’s cell phone
represented a strategic decision “because it would show a lack of connection [between petitioner
and the accomplice, and between petitioner and the victims,] and then we could kind of use the
state’s muscle in dumping this stuff and examining it.” However, Mr. Rosinsky admitted that the
State wanted to use the text messages “to show a pattern of [petitioner] being involved in drug
activity which takes him into this drug house in Huntington where these two people from Detroit[,
Michigan,] were killed.”
During petitioner’s testimony, he denied authorizing Mr. Rosinsky to consent to a “dump”
of his cell phone but admitted that he discussed both the cell phone and its contents with Mr.
Rosinsky. Petitioner testified that, while he believed the text messages were “bad,” he “didn’t
think they would be incriminating [in] this case.” Pursuant to the circuit court’s statement that it
would consider issues that Mr. Wright did not raise, Mr. Wright inquired of petitioner if there was
“anything that you can think of that I haven’t asked you that you feel is important for the [c]ourt to
hear and to be on the record.” Petitioner responded, “Not anything I can think of at this time.”
Following the August 2, 2018, omnibus habeas corpus hearing, the circuit court, by order
entered on September 28, 2018, denied petitioner’s habeas petition. In finding that petitioner did
not receive ineffective assistance of trial counsel, the circuit court rejected petitioner’s modified
5
While petitioner was sentenced to two consecutive life sentences of incarceration for
first-degree murder, his accomplice was sentenced to consecutive sentences of forty years of
incarceration for second-degree murder and ten years of incarceration for first-degree robbery.
White v. Ames (“White II”), No. 18-0892, 2020 WL 533116, at *2 (W. Va. Feb. 3, 2020)
(memorandum decision).
4
argument that Mr. Rosinsky should not have consented to the May 7, 2013, agreed order allowing
a “dump” of petitioner’s cell phone. The circuit court noted the discussion petitioner had with Mr.
Rosinsky about the cell phone and its contents and petitioner’s testimony that he did not believe
that any incriminating evidence would be found on the phone.
Petitioner appealed the circuit court’s denial of habeas relief in White v. Ames (“White II”),
No. 18-0892, 2020 WL 533116 (W. Va. Feb. 3, 2020) (memorandum decision). Petitioner in White
II did not challenge the circuit court’s denials of Mr. Wright’s requests to withdraw as substitute
habeas counsel or its ruling that there was no illegal search of petitioner’s cell phone due to the
May 7, 2013, agreed order. Rather, petitioner raised the following assignments of error: (1) trial
counsel provided ineffective assistance by failing to retain an expert to conduct an independent
analysis of the bullet removed from one of the victim’s legs; (2) trial counsel provided ineffective
assistance by failing to object or move to strike the speculative theories put forth by a police
detective during petitioner’s trial; (3) appellate counsel provided ineffective assistance by failing
to fully argue issues regarding Rule 404(b) evidence, including the admission of photographs of
petitioner’s tattoos; (4) petitioner’s sentences are disproportionate when compared to his
accomplice’s sentences; and (5) the circuit court erred in denying petitioner habeas relief due to the
cumulative effect of multiple errors at trial. Id. at *3-10. This Court in White II rejected petitioner’s
assignments of error and affirmed the denial of habeas relief. Id.
Prior to this Court’s decision in White II, petitioner filed the instant petition for a writ of
habeas corpus petition on September 12, 2019, alleging that Mr. Wright provided ineffective
assistance as substitute habeas counsel. Current habeas counsel was appointed, 6 who filed an
amended petition on September 2, 2020. Thereafter, the circuit court, by order entered on
December 1, 2020, granted petitioner’s motion to file a supplemental memorandum of law as a
self-represented litigant. Petitioner filed his supplemental memorandum of law on December 14,
2020. Respondent filed a response on January 4, 2021.
On March 2, 2021, the circuit court held an omnibus evidentiary hearing in petitioner’s
instant habeas proceeding, at which Mr. Wright and petitioner testified. During Mr. Wright’s
testimony, he stated that lawyers in Cabell County frequently “go against” each other and that his
friendship with Mr. Rosinsky did not affect his ability to adequately represent petitioner in the
White II habeas proceeding. Mr. Wright further testified that he did not feel uncomfortable
questioning Mr. Rosinsky about his representation of petitioner as his trial and criminal appellate
counsel. Mr. Wright stated that, despite the familiarity Cabell County lawyers have with each
other, the circuit court properly denied his requests to withdraw as substitute habeas counsel
because the court knew that he could represent petitioner’s interests. Mr. Wright explained that he
made the requests to withdraw to “safeguard or pursue” his client’s (petitioner’s) wishes on the
matter.
During petitioner’s testimony, he was not only questioned by the parties’ counsels, but also
by the circuit court. Given that the May 7, 2013, agreed order entered in petitioner’s criminal case
6
Current habeas counsel represents petitioner in this appeal.
5
allowed a “dump” of his cell phone, the circuit court sought clarification, asking petitioner if he
was alleging that Mr. Rosinsky should not have consented to that order. Petitioner answered,
“Correct.” The circuit court further noted that, at the end of petitioner’s direct examination at the
White II omnibus hearing, he was asked if there were any other issues he wanted to raise and he
indicated that there were none. The circuit court inquired of petitioner as to whether he “just
forgot” that he had the opportunity to raise issues not previously raised at that hearing. Petitioner
responded that he did forget to bring up the issues he wanted to raise due to his nervousness about
testifying.
Similarly, during cross-examination, petitioner testified that he “forgot” to raise an issue
regarding the admission of the text messages, when he was provided the opportunity to raise other
issues at the White II omnibus hearing, because “you get nervous.” Twice, during petitioner’s
questioning by the parties’ counsel, the circuit court limited the inquiries, finding that the issues
about which petitioner was being asked had been adjudicated earlier in White I or White II.
Specifically, the circuit court limited questioning about Rule 404(b) issues (which would include
issues regarding both the text messages and the photographs of petitioner’s tattoos), finding that
“404(b) has already been decided.” Respondent also inquired about petitioner’s allegation that Mr.
Rosinsky should have sought a jury instruction, pursuant to Syllabus Point 3 of State v. Caudill,
170 W. Va. 74, 289 S.E.2d 748 (1982), that an accomplice’s guilty plea cannot be considered as
proof of the defendant’s guilt. In response, petitioner acknowledged that he included a challenge to
the jury instructions in his “additional grounds” exhibit in the White II habeas proceeding and that
he “didn’t bring that up” when he was asked “if there were any other issues” he wanted to raise at
the White II omnibus hearing.
The circuit court, by order entered on April 20, 2021, denied the instant habeas petition,
finding that the only claim properly before it was the claim that Mr. Wright was ineffective as
substitute habeas counsel in the White II habeas proceeding. The circuit court specifically found
that, “while other issues were raised by [p]etitioner in [the instant] [h]abeas action, all such matters
have been either fully litigated and decided or were previously waived” in White I or White II.
Based upon its review of Mr. Wright’s testimony, the circuit court rejected the claim that Mr.
Wright had provided petitioner ineffective assistance of counsel in the White II habeas proceeding.
The circuit court reiterated its ruling that there was no cause to allow Mr. Wright to withdraw from
the White II habeas proceeding, although requested by petitioner, because “nearly all of the
lawyers in Cabell County know each other and finding an attorney practicing in this [c]ourt who
does not have a relationship with Mr. Rosinsk[y] would be difficult[,] if not impossible.”
Petitioner now appeals the circuit court’s April 20, 2021, order denying the instant habeas
petition. We review a circuit court’s order denying a habeas petition 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).
6
Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Because we have before us
the denial of petitioner’s second habeas petition, we consider the application of Syllabus Point 4 of
Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981):
A prior omnibus habeas corpus hearing is res judicata as to all matters
raised and as to all matters known or which with reasonable diligence could have
been known; however, an applicant may still petition the court on the following
grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing[.]
166 W. Va. at 762-63, 277 S.E.2d at 608.
On appeal, petitioner raises several claims of ineffective assistance of trial counsel that he
argues that this Court should address herein. Respondent counters that the circuit court properly
found that the only claim properly before it was the claim that Mr. Wright was ineffective as
substitute habeas counsel in the White II habeas proceeding. We agree with respondent.
Petitioner’s first claim of ineffective assistance of trial counsel is based upon his claim that
the search of his cell phone was illegal. We find that the circuit court adjudicated that issue in
White I with the entry of the May 7, 2013, agreed order authorizing a “dump” of petitioner’s cell
phone. In White II, petitioner modified his argument to argue that his lead trial counsel, Mr.
Rosinsky, should not have consented to the agreed order. The circuit court rejected that argument
in White II, finding that Mr. Rosinsky was not ineffective in consenting to the agreed order. At the
omnibus hearing in White II, Mr. Wright questioned Mr. Rosinsky about the issue, and Mr.
Rosinsky acknowledged there were advantages and disadvantages to consenting to the “dump” of
petitioner’s cell phone. Mr. Rosinsky believed that the decision constituted a matter of strategy. As
we noted in White II, “[w]here a counsel’s performance, attacked as ineffective, arises from
occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed
effectively assistive of his client’s interests, unless no reasonably qualified defense attorney would
have so acted in the defense of an accused.” 2020 WL 533116, at *4 (quoting Syl. Pt. 5, Ballard v.
Thomas, 233 W. Va. 488, 759 S.E.2d 231 (2014)). Therefore, having found that the circuit court
adjudicated this issue in White I and White II, we decline to address it.
Next, petitioner argues that Mr. Rosinsky failed to request a limiting instruction with
regard to the admission of the text messages as Rule 404(b) evidence. We adjudicated this issue in
White I by finding that, while the circuit court erred in failing to give an initial limiting instruction
at the time the text messages were admitted, the error was harmless due, in part, to “[the]
overwhelming evidence of petitioner’s guilt.” 2015 WL 7628721, at *5. Therefore, pursuant to
White I, we conclude that petitioner may not re-raise this issue.
Similarly, pursuant to White II, we find that petitioner may not argue that Mr. Rosinsky
was ineffective in failing to object to the admission of the photographs of his tattoos. In White II,
we found that an objection was made that “the photographs were prejudicial and irrelevant.” 2020
WL 533116, at *2. We also rejected petitioner’s argument that an objection should have made that
the photographs constituted improper Rule 404(b) evidence, explaining that, due to the substantial
evidence of petitioner’s guilt, “even if appellate counsel had raised the admission of the
7
photographs of petitioner’s tattoos, there was no reasonable probability that the Court [in White I]
would have reversed his conviction.” Id. at *9.
Finally, we find that petitioner waived the issue of whether a jury instruction based upon
this Court’s decision in Caudill should have been requested. 7 At the omnibus hearing in the instant
habeas proceeding, petitioner acknowledged that he included a challenge to the jury instructions in
his “additional grounds” exhibit in White II and that he “didn’t bring that up” when he was asked
“if there were any other issues” he wanted to raise at the omnibus hearing in White II. At the
beginning of the White II omnibus hearing, the circuit court specifically informed him that,
following Mr. Wright’s presentation on his behalf, it would “take up” any issues “that you have
raised pro se.” Petitioner responded, “All right.”
In the instant habeas proceeding, respondent asked petitioner why he did not raise the
Caudill issue when he was provided the opportunity to raise other issues at the White II omnibus
hearing. Petitioner answered only that he “forgot” to raise the issues he wanted to raise. As we
noted in Losh, an omnibus hearing represents a habeas petitioner’s opportunity to “raise any
collateral issues which have not previously been fully and fairly litigated.” 166 W. Va. at 764, 277
S.E.2d at 609. While petitioner alleges that Mr. Wright’s ineffectiveness denied him that
opportunity in White II, the transcript of the White II omnibus hearing reflects that petitioner was
provided that opportunity but failed to take it. Therefore, we concur with the circuit court’s finding
that the only issue properly before it was ineffective assistance of habeas counsel because all other
issues were adjudicated or waived in White I or White II. 8
We now address whether Mr. Wright provided ineffective assistance of counsel in White
II. The test for evaluating ineffective assistance of counsel claims is as follows:
In the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-pronged test established in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance
was deficient under an objective standard of reasonableness; and (2) there is a
7
We note that, in the Syllabus of State v. Flack, 232 W. Va. 708, 753 S.E.2d 761 (2013), we
modified Syllabus Point 3 of State v. Caudill, 170 W. Va. 74, 289 S.E.2d 748 (1982), and held that
the failure to give the Caudill instruction, that an accomplice’s guilty plea cannot be considered as
proof of the defendant’s guilt, is reversible error only when the instruction is requested by the
defendant. In Flack, we explained that “[w]hether the trial court should instruct the jury how the
accomplice’s testimony could, or could not, be considered is a matter best left to the discretion of
defense counsel” as “[d]efense counsel may have ample reason to get beyond an accomplice’s
damaging testimony as quickly as possible.” Id. at 714, 753 S.E.2d at 767.
8
Petitioner argues that we should review the issues he raises pursuant to the cumulative
error doctrine. However, as we explained in White v. Ames (“White II”), No. 18-0892, 2020 WL
533116 (W. Va. Feb. 3, 2020) (memorandum decision), “[t]he cumulative error doctrine does not
apply where no errors are found.” Id. at *10 (citing State v. Knuckles, 196 W. Va. 416, 426, 473
S.E.2d 131, 141 (1996)).
8
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Based upon our review of the
transcript of the omnibus hearing in the instant proceeding, we find that Mr. Wright’s testimony
supported the circuit court’s findings that, despite his friendship with Mr. Rosinsky, Mr. Wright
represented petitioner’ interests and zealously cross-examined Mr. Rosinsky regarding his
performance as trial counsel. Moreover, the transcript from the White II omnibus hearing reflects
that, at one point during Mr. Wright’s examination of him, Mr. Rosinsky became so emotional that
he apologized to the circuit court for any perceived outburst. Therefore, we find that the record, as
a whole, shows that Mr. Wright’s advocacy on petitioner’s behalf did not fall below an objective
standard of reasonableness pursuant to the first prong of the Strickland/Miller test. Accordingly,
we conclude that the circuit court properly found that there was no ineffective assistance of habeas
counsel and properly denied petitioner’s instant petition for a writ of habeas corpus.
For the foregoing reasons, we affirm the circuit court’s April 20, 2021, order.
Affirmed.
ISSUED: August 30, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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