Writ Conference
Thursday, January 20, 2005
1. State of West Virginia v. Leonard J. Bova, No. 042236 (Filed 11/29/04)
Defendant, convicted by guilty plea of Fleeing from an Officer while intoxicated and sentenced to 1-5 years, appeals circuit court order denying his motion for reconsideration of sentence, arguing that his sentence was excessive given the circumstances of his case.
Refuse 4 - 0
(Albright, C.J., Disq.)2. State of West Virginia v. Jody Lynn Bobbitt, No. 042237 (Filed 11/29/04)
Defendant, convicted of conspiracy and delivery of hydrocodone and sentenced to two concurrent 1-5 year terms in prison, appeals circuit court’s order denying her motion for probation.
Refuse 5 - 0
3. State of West Virginia v. Edward A. Jordan, No. 042290 (Filed 12/6/04)
Defendant, pro se, moves for appointment of counsel and seeks appeal of his conviction following jury trial.
Refuse 4 - 0
(Starcher, J., N/P)4. SER Edward Jordan v. Hon. H.L. Kirkpatrick, No. 042431 (Filed 12/14/04)
Defendant, pro se, seeks issuance of a writ of prohibition against circuit court arguing that the circuit court’s actions constitute a deprivation of his speedy trial rights.
Refuse 4 - 0
(Starcher, J., N/P)5. State of West Virginia v. John Dillon, Defendant, No. 042294 (Filed 12/6/04)
Defendant, convicted by jury of burglary, appeals circuit court order denying his motion for alternative sentencing such as probation, his motion for new trial and sentencing him to serve 1-15 years in prison, arguing that the prosecutor made improper remarks during opening and closing arguments.
Refuse 5 - 0
6. State of West Virginia v. Linda S. Riggs, No. 042421 (Filed 12/21/04)
Defendant, convicted by jury of one count of breaking and entering and one count of attempted breaking and entering, appeals circuit court order sentencing her to a 1-10 years and 1-3 years in prison to be served concurrently, arguing insufficiency of the evidence to convict her and ineffective assistance of counsel.
Refuse 5 - 0
7. Dena Smith v. Softrac America, Inc., No. 041661 (Filed 9/15/04)
Employee appeals circuit court order enforcing arbitration agreement in underlying deliberate intent personal injury action brought pursuant to W.Va. Code Section 23-4-2, arguing that the arbitration agreement is not enforceable to bar her suit as it is an adhesion contract favoring only the employer.
Deferred
8. SER Charles Raymond Sanders v. Michael Coleman, Warden, No. 042134
(Filed 11/10/04)Defendant, convicted by jury of armed robbery, assault and conspiracy and sentenced to 75 years for armed robbery, 2-10 for assault, and 1-5 for conspiracy, appeals circuit court order denying his petition for habeas corpus and his motion for reconsideration of the denial of habeas corpus relief, arguing insufficiency of the indictment and ineffective assistance of counsel among other errors.
Refuse 5 - 0
9. SER Willis Ray Stollings v. William Haines, Warden, No. 041327 (Filed 7/22/04)
Defendant seeks issuance of a writ of habeas corpus arguing that there has been "extraordinary dereliction of duty" on the part of the Logan County Circuit Court in failing to rule on an underlying habeas case.
Refuse 4 - 0
(Maynard, J., Disq.)10. SER Barry J. Smith v. William Fox, Warden, No. 041637 (Filed 9/9/04)
Defendant seeks issuance of a writ of habeas corpus arguing that the prison officials are violating his constitutional rights by censoring the publications that he may receive while incarcerated by posting an approved vendor list for publishers.
Refuse 5 - 0
11. SER Elwood Johnson et al. v. Thomas McBride, Warden, No. 041705 (Filed 9/21/04)
Prisoners seeks issuance of a writ of habeas corpus arguing that prison is violating their constitutional rights by maintaining them in an administrative segregation unit.
Refuse 5 - 0
12. SER L. Wood Johnson, et al. v. Thomas McBride, Warden, No. 042098 (Filed 10/29/04)
Mount Olive inmates seek issuance of a writ of habeas corpus arguing that conditions at the QII lockdown unit of the prison violate their constitutional rights and require habeas relief. They move to be treated as a class.
Refuse 5 - 0
13. SER Larry L. Lemasters v. Wetzel County Circuit Court, No. 031581 (Filed 7/8/03)
Defendant seeks issuance of writ of mandamus to require ruling by circuit court on underlying habeas corpus petition.
Grant 5 - 0
USM14. SER Judy D. Parks v. Gregory Burton, Workers’ Compensation Commissioner, No. 040215 (Filed 1/26/04)
Workers’ Compensation Claimant seeks issuance of a writ of mandamus against the Workers’ Compensation Commissioner arguing that there has been a failure to pay mandated medical bills on her behalf.
Grant 4 - 1
(Maynard, J.)
USM15. SER Stanford Tony Allen, Jr. v. Hon. Booker T. Stephens, Judge, No. 040539 (Filed3/5/04)
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.
Deferred
16. In the Matter of: Joseph H., Cassie Cheyenne D., No. 042037 (Filed 10/27/04)
Father appeals circuit court order terminating his parental rights and denying him further visitation with the children, arguing that the circuit court abused its discretion by denying father supervised post-termination visitation with his children.
Refuse 5 - 0
17. In the Matter of: Melissa T., Melinda T., and Tommy T., No. 042135 (Filed 11/10/04)
Mother appeals circuit court order terminating her parental rights, arguing that the circuit court erred in failing to hold a meaningful dispositional hearing by not allowing the Mother to give testimony or present witnesses to prove a change of circumstances and that the circuit court erred in not granting the Mother an improvement period, and in failing to accept the least restrictive alternative appropriate to the circumstances.
Refuse 5 - 0
18. In the Matter of: Alyssa W., Sierra H., No. 042154 (filed 11/15/04)
Mother appeals circuit court order granting the petition for resumption of supervised visits of child with natural father whose parental rights are terminated.
Grant 3 - 2
( Albright, C.J., Starcher, J.)19. In the Matter of: Brittany I., No. 042178 ( Mother’s Petition) (Filed 11/18/04)
Mother appeals circuit court order terminating her parental rights, arguing that the circuit court’s determination that the parental rights should be terminated was based not on the failure to correct the conditions of abuse and neglect but rather on the findings that the parents were not good at parenting.
Refuse 5 - 0
20. In the Matter of: Brittany I. , No. 042179 (Father’s Appeal) (Filed 11/18/04)
Father appeals circuit court order terminating his parental rights, arguing that the circuit court erred in finding that there was no reasonable likelihood that the circumstances that led to removal can be corrected in the foreseeable future and whether the circuit court erred in ending post-termination visitation.
Refuse 5 - 0
21. State of West Virginia v. Joseph Eugene Howard, No. 041681 (Filed 9/20/04)
Petitioner/Defendant appeals his conviction of burglary and grand larceny arguing that the court erred in admitting an incriminating statement made by Petitioner/Defendant, in allowing the testimony of the victim to the value of the property, and in not answering a jury question.
Refuse 4 - 1
(Benjamin, J.)22. State of West Virginia v. Joseph Eugene Howard, No. 041682 (Filed 9/20/04)
Petitioner/Defendant appeals the enhancement of his sentence under the recidivist statute arguing that the out-of-state convictions were not properly authenticated, that the trial court lacked the jurisdiction to impose a life sentence because Petitioner/Defendant was denied effective assistance of counsel, and the court erred in denying Petitioner/Defendant’s motion for directed verdict following the State’s failure to introduce the statutory authority supporting the underlying out-of-state convictions.
Refuse 5 - 0
23. State of West Virginia v. Rosalynn Witherspoon, No. 041783 (Filed 9/30/04)
Petitioner/Defendant appeals the revocation of her probation, arguing that her sentence is unduly harsh and that her probation should not have been revoked.
Refuse 5 - 0
24. W&R, Inc., d/b/a Shockers Lounge v. Mary A. Whiting, No. 041524 (Filed 8/24/04)
Petitioner/Employer appeals decision of the circuit court finding that a former dancer/waitress was an employee rather than an independent contractor.
Grant 5 - 0
25. SER John C. Farmer, Jr. v. Howard Painter, Warden of Mount Olive Correctional Center, No. 041613 (Filed 9/7/04)
Petitioner/Inmate appeals the denial of his petition for writ of habeas corpus, which was filed below, arguing ineffective assistance of counsel.
Refuse 5 - 0
26. SER David Lee Harding v. William Fox, Warden of St. Mary’s Correctional Center, No. 041660 (Filed 9/15/04)
Petitioner/Inmate seeks issuance of writ of habeas corpus arguing failure of the court to conduct voir dire of the jury, insufficiency of evidence, and failure of the court to provide him a copy of his transcript and record.
Refuse 5 - 0
27. SER Joe Aaron Nelson Baker v. William Fox, Warden of St. Mary’s Correctional Center, No. 041789 (Filed 9/27/04)
Petitioner/Inmate seeks issuance of writ of habeas corpus arguing that he was wrongfully convicted.
Refuse 5 - 0
28. SER Marvin Smith v. Evelyn Seifert, Warden of Northern Regional Correctional Center, No. 041810 (Filed 9/27/04)
Petitioner/Inmate seeks issuance of writ of habeas corpus alleging lack of medical care.
Refuse 5 - 0
29. SER Paul David Adkins v. William M. Fox, Warden of St. Mary’s Correctional Center, No. 041867 (Filed 10/5/04)
Petitioner/Inmate appeals the denial of his motion for reconsideration by way of petition for writ of habeas corpus.
Refuse 5 - 0
30. SER Donald R. Barbe v. Ohio County Circuit Court, No. 041441 (Filed 5/18/04)
Petitioner/Inmate seeks issuance of writ of mandamus to compel the Circuit Court of Ohio County to provide Petitioner/Inmate a copy of the transcript of his habeas corpus evidentiary hearing. He also asks this Court to reconsider his appeal of the denial of his petition for writ of habeas corpus.
Refuse 5 - 0
31. SER Miguel Quinones, et al. v. Thomas McBride, Warden of Mount Olive Correctional Center, No. 041521 (Filed 8/23/04)
Petitioners seeks issuance of a writ of mandamus to compel the prison to respect the rights of inmates housed in administrative segregation.
Refuse 5 - 0
32. SER Terry Cutlip v. State of West Virginia Division of Corrections, No. 041641
(Filed 9/13/04)Petitioner/Inmate seeks issuance of writ of mandamus to have his "good time" audited in light of this Court’s decision in Bailey.
Deferred
33. Delmus V. Burge v. Kenneth Fortney and The Equitable Life Assurance Society, No. 040080 (Filed 1/9/04)
Fortney appeals the circuit court’s 09/08/03 order, in which the court ordered The Equitable Life Assurance Society to pay the funds suggested upon (funds in Fortney’s IRA account) to Burge and his attorney up to the unsatisfied amount of the judgment Burge has against Fortney based upon a prior finding of the court that there had been intentional and willful fraud and breach of contract.
Grant 3 - 2
(Maynard, J., Davis, J.)34. Angela C. Householder v. Matthew T. Householder, No. 040184 (Filed 1/16/04)
Mr. Householder appeals the circuit court’s 12/18/03 order, in which the court dismissed from his appeal from the family court’s 12/01/03 order denying his Motion for Reconsideration requesting that he be granted visitation with his daughter at the correctional facility at which he is housed.
Refuse 4 - 1
(Starcher, J.)35. State of West Virginia v. James Cary Jones, 05-007 (Filed 1/13/05)
Defendant moves for entry of emergency stay of imposition of 100 day jail sentence by circuit court of Greenbrier County pending this Court's consideration on appeal of Judge Rowe's denial of the Defendant's Rule 33 motion seeking new trial based upon newly discovered exculpatory evidence.
Deferred
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