WRIT CONFERENCE
Thursday, February 24, 2000
1.
In the Interest of: Breanna G., No. 000113 (filed 10-7-99).
Father files an interlocutory appeal challenging the lower court's denial of his motion to
have a child psychologically and psychiatrically evaluated by a physician of the father's
choosing.
Refuse 5-0
2. In the Interest of: Tara C., No. 000131 (filed 1-26-00).
Mother appeals the denial of her Rule 60(b) motion for modification by the lower court. The
mother sought to modify the court's previous order which dismissed an abuse and neglect
petition.
Refuse 5-0
3. In the Interest of: Alecia, Amanda, and Gary A., No. 000133 (filed 1-26-00).
Father appeals the termination of his parental rights.
Refuse 5-0
4. In the Interest of: Robert M. and Daniel P., No. 992538 (filed 9-28-99).
Mother appeals the termination of her parental rights.
Refuse 5-0
5. In the Interest of: Kasey S., Andrew S., and Dustin B., No. 000284 (filed 2-4-00).
Mother appeals the termination of her parental rights.
Refuse 5-0
6. Wayne Edward Krueger v. William Haines, Warden, No. 992402 (filed 9-10-99).
Krueger appeals the denial of habeas relief below.
Refuse 5-0
7. SER Teddy Walker v. George Trent, Warden, No. 992448 (filed 9-16-99).
Walker appeals the denial of habeas relief below.
Refuse 4-1
(Starcher, J.)
8. State of WV and the Mingo County Sheriff's Dept. v. Jill Burgraff, et al., No. 992847
(filed 10-28-99). Burgraff appeals the loss of her home in a drug forfeiture case.
ACCEPT
9. Marvin L. Smith v. Northern Regional Jail, No. 992265 (filed 8/26/99). Petitioner, pro
se, appeals Judge John T. Madden's 5/17/99 order refusing to transfer Mr. Smith to an
institution with appropriate programs. Mr. Smith also seeks to have us file two lawsuits in
Kanawha County one alleging medical indifference and the second alleging causing false
conviction.
Refuse 5-0
10. Marvin Smith v. Brown, Dunlap and Forbes, No. 993530 (filed 12/1/99). Petitioner, pro
se, appeals Judge King's 11/18/99 order dismissing defendants Brown and Dunlap, Kanawha
County Probation Dept. employees. The petitioner argues that the defendants conspired with
Forbes to have the petitioner's probation revoked in Case 92-F-313.
Refuse 5-0
11. SER Steven Moore v. James Huppenthal, No. 992567 (filed 9/29/99). Petitioner, pro se,
seeks a writ of mandamus/prohibition to be released from the Southern Regional Jail. Status
conference is scheduled for 2/16/00.
Refuse 5-0
12. SER David Thomas v. Ealy, No. 992457 (filed 9/22/99). Petitioner, pro se, seeks to have
the circuit clerk enter a default judgment in the underlying case.
Refuse 5-0
13. SER Gary Ferrell v. McCarty, No. 992678 (filed 10/22/99). Petitioner, pro se, seeks a
hearing on the underlying case. Hearing is scheduled for 2/14/00.
Refuse 5-0
14. SER Charles L. Robinson v. Underwood, No. 992679 ( filed 10/6/99). Petitioner, pro se,
seeks release alleging the parole board used wrong standards and failed to comply with
mandatory release requirements.
Refuse 5-0
15. SER James A. Watt v. Underwood, No. 992536 (filed 9/28/99). Petitioner, pro se, seeks
release alleging the parole board used wrong standards and failed to comply with mandatory
release requirements.
Refuse 5-0
16. Robert Jack Wright v. Underwood, No. 992525 (filed 9/27/99). Petitioner, pro se,
appeals Judge Henning's 9/1/99 order denying a writ of habeas corpus, which alleged the
parole board used wrong standards and failed to comply with mandatory release
requirements.
Refuse 5-0
17. SER Justin R. Dennison v. Underwood, No. 992888 (filed 10/29/99). The petitioner, pro
se, seeks release alleging the parole board used wrong standards and failed to comply with
mandatory release requirements.
Refuse 5-0
18. SER Walter Leach Jr. v. Haines, No. 993086 (filed 11/17/99). The petitioner, pro se,
appeals Judge Henning's 9/28/99 order denying a writ of habeas corpus, which alleged the
parole board used wrong standards and failed to comply with mandatory release
requirements.
Refuse 5-0
19. SER Shawn Poore v. Underwood, No. 992687 (filed 10/7/99). Petitioner, pro se, seeks
release alleging the parole board used wrong standards and failed to comply with mandatory
release requirements. On 2/14/00, the Petitioner filed a supplementary petition alleged that
1996 changes allowed the public, including victims and/or families to attend parole hearing.
The 1996 change violates the provision against an ex post facto laws because it hurt the
petitioner in that the victim's mother was the focus of his parole hearing and she was
allowed to address the bd. last. (Related to No. 26913 to be submitted 2/15/00).
Refuse 4-1
(Starcher, j.)
20. SER Daney Marcum v. Underwood, No. 992662 (filed 10/4/99). Petitioner, pro se, seeks
release alleging the parole board used wrong standards and failed to comply with mandatory
release requirements. On 2/17/00, the Petitioner supplemented his petition alleging: (1)
ineffective assistance of counsel; (2) failure of circuit judge to grant petitioner's motion to
have his counsel withdraw; (3) failure to grant change of venue; (4) invalid indictment
alleging “Murder in the First Degree” and failure to contain the word “feloniously;” (5) error
in admitting cassette tape box and $3,000 because they were fruits of the Poison Tree; (6)
error in failing to apply prompt presentment rule; (7) unconstitutionally disparate sentence
to co-defendant; (8) error in allowing witnesses with severe mental disorders to testify; and
(9) failed to meet burden of proof with wholly circumstantial evidence and proper jury
instructions.
Refuse 5-0
21. Geraldine Mahone v. Bowman, No. 992689 (filed 10/7/99). Petitioner, pro se, seeks a
post conviction habeas corpus hearing and appointment of counsel. As of 2/4/00, nothing
filed in Mingo County. Ms. Mahone's direct appeal was refused 4-1 (S) on 5/12/99.
Refuse 5-0
22. Samuel Biggs v. Painter, No. 992691 (filed 10/8/99). Petitioner, pro se, alleges that
because of his counsel's failure to proceed under this Court's 2/23/93 order, he should be
released.
Refuse 5-0
23. SER Craig Adkins v. Haines, No. 992745 (filed 10/14/99). Petitioner, pro se, seeks
another chance to participate in the drug testing based on Warden Painter's 8/2/99 memo
stating; “I will furnish you with another opportunity to submit to an urinalysis test.”
Refuse 5-0
24. SER Glenith Welker v. Williamson, No. 992694 (filed 10/8/99). Petitioner, pro se, seeks
a writ of mandamus. Mr. Welker also has a pro se habeas petition pending in Kanawha
County. According to the Kanawha County Circuit Clerk, there was no response to the 2/97
Motion to Dismiss and no action taken.
25. SER Robert Dale Fisher v. Painter, No. 992656 (filed 10/1/99). Petitioner, pro se, seeks
a writ of habeas corpus. Mr. Fisher also has a habeas petition pending in Mineral County.
On 6/16/99, Judge Jordan appointed counsel to proceed below. On 11/15/99, counsel filed
a motion to withdraw. (Order appoint R. Alt counsel to be faxed.)
Refuse 5-0
26. SER Archie Stephens v. Wayne County Circuit Clerk, No. 992880 (filed 11/1/99).
Petitioner, pro se, seeks a writ of mandamus because no hearing has been held on his habeas
corpus action filed on 11/24/97. After Judge Pratt recused himself, on 7/2/98 this Court
appointed Special Judge Robinson. On 2/9/00, this Court relieved Judge Robinson and
appointed Special Judge Michael Thornsbury.
Refuse 5-0
27. State v. Richard Lucas, No. 992145 (filed 8/4/99). The petitioner appeals his conviction
by a jury of unlawful assault (1 to 5 years and $175 restitution) before Judge Gaughan. The
issues on appeal are:
(1) Was there prosecutorial misconduct in improper remarks to the jury which were
prejudicial to the defendant and resulted in manifest injustice?
(2) Did the circuit court err in allowing the State to exceed the scope of cross-examination
in its re-direct examination of the victim?
Refuse 5-0
28. SER Abner Allen v. Bedell, No. 992523 (filed 9/27/99). The petitioner, pro se, seeks to
compel Judge Bedell to withdraw an alleged fraudulent habeas corpus petition and have a
proper petition submitted.
Refuse 5-0
29. SER David L. Dixon v. Painter, No. 992526 (filed 9/27/99). The petitioner, pro se, seeks
a writ of habeas corpus alleging that the administrative segregation is excessive.
Refuse 5-0
30. SER William Garrett, Jr. v. Painter, No. 992730 (filed 10/14/99). Petitioner, pro se,
seeks an “All-Risk No-Fault- Surity [sic]-Indemnity - Policy, on the Attorney Client
Relationship.” Petitioner alleges that he has been denied adequate and meaningful access
to the prison law library.
Refuse 5-0
31. SER Charles Plantz v. Painter, No. 992798 (filed 10/26/99). Petitioner, pro se, seeks
relief of 2-year parole board review through an overrule of Carper v. Parole Bd., 509 S.E.2d
865 (1998)(Starcher). The petitioner alleges: (1) the change in W.V. Code 62-12-13 (1997)
violates ex post facto provision, and separation of powers; and (2) the parole bd. placed
demands beyond the petitioner's control, namely transfer to Huttonsville.
Refuse 3-2
(Davis, J. &Starcher, J.)
32. SER Richard J. Wilson v. Marion County Circuit Court, No. 993058 (filed 11/15/99).
Petitioner, pro se, seeks grand jury transcripts.
Refuse 5-0
33. SER Jeremy Smith v. Kanawha County Circuit Court, No. 993059 (filed 11/12/99).
Petitioner, pro se, seeks ruling on his mandamus petition filed on 5/27/99 and assigned to
Judge Canady on 5/28/99. The issue raised in the habeas corpus petition is parole eligibility
date either 4/2001 (parole board) or 4/2000 (petitioner).
Grant 5-0
34. SER Michael A. Williams v. Haines, No. 993074 (filed 11/16/99). Petitioner, pro se,
appeals the refusal of his administrative appeal of a magistrate's decision resulting in his
transfer from the Huntington Work Release Center to Huttonsville and the lost of one-year
good time.
Refuse 5-0
35. SER Bobby Ross v. Painter, No. 993085 (filed 11/17/99). Petitioner, pro se, seeks a writ
of habeas corpus to review his 100-year sentence for aggravated robbery, 1 to 15 for
burglary and 1 to 5 for 1st degree sexual assault.
Refuse 5-0
36. SER William Dietsch v. Ross, No. 992814 (filed 10/27/99). Petitioner, pro se, seeks a
writ of habeas corpus alleging: (1) he can not have a sanction of 18 months of good time
when at judgment time, he had earned only 8 months of good time; and (2) administrative
fees taken at Beckley Work Release were illegal.
Refuse 5-0
37. SER Michael D. Boxley v. MacQueen, No. 993264 (filed 11/23/99). Petitioner, pro se,
seeks a writ of mandamus alleging that the circuit court has failed to act on his petition for
writ of habeas corpus or any his motions that were filed on 11-5-98.
Grant 5-0
38. SER Jerome Williams v. Parson, No. 993322 (filed 11/30/99). Petitioner, pro se, seeks
a writ of habeas corpus alleging that he was given an illegal sentence of 10-20 years for
aggravated robbery. A motion for reconsideration is currently pending before Judge
Ferguson.
Refuse 5-0
39. SER James A. Boyles, v. Liller, No. 992744 (filed 10/18/99). Petitioner, pro se, seeks to
change his 2-10 year sentence to the 1-5 sentence in his original plea. On 8/4/99, petitioner
filed a habeas in Hancock County. On 2/2/00, Judge Risovich ordered the Prosecuting
Attorney to file an answer. Petitioner also seeks a mandamus requiring the circuit court to
rule.
Refuse 5-0
40. SER Helen J. Honaker v. Liller, No. 993124 (filed 11/22/99). Petitioner, pro se, seeks a
writ of habeas corpus alleging that although the circuit court refused to include the lesser
offenses, in the co-defendant's trial, the jury was allowed to consider 1 and 2 degree murder
and voluntary and involuntary manslaughter. Petitioner also seeks a rehearing of a 9/10/99
Reconsideration Hearing before Judge Charles McCarty to allow her counsel access to her
medical records including a psychological report.
ACCEPT - APPOINT COUNSEL
41. SER Lonnie Short v. Painter, No. 993305 (filed 12/1/99). Petitioner, pro se, seeks a writ
of habeas corpus alleging that the Commissioner erred in affirming the Warden's denial of
his appeal as untimely. After the petitioner was found guilty of refusing to submit to
Drug/Alcohol Screening, he filed his appeal with the Warden 198 days after the hearing
report. Appeals are to be made within 20 days of the hearing report.
Refuse 5-0
42. SER Arthur S. Gill v. Cooper, No. 993038 (filed 11/12/99). Petitioner, pro se, seeks a
writ of mandamus to compel rulings on his petitions for habeas and mandamus filed in
Summers County on 11/18/99 and 11/12/99, respectively and his motion to disqualify Judge
Irons. By order dated 1/7/00, this Court refused the disqualification motion.
Refuse 5-0
43. SER Michael C. Nelson v. Painter, No. 993307 (filed 12/1/99). Petitioner, pro se, seeks
a writ of habeas corpus alleging that his constitutional rights are violated by his continuing
placement in administrative segregation. The petitioner also alleges that he has suffered
cruel and inhuman treatment in the South Central Regional Jail before his confinement in
Mt. Olive.
Refuse 5-0
44. SER John J. Larch v. Painter, No. 993308 (filed 12/1/99). Petitioner, pro se, seeks a writ
of habeas corpus to file suit against the Southern Regional Jail and Medical Administrator
for a 9-day delay in treating his broken jaw. In addition to a jury trial for punitive damages,
petitioner seeks policy changes to prevent future medical lapses.
Refuse 4-1
(Starcher, J.)
45. SER Milan D. Kukich v. Painter, No. 992889 (filed 10/29/99). Petitioner, pro se, seeks
a writ of habeas corpus alleging that the administrative procedures used to place him in
administrative segregation and the loss of 480 days of good time lacked due process in that
the petitioner was not present at hearings. Petitioner also alleges cruel and unusual
punishment in (1) lack of dietary plan to meet his religious requirements; (2) no contract
with priest; (3) no visit (family problems); (4) denial of appropriate programs; and (5)
unlawful practices.
Refuse 5-0
46. SER Samuel R. Anstey v. Vickers, No. 993327 (filed 12/3/99). Petitioner, pro se, seeks
a writ of mandamus requiring the circuit court to rule on his motion to dismiss a petition
requiring him to pay certain court fees and costs in his underlying conviction. Order dated
1/26/00 was entered. (Warren McGraw appears to have represented the petitioner in the
underlying criminal matter.)
Refuse 4-0
(McGraw, J. - DISQUALIFIED)
47. State v. Charles L. Robinson, No. 993348 (filed 12/20/99). Defendant, pro se, appeals
the circuit court's denial of his motion for release due to medical problems or motion for
alternative sentencing. The defendant also unsuccessfully sought appointment of counsel.
The defendant alleges that he has been diagnosed with idiopathic pulmonary fibrosis, which
cannot be treated in Huttonsville.
ACCEPT - APPOINT COUNSEL
48. SER Oscar S. Waiters v. Painter, No. 993376 (filed 12/15/99). Petitioner, pro se, seeks
a writ of habeas corpus alleging: (1) ineffective assistance of counsel resulting in his plea
in his underlying conviction; (2) need for medical attention due to stress and poor medical
treatment of his right shoulder; (3) inappropriate disciplinary action; and (4) continued
incarceration would only degrade the level of rehabilitation achieved. Additional material
sent 2/18/00.
Refuse 5-0
49. SER Randall Myers, Jr. v. Hancock County Circuit Court, No. 993387 (filed 12/16/99).
Petitioner, pro se, seeks a writ of mandamus requiring the circuit court to rule on the
following motions: (1) Motion for Reduction of Sentence (filed 2/1/99, amended 3/4/99 and
refiled 10/20/99); (2) Motion for Appointment of Counsel; (3) Reconsideration of Motion;
and (4) Motion to Proceed Forma Pauperis. According to Mr. Robinson, Circuit Clerk, only
the motion for reduction of sentence was filed and no order has been entered.
Deferred
50. SER James Crabtree v. Painter, No. 993399 (filed 12/20/99). Petitioner,
pro se, seeks a
writ of habeas corpus. Appeal of denial of habeas relief refused by this Court on 4/21/99 in
No. 990032. The current habeas petition alleges:
(1) circuit court erred in failing to “duly caution” as requiring under WVCode 61-11-19,
the petitioner until the end of his recidivist trial.
(2) circuit court erred in failing to make a proportionality analysis prior to imposing a life
sentence.
(3) circuit court erred in depriving petitioner of his constitutional right to be present when
the judge twice went into jury room to reread instructions; and
(4) both trial and habeas counsel for the petitioner were ineffective. Trial counsel failed
to request hearing or make of record of private contact between judge and jury. Habeas
counsel failed to object to trial judge presiding at habeas.
Refuse 5-0
51. SER Kenneth Drew Sayre v. Painter, No. 993409 (filed 12/21/99). Petitioner, pro se,
is seeking a writ of habeas corpus alleging fraud in the second set of transcripts in his trial
case no. 97-F-132-1. Petitioner alleges the transcript misrepresents the facts. On 1/24/00,
the petitioner also alleged that the Mt. Olive law library is open only 4 days a week and is
overcrowded, thus denying him access to the courts.
Refuse 5-0
52. Ash v. Hawkins, No. 000040(filed 12/14/99 and supplemented 1/13/00). This appeal
concerns the dismissal of an inmate's suit seeking information about a nurse at the Mt.
Olive infirmary and $30,000 in damages for physical and mental distress. On appeal, Ash
argues that the circuit court erred in dismissing the suit before Ash's response to the Motion
to Dismiss, in failing to grant an enlargement of time for a response, in not allowing Ash
interrogatories, in failing to discuss the injunctive relief sought and in not appointing counsel
for Ash.
Refuse 5-0
53. SER Charles Walls v. Painter, No. 993529 (filed 12/21/99). The Petitioner, pro se, seeks
a writ of habeas corpus alleging error in his placement in lock up for 10 months and the loss
of one (1) year good time. The petitioner alleges that “people lied on me.”
Refuse 5-0
54. SER Robert Lee Martinez v. Liller, No. 993526 (filed 12/29/99). Petitioner, pro se, seeks
a writ of habeas corpus alleging that his conviction, based on a plea bargain, was the result
of ineffective assistance of counsel and that the circuit court lacked jurisdiction because the
petitioner resided in Summers County.
Refuse 5-0
55. SER Terry A. Gill v. Wood County, No. 000004 (filed 1/3/00). The petitioner, pro se,
seeks a writ of mandamus maintaining that the circuit court is unnecessarily delaying the
final hearing on his habeas corpus petition which was ordered by this Court in No. 973104.
The petitioner also alleges ineffective assistance of his habeas counsel.
Refuse 5-0
56. SER Ancel Williamson v. Painter, No. 000008 (filed 1/3/00). The petitioner, pro se,
seeks a writ of habeas corpus maintaining the following errors: (1) lack of timely advise on
right to remain silence; (2) failure to grant continuance; (3) double punishment for same act;
(4) verdict in several counts not in conformity with evidence or instructions; (5) jury
instructions; (6) questions by State about false charge; (7)lack of probable cause for arrest;
(8) failure to disclose favorable evidence; (9) improper jury; (10) ineffective assistance of
counsel; (11)State's knowing use of perjured testimony; (12) prejudicial statements by
prosecuting attorney; (13) insufficient evidence; (14) improper communication between
State and witnesses; and (15) newly discovered evidence.
Refuse 4-0
(Maynard, C.J. - DID NOT PARTICIPATE)
57. SER Robert Valentine v. Watkins, No. 993528 (filed 12/29/99). Petitioner, pro se, seeks
a writ of habeas corpus alleging that his discharge date should be about 6/24/00 not 9/6/00
because although he was in the jail from 2/10/99 until 6/24/99, it was credited as street time.
W.V.Code 61-11-24 requires time spend in jail be credited on the sentence.
Grant 5-0
APPOINT COUNSEL
58. SER Jerry C. Pulley, Jr. v. Painter, No. 993525 (filed 12/21/99). Petitioner, pro se,
seeks a writ of habeas corpus alleging that he and other similarly situated inmates are being
denied access to the library, showers, etc., and grievances are unanswered. The petitioner
also alleges that his seven (7) 3.5 floppy disks, containing his files, are being withheld
thereby denying access to the courts.
Refuse 5-0
59. SER Charles W. Fluharty v. Painter, No. 993110 (filed 11/19/99). Petitioner, pro se,
seeks transcripts for a habeas corpus petition. Petitions for mandamus to secure transcripts
were filed on 8/3/99 and 9/7/99 in Hancock County. Motion for recusal of circuit judge filed
9/3/99.
Grant 5-0
60. SER Ballard Johnson v. Haines, No. 000024 (filed 1/5/00). Petitioner, pro se, seeks a writ
of habeas corpus alleging: (1) ineffective assistance of counsel; (2) violation of double
jeopardy clause; (3) denied fair and impartial jury because of denial of change of venue; (4)
trial judge was prejudicial and biased against defendant; and (5) cumulative error. (C.J.
Maynard presided at original trial).
Refuse 4-0
(Maynard, C.J. - DISQUALIFIED)
61. SER Eugene Blake v. Pratt, No. 000025 (filed 1/5/00). Petitioner, pro se, seeks to compel
a ruling in his habeas petition filed 9/10/98. On 2/23/00, Judge Pratt acted on motion to
disqualify.
Refuse 5-0
62. SER Eugene Blake v. Ohio County Circuit Court, No. 000098 (filed 1/19/00). Petitioner,
pro se, seeks a writ of mandamus to be resentenced so he can appeal his 4/3/97 convictions
to this Court. The petitioner asserts that although he indicated his desire to appeal by a
letter dated 5/28/97 to his court appointed counsel, no intent to appeal or appeal was filed.
Refuse 5-0
63. SER Carlos E. Kipp v. Haines, No. 000036 (filed 1/13/00). Petitioner, pro se, appeals the
denial of his habeas petition. On appeal, he alleges that the circuit court erred by refusing
to overturn his 5-year sentence enhancement because of improper procedures concerning an
alleged 1962 conviction. The circuit court found that the enhancement was based on his
admission that he was the same person who was convicted of breaking and entering on
4/16/79 in Cabell County. The circuit court also found that no enhancement was given for
an alleged 1962 conviction for breaking and entering in Wayne County, which Mr. Kipp had
denied.
Refuse 5-0
64. SER Raymond S. Housden v. Haines, No. 000067 (filed 1/13/00). Petitioner, pro se, seeks
a writ of habeas alleging: (1) ineffective assistance of counsel; (2) placed in double jeopardy
by being sentenced to life sentence running consecutively; (3) circuit judge biased against
the petitioner; and cumulative error.
Refuse 5-0
65. SER Daniel R. Maynard v. Scott, No. 000058 (filed 1/12/00). Petitioner, pro se, seeks a
writ of habeas corpus alleging lack of medical treatment, especially dental.
Refuse 5-0
66. SER William D. Zorick, Jr. v. Ohio County Circuit Court, No. 000059 (filed 1/11/00).
Petitioner, pro se, seeks to appeal a 12/8/99 order denying transcripts.
Refuse 5-0
67. SER Darrell Spitznogle v. Monongalia County Circuit Court, No. 000068 (filed 1/11/00).
Petitioner, pro se, seeks a mandamus to have the circuit court resentence him to reestablish
his appeal rights.
Refuse 4-0
(Starcher, J. - DISQUALIFIED)