Robert R. v. Ralph Terry, Acting Warden, 16-1121

In 2010 Robert R. was indicted on 56 sexual-offense counts involving four minors; 21 counts were dismissed pretrial and a jury convicted him on 30 counts, with five counts unresolved.
He was sentenced to an aggregate term of 125 to 295 years. He appealed; this Court affirmed his convictions and sentence in State v. Robert Scott R., Jr., 233 W.Va. 12, 754 S.E.2d 588 (2014).
On direct appeal he argued (1) prosecutor remarks in opening warranted a mistrial and (2) the trial court failed to conduct the Rule 404(b)/McGinnis hearing before admitting other-bad-acts evidence; this Court found waiver or harmless error and affirmed.
Petitioner filed a pro se habeas petition (later amended) raising ineffective assistance of counsel (trial counsel’s failure to object to the opening statement and to certain testimony), prejudicial pretrial publicity, evidentiary errors, and jury taint. An omnibus hearing was held; the circuit court denied habeas relief on November 10, 2016.
On appeal from the habeas denial, petitioner argued Strickland ineffective-assistance and cumulative-error claims. The Supreme Court of Appeals applied the Mathena standard of review and affirmed the denial, concluding petitioner failed Strickland’s prejudice prong and that asserted errors were not numerous or consequential.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for failing to object to prosecutor's opening remarks (waiver on appeal)	Failure to object caused forfeiture of appellate review and thus denied relief	Comments were ultimately non-prejudicial; counsel’s failure did not change outcome	Held: No Strickland prejudice; even absent error result would not differ (claim fails)
Whether counsel was ineffective for failing to object to testimony about pornographic texts (404(b) evidence admitted without McGinnis hearing)	Failure to object prevented reversal on direct appeal and denied petitioner relief	Even without the text-message testimony, overwhelming other evidence made any error harmless	Held: No Strickland prejudice; testimony was cumulative to stronger evidence (claim fails)
Whether cumulative errors deprived petitioner of a fair trial	Combined errors (McGinnis failure, opening remarks, counsel failures) were numerous enough to warrant reversal	Errors were few and insubstantial; the evidence against petitioner was ample	Held: Cumulative-error doctrine inapplicable — errors not numerous or consequential; conviction stands

State v. Robert Scott R., Jr., 233 W.Va. 12, 754 S.E.2d 588 (W. Va. 2014) (direct-appeal decision addressing opening remarks and McGinnis hearing; affirmed convictions)
State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (W. Va. 1994) (sets procedure for Rule 404(b) in-camera hearing and admissibility analysis)
Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (W. Va. 2006) (three-prong standard of review for habeas appeals)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (W. Va. 1995) (adopts Strickland two-prong test for ineffective assistance)
State ex rel. Vernatter v. Warden, W.Va. Penitentiary, 207 W.Va. 11, 528 S.E.2d 207 (W. Va. 1999) (failure to meet either Strickland prong is fatal)
State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (W. Va. 1986) (procedures referenced for in-camera handling of 404(b) offers)
State v. Tyler G., 236 W.Va. 152, 778 S.E.2d 601 (W. Va. 2015) (cumulative-error doctrine requires numerous and consequential errors)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes standard for ineffective assistance of counsel)