Writ Conference

Wednesday, March 9, 2005

Defendant, pro se, sentenced to life without mercy following jury conviction for first degree murder conviction, 5 years for possession of explosives and 1-5 years for conspiracy, appeals circuit court order denying his Rule 35(a) motion for correction of illegal sentence. 

Refuse 5 - 0

Defendant, convicted by jury of two counts of sexual assault in the first degree, six counts of sexual abuse by a custodian, five counts of sexual assault in the third degree, and one count of sexual abuse by a parent, appeals circuit court order denying Defendant’s motion for new trial for juror misconduct and error by the trial court in failing to define the term "scandalous offense" at the time it questioned the jury panel and in failing to administer the oath prior to questioning the jury panel.

Refuse 5 - 0

Defendant, convicted by guilty plea of two counts of first degree murder and sentenced to consecutive life without mercy sentences, appeals circuit court order, arguing that he received ineffective assistance of trial counsel and that the circuit court erred by failing to hold an evidentiary hearing on the issue of the Defendant’s criminal responsibility at the time of the crime.

Refuse 3 - 2
( Albright, C.J., Starcher, J.)

Defendant, convicted by jury of third degree sexual assault and sentenced to 1 to 5 years in prison, appeals circuit court conviction order, arguing error in denial of new trial, insufficiency of the evidence, ineffective assistance of counsel, and prosecutorial misconduct. 

Refuse 4 - 1
( Starcher, J.)

Plaintiff appeals circuit court order granting Defendant’s motion to enforce settlement and denying Plaintiff’s motion to alter and amend judgment in this defamation action based upon Defendant’s assertion of an alleged false debt by Plaintiff which damaged his credit, arguing that the circuit court erred in finding an enforceable settlement when there was no written agreement and the alleged oral agreement was not made in front of a court with subject matter jurisdiction over the dispute.

Refuse 5 - 0

Plaintiff appeals circuit court order dismissing his suit for fraud, professional negligence, and violations of West Virginia’s debt collections law for lack of personal jurisdiction over Florida Defendant.

Refuse 5 - 0

Defendant, convicted by jury of sexual abuse, appeals circuit court order denying habeas corpus relief following omnibus hearing, arguing the circuit court erred in failing to find ineffective assistance by trial counsel.

Grant 3 - 2
( Davis, J., Maynard, J.)

8. SER Calvin Gray v. Michael Coleman, Warden, No. 042458 (Filed 12/27/04)

Refuse 5 - 0

Plaintiff, pro se, appeals circuit court order dismissing suit dealing with a Supplemental Trust created for her benefit, arguing that the circuit court erred in not dissolving the trust and in refusing to allow her to have free access to the relevant funds.

Refuse 5 - 0

10. Rena Lynette Taylor v. James A. Cress & Erie Insurance Group, No. 050178 (Filed 1/26/05)

Plaintiff below appeals circuit court order granting summary judgment to Defendant insurance company holding that the company was not obligated to indemnify the insured, arguing that the circuit court erred in ruling that an insurance company can make its reinstatement of an automobile liability insurance policy conditional upon the check issued for the premium being honored by the bank when presented for payment.

Refuse 5 - 0

11. WV DHHR/BCSE v. Richard A. Rushbrook, No. 042184 (Filed 11/18/04)

Defendant, incarcerated, appeals circuit court order denying his appeal of Family Court decision ordering him to pay $25 per month in child support and 50% of all medical expenses not covered by insurance.

Refuse 5 - 0

12. Lisa Kimberly Baney (Shapiro) v. William Daniel Baney, No. 042363 (Filed 12/30/04)

Mother, resident of South Carolina, appeals circuit court order denying mother’s appeal from family court order which found that West Virginia had jurisdiction over modification of relevant child support issues.

Refuse 5 - 0

Defendant, convicted by guilty plea of Driving under the Influence and Driving on Suspended, seeks issuance of a writ of habeas arguing that he is not being properly credited with the time he previously served as ordered by the circuit court.

Refuse 5 - 0

14. SER Mary Poist v. Edward Rudloff, Warden, No. 041929 (Filed 10/8/04)

Defendant seeks issuance of a writ of habeas corpus arguing that her bond should be reinstated due to error by prosecutor in subpoenaing the wrong branch of her pharmacy and using incorrect evidence to obtain revocation of bond and due to ineffective assistance of her counsel.

Refuse 5 - 0

15. SER Roland Suttle v. William Fox, Warden, No. 042054 (Filed 10/27/04)

Defendant seeks issuance of a writ of habeas corpus and appointment of counsel, arguing that his sentencing by the circuit court to consecutive, rather than concurrent, sentences following his expulsion from the Anthony Center for behavioral problems violates his initial plea agreement entitling him to void the agreement and have a trial or entitling him to resentencing to concurrent sentences.

Refuse 5 - 0

16. SER Donald C. Stout v. Robert Holland, Judge, No. 032863 (Filed 12/22/03)

Petitioner/Inmate seeks issuance of writ of mandamus compelling the Circuit Court of Doddridge County to take action in Petitioner/Inmate’s petition for writ of habeas corpus, which was filed below in March of 1999.

Refuse as Moot

Defendant seeks issuance of a writ of mandamus arguing that circuit court has failed to act upon the petition for habeas corpus relief filed below.

Refuse as Moot

18. SER Robert E. Daily v. Hon. Mike Kelly, Family Court Judge , No. 041118 (Filed 6/17/04)

Family Court litigant seeks issuance of a writ of mandamus against Family Court Judge arguing improper denial of records sought by litigant in regard to underlying domestic relations case.

Refuse 5 - 0

Petitioner seeks issuance of a writ of mandamus against the circuit court to obtain ruling on pending motion for entry of default judgment against West Virginia Department of Health and Human Resources, Bureau of Child Support Enforcement, defendant in the underlying suit filed by Petitioner to obtain return of monies withheld from him in previous years.

Grant  5 - 0
Unless Sooner Mooted

20. SER Gary Wilson v. Kanawha County Circuit Court , No. 041966 (Filed 10/18/04)

Defendant seeks issuance of a writ of mandamus arguing delay by the circuit court in addressing issues raised by his underlying habeas corpus action.

Refuse as Moot

21. SER Richard D. Murray v. Hon. Christopher Wilkes, No. 042064 (Filed 11/10/04)

Incarcerated plaintiff seeks issuance of a writ of mandamus against circuit court to obtain reinstatement of his dismissed complaint against state trooper for injuries incurred in alleged unprovoked beating and to obtain guardian ad litem to represent him in this personal injury case.

Refuse 5 - 0 

Defendant seeks issuance of a writ of mandamus arguing that the circuit court is unfairly refusing to provide him with transcripts and other documents from underlying child support enforcement action.

Refuse 3 - 2
( Albright, C.J., Benjamin, J.)

23. In the Matter of: Andrya M. and Cathlyn M., No. 042286 (Filed 12/3/04)

Father appeals circuit court order permanently terminating his custodial rights to his children and placing children permanently in the care of DHHR, arguing that the circuit court erred in terminating his custodial rights to the children and in denying his motion for an improvement period.

Refuse 5 - 0 

24. In re: Kayla M.T., No. 041959 (Filed 10/18/04)

Petitioner/Juvenile appeals order of the court finding her to be delinquent and ordering that she be placed outside of the home.

Refuse 4 - 1
( Albright, C.J.)

25. State of West Virginia v. Guy A. Blankenship, No. 041982 (Filed 10/21/04)

Petitioner/Defendant appeals sentences imposed upon him following his guilty plea to three felony counts of sexual abuse in the first degree and three misdemeanor counts of sexual abuse in the third degree arguing that the court abused its discretion in incarcerating Petitioner/Defendant as opposed to placing him on probation.

Refuse 5 - 0 

26. State of West Virginia v. Martin L. Treadway, No. 042056 (Filed 10/28/04)

Petitioner/Defendant appeals his conviction of unlawful assault, arguing that the court erred by denying Petitioner/Defendant’s motion for judgment of acquittal on the charge of malicious wounding and unlawful assault when there was no evidence of serious bodily injury, the court erred in failing to give Petitioner/Defendant’s proposed instruction on self-defense, and the State did not present evidence sufficient to sustain a conviction.

Refuse 5 - 0 

Petitioner/Inmate appeals the denial of his petition for writ of habeas corpus arguing that the court erred when it dismissed Petitioner/Inmate’s claim of constitutional errors in evidentiary rulings, when it dismissed Petitioner/Inmate’s claim regarding the voluntariness of Petitioner/Inmate’s statement, when it dismissed Petitioner/Inmate’s claims that the trial court failed to instruct the jury on one element of the offense of uttering, when it dismissed Petitioner/Inmate’s claims regarding an improper jury instruction regarding second degree arson, when it dismissed Petitioner/Inmate’s claims regarding the verdict and hand-written language, when it dismissed Petitioner/Inmate’s claims of ineffective assistance of counsel and counsel’s failure to take an appeal, and when it dismissed Petitioner/Inmate’s claims regarding the amount of time served on sentence and credit for time served.

Refuse 5 - 0 

Petitioner appeals civil verdict in favor of Respondent in her slip-and-fall case.

Refuse 5 - 0 

29. Roderick Devison v. WV Bureau of Employment Programs , No. 041974 (Filed 10/20/04)

Petitioner/Grievant, an administrative law judge, appeals circuit court order affirming the denial of his grievance, arguing that his dismissal by the Commissioner of Bureau of Employment Programs was an ultra vires act and should have been set aside.

Refuse 4 - 1
(Starcher, J.)

30. Herman Bailey v. Howard Painter, Warden of Mount Olive Correctional Center , No. 042038 (Filed 10/27/04)

Petitioner/Inmate appeals the denial of his petition for writ of habeas corpus alleging insufficient evidence to support the convictions, disproportionality of sentence, abuse of discretion in running the sentences consecutively, admission of prejudicial evidence, exclusion of relevant evidence due to Rape Shield Law, and ineffective assistance of counsel.

Refuse 5 - 0 

31. SER John Christian v. William Frederick, Administrator of North Central Regional Jail , No. 041946 (Filed 10/1/04)

Petitioner/Inmate seeks issuance of habeas corpus arguing that his right to access to the courts and his rights as an inmate have been violated.

Refuse 5 - 0 

32. SER David R. Hamilton v. Thomas McBride, Warden of Mount Olive Correctional Complex , No. 041928 (Filed 10/7/04)

Petitioner/Inmate seeks issuance of habeas corpus arguing ineffective assistance of counsel and denial of his rights to appeal.

Returnable below for resentencing for purposes of filing an appeal
and appointment of attorney.

Petitioner/Inmate seeks issuance of writ of habeas corpus arguing ineffective assistance of counsel and denial of his rights to appeal.

Refuse 5 - 0 

34. SER Michael L. McKinney v. Thomas McBride, Warden of Mount Olive Correctional Center , No. 042036 (Filed 10/26/04)

Petitioner/Inmate seeks a writ of habeas corpus arguing that his guilty plea was involuntary, that he suffered ineffective assistance of counsel, and that his sentence was both excessive and illegal.

Refuse 5 - 0 

35. SER Thomas Lewis v. N. Edward Eagloski , No. 041309 (Filed 7/14/04)

Petitioner seeks issuance of writ of mandamus to compel the Circuit Court of Putnam County to credit him for "good time" for time he spent in jail awaiting trial.

Deferred

Petitioner/Inmate seeks issuance of mandamus to compel the circuit court to act on Petitioner/Inmate’s petition for writ of habeas corpus.

Refuse as Moot

Petitioner/Inmate seeks issuance of writ of mandamus compelling circuit court to rule on habeas corpus petition.

Refuse 5 - 0 

38. In the Matter of: Joseph K. and Stephanie K., No. 042127 (Filed 11/9/04)

Petitioner/Father appeals the termination of his parental rights, arguing that the circuit court erred in its interpretation of the definitions and provisions contained in the abuse and neglect statutes and in its application of the abuse and neglect statutes to the facts of this case in that the court failed to balance or to accommodate statutory provisions governing improvement plans and period and the preservation of the family unit and that the circuit court’s interpretation of applicable provisions of law contravenes both the ejusdem generis rule and the absurd results doctrine of statutory construction.

Refuse 4 - 1
(Albright, C. J.)

Petitioner/Mother appeals the termination of her parental rights arguing that should at least have been given the opportunity to show her improvement.

Refuse 5 - 0 

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