West Virginia Supreme Court of Appeals
Writ Conference
Wednesday, June 29, 2005
1. State
of West Virginia v. Richard A. Hinkle, Jr., No. 050537 (Filed
3/11/05)
Defendant appeals
circuit court order convicting him based upon jury verdict of Voluntary Manslaughter
and two counts of Wanton Endangerment and sentencing him to 15 years for voluntary
manslaughter to be served consecutively with 2 consecutive 5 year terms for
wanton endangerment convictions for a total of 25 years in prison. He argues
that the circuit court erred in refusing Defendant's motion to Dismiss one
of the Wanton Endangerment counts, erred when it denied Defendant's Motion
for Judgment of Acquittal, erred when it admitted so-called 404(b) evidence
at trial, erred when it imposed consecutive sentences upon the Defendant and
erred by committing plain errors in the case.
Refuse 3 - 2
( Albright, C.J., Starcher, J.)
2. State of West Virginia
v. Marcus Goodbar, No. 050680 (Filed 4/4/05) Refuse 5 - 0
Defendant appeals
circuit court order denying his Rule 35(b) Motion for Reconsideration of Sentence,
arguing that the circuit court erred in not holding a hearing on the issue
prior to denial.
3. State of West Virginia
v. Benny J. Williams, No. 050768 (Filed 4/12/05) Refuse 5 - 0
Refuse 5 - 0
Defendant appeals
circuit court order convicting him of one count of perjury based upon jury verdict
and sentencing him to serve 1-10 years in prison concurrently with his sentence
in the underlying criminal case, arguing that the underlying indictments for
perjury were fatally defective as they did not cite which portions of his testimony
were alleged to be perjury and that the evidence at trial was insufficient as
a matter of law to sustain his conviction for perjury.
Defendant appeals circuit
court order based upon jury verdict sentencing him to serve consecutive sentences
of 1-15 years for Delivery of a Controlled Substance and 1-5 years for Conspiracy
to Deliver a Controlled Substance.
5. State
of West Virginia v. Troy Knuckles, No. 050926 (Filed 4/28/05) Refuse 5 - 0
Defendant appeals
circuit court order revoking Defendant's probation due to guilty plea in Virginia
case.
6. State of
West Virginia v. Roy Carpenter, Jr., No. 051168 (Filed 5/27/05) Refuse 5 - 0
Defendant appeals
circuit court order sentencing him to 1-10 years in prison based upon guilty
plea to Receiving Stolen Goods, arguing that the circuit court violated his rights
to Equal Protection of law by discriminating against him based upon his age.
7. Beaver Ridge Resort Condo Owners v. Michael J. Walsh, No. 042322 (Filed 12/9/04) Defendant, a Maryland resident, appeals circuit court order denying his motion to vacate default judgment order, arguing that the circuit court lacked personal jurisdiction over the Maryland resident because the certified mail notices were returned as “unclaimed” rather than “refused” as mandated by W.Va. Code 56-3-33 (c) and arguing that the circuit court erred in not providing Defendant with a rehearing on the substantive issues in the underlying suit as required by W.Va. Code § 56-3-26 based upon the lack of personal service of nonresident Defendant.
Refuse 4 - 1
( Starcher, J.)
8. Dwana A. Gilliam v. Andrew Nason and William Watkins, No. 042462 (Filed 12/30/04)Plaintiff appeals circuit court order dismissing Defendant, the divorce attorney of Plaintiff's former husband, from her malpractice lawsuit, finding that the former husband's attorney, ordered by the Family Law Master to complete a QDRO, with costs for this preparation ordered split between Plaintiff and Defendant, had no legal duty toward Plaintiff/client's former wife.
Refuse 4 - 1
( Albright, C. J.)
9. Charles L. Haynes v. Dr.
Teodoro Jimenez, and Primecare Medical of WV Inc., No. 050097 (Filed
1/10/05) Refuse 5 - 0
Plaintiff appeals summary
judgment order in favor of Defendants, dismissing this medical malpractice
suit as barred by the statute of limitations and for failure to comply with
the mandatory screening certificate of merit.
10. SER Dammien
Thomas v. Howard Painter, Warden, No. 050164 (Filed 1/25/05) Defendant
appeals circuit court order denying his habeas corpus petition following omnibus
hearing, arguing that the court erred in finding that the Defendant did not
receive ineffective assistance of counsel.
Refuse 5 - 0
11. Linda
Farley v. Jeffrey Shook, D. P.M., No. 050358 (Filed 2/16/05)
Plaintiff in medical
malpractice case appeals circuit court order granting summary judgment to two
defendants/podiatrists, arguing that the circuit court erred in denying Plaintiffs
additional time in which to name Expert Witnesses and by Granting Summary Judgment
to Defendants based upon the Plaintiffs' failure to have expert testimony to
meet their burden of proof.
Grant 5 - 0
Refuse 5 - 0
12. William
Lee Richardson v. Super 8 Motel, No. 050572 (Filed 3/16/05)
Defendant appeals
circuit court order dismissing this pro se lawsuit for failure to prosecute.
13. Hope Calvert
v. Pat H. Napier, Jr., No. 050737 (Filed 4/8/05)
Defendant in suit
for recision of land transfer appeals circuit court order granting summary judgment
in favor of Plaintiff below arguing that a seven and a half year delay between
argument of the motion and ruling by the Court where no activity occurred in
this case is improper.
Refuse 4 - 1
( Starcher, J.)
14. In Re:
Pamela S. Cole, an alleged protected person, No. 050797 (Filed 4/14/05) Refuse 5 - 0
Protected person,
diagnosed with schizophrenia, pro se, appeals circuit court order appointing
her brother to be her guardian/conservator.
15. SER
Herman Catlett v. Michael Coleman, Warden, No. 050841 (Filed 4/15/05) Refuse 5 - 0
Defendant appeals
circuit court order denying third habeas corpus petition, arguing that he now
has newly discovered evidence in the form of an affidavit from co-defendant which
would support a self defense argument in regard to his 1986 conviction for First
Degree Murder and sentence of Life without Mercy as well as lab reports which
support new defense.
16. In Re: Bobby
Lee B., Juvenile, No. 050864 (Filed 4/18/05)
DHHR appeals circuit court order
requiring DHHR to pay an evaluator for a sex offender evaluation of a juvenile
at a rate higher than the Medicaid rate, arguing that such order violates W.Va.
Code Section 49-7-33. DHHR also seeks stay against circuit court to prevent entry
of any further order which would pay providers to perform relevant evaluations
at higher than the Medicaid rate.
Grant 5 - 0
17. SER Orville C. Massey,
Jr. v. Thomas McBride, Warden, No. 051191 (Filed 6/1/05) Refuse 5 - 0
Defendant appeals circuit court
order dismissing habeas corpus petition and resentencing him for prior conviction
to restart appeal time arguing that he was deprived of his right to appeal his
criminal conviction based upon his appointed counsel's failure to file his petition
for appeal and that he did not agree or understand about the resentencing process.
18. SER James Edward
Watson v. Mark Williamson, Warden of Denmar Correctional Center, No. 041674 (Filed
9/17/04)
Petitioner/Inmate seeks issuance
of writ of habeas corpus alleging that he has been denied credit for time served.
Grant 5 - 0
19. SER Gregory Gaines v. Thomas McBride, Warden, No. 042359 (Filed 12/3/04) Petitioner, convicted by guilty plea to 1-15 years for Nightime Burglary, seeks a writ of habeas corpus, arguing that he has been improperly denied credit for pre-sentence jail time of 163 days.
Deferred
20. SER
Joseph Wayne Batton v. West Virginia Board of Probation & Parole,
No. 042387 (Filed 12/7/04) Refuse 5 - 0
Defendant, convicted
by guilty plea of one count of Sexual Assault in the First Degree and one count
of Sexual Abuse by a Guardian or Custodian and sentenced to consecutive terms
of 15-25 and 5-15 years to run concurrently with a sentence from Wirt County,
seeks issuance of a writ of habeas corpus arguing that his Parole Eligibility
Date must be recalculated and changed from January 2, 2012 to July 2, 2009.
21. SER Henry
Burton v. Thomas McBride, Warden, No. 042192 (Filed 12/27/05)
Defendant seeks
issuance of a writ of habeas corpus arguing ineffective assistance of counsel.
Grant 3 - 2
( Davis, J., Maynard, J.)
22. SER
Michael Mutafis v. Mark Williamson, Warden, No. 042454 (Filed 12/30/04) Refuse 5 - 0
Defendant seeks issuance of a
writ of habeas corpus arguing that his privilege against self incrimination was
violated by his parole officer's failure to mirandize him.
23. SER
Victor Nutter v. Thomas McBride, Warden, No. 050020 (Filed 1/4/05) Refuse 5 - 0
Defendant seeks
issuance of a writ of habeas corpus arguing that the trial judge improperly
presided in his sexual assault trial and improperly dealt with the issue of
change of venue.
24. SER Richard Wayne
Deel v. William Fox, Warden, No. 050143 (Filed 1/14/05) Refuse 5 - 0
Defendant, convicted by guilty
plea to one count of incest and four counts of Possession of Material Portraying
a child in sexual explicit conduct and sentenced to 5-15 years for the incest
count to be served consecutively with 4 terms of 2 years each for the possession
of sexually explicit material portraying a minor, seeks issuance of a writ of
habeas corpus arguing ineffective assistance of counsel.
25. SER Stanley Myers
v. William Fox, Warden, No. 050142 (Filed 1/18/05) Refuse 5 - 0
Defendant, convicted by guilty
plea after reversal of original conviction, seeks issuance of a writ of habeas
corpus arguing that the Parole Board abused its discretion in considering the
length of the prior reversed sentence in denying Defendant parole.
26. SER
James Farris v. Thomas McBride, Warden, No. 050168 (Filed 1/20/05) Refuse 5 - 0
Defendant, whose
prior habeas was refused by circuit court following omnibus hearing, seeks
issuance of a writ of habeas corpus arguing insufficiency of the evidence and
false testimony of expert witness.
27. SER
Sean Harris v. Thomas McBride, Warden, No. 050074 (Filed 1/27/05) Refuse 5 - 0
Defendant seeks
issuance of a writ of habeas corpus arguing that prison officials are depriving
him of privileges without a hearing to allow him to dispute the facts leading
to the loss of privileges.
28. SER Dennis Gene Pauley
v. Thomas McBride, Warden, No. 050257 (Filed 2/2/05)
Defendant, convicted by jury
of sexual offenses, seeks issuance of a writ of habeas corpus arguing that his
criminal case should be reviewed based upon improprieties in the actions of the
investigating officers relating to the taking of his statement and based upon
perjured trial testimony by his half brother.
Deferred
29. SER
William Jones v. William Haines, Warden, No. 050788 (Filed 2/3/05) Refuse 5 - 0
Inmate seeks a writ
of habeas corpus and appointment of counsel following imposition of habitual
offender life sentence.
30. SER
Olvie Lee McClanahan, Jr. v. William Haines, Warden, No. 050307
(Filed 2/7/05) Refuse 5 - 0
Defendant, convicted by guilty
plea of voluntary manslaughter and first degree robbery and sentenced to concurrent
35 year and 15 year prison terms, seeks issuance of a writ of habeas corpus,
arguing ineffective assistance of counsel based upon failure to file a motion
to reduce his sentence.
31. SER John Anthony
Turner v. Thomas McBride, Warden, No. 050305 (Filed 2/9/05)
Inmate seeks a writ of
habeas corpus, alleging improper conditions of confinement at Mount Olive Correctional
Center.
Deferred
32. SER
Gregory Mitchell v. William Fox , Warden, No. 050306 (Filed 2/9/05)
Defendant seeks
issuance of a writ of habeas corpus, arguing that he received ineffective assistance
of counsel when counsel did not ensure that he was present for his own sentencing
hearing.
Deferred
33. SER
Elmer A. Kisner, Jr. v. Edward J. Rudloff, Warden, No. 050312 (Filed
2/10/05)
Defendant, who entered
an Alford plea to sexual abuse by a parent, custodian or guardian, seeks
issuance of a writ of habeas corpus arguing that his plea was involuntary due
to ineffective assistance of counsel and coercion by the police.
Deferred
34. SER Delbert
Leary v. Thomas McBride, Warden, No. 050359 (Filed 2/16/05)
Defendant seeks
issuance of a writ of habeas corpus arguing ineffective assistance of counsel,
involuntary guilty plea, mental incompetency at the time he entered guilty
plea, and unexpected and excessive sentence.
Refuse 4 - 0
( Davis, J. Not Participating)
35. SER
Gregory Christian v. State of West Virginia, No. 050395 (Filed 2/18/05)
Defendant, incarcerated in a
federal prison for five years on a federal firearms charge and sentenced based
upon his guilty plea by Cabell County Circuit Court to serve two concurrent twenty-five
year sentences in prison for first degree robberies and then a consecutive 3-15
year term for malicious assault of a police officer, seeks issuance of a writ
of habeas arguing ineffective assistance of counsel and involuntary guilty plea.
Refuse 4 - 0
( Davis, J. Not Participating)
36. SER
Anthony Pfeffer v. Thomas McBride, Warden, No. 050439 (Filed 2/23/05)
Mt. Olive prisoner seeks a writ
of mandamus to compel prison officials to change terms and conditions of confinement.
Refuse 4 - 0
( Davis, J. Not Participating)
37. SER
Matthew Stuart Wade v. James Huppenthal, Administrator, No. 050452
(Filed 3/1/05)
Defendant, convicted by guilty
plea to multiple misdemeanors, seeks issuance of a writ of habeas corpus arguing
that he was denied proper credit for thirty days served in jail prior to sentencing
which should have been applied to each of his consecutive 91 day jail terms and
arguing that the wrong man was convicted due to that fact that the circuit court
misspelled his middle name on court documents.
Grant 3 - 2
( Davis, J., Maynard, J.)
38. SER
Edwin Mack Taylor v. WV Board of Probation and Parole, No. 050691 Refuse 5 - 0
(Filed 3/31/05)
Defendant seeks
issuance of a writ of habeas corpus arguing that the Parole Board arbitrarily
denied parole in his case and a writ of mandamus to obtain documents supporting
denial of parole.
39. SER Kevin
Bratcher v. Jim Ielapi, Warden, No. 050785 (Filed 4/5/05)
Pruntytown inmate seeks
issuance of a writ of habeas corpus arguing that his constitutional rights
are violated by double bunking policy implemented by prison.
Deferred
40. SER
Margaret Talouzi v. James Ielapi, Warden, No. 050944 (Filed 5/2/05)
Defendant, convicted
by guilty plea of aggravated robbery and sentenced to 60 years in prison, seeks
issuance of a writ of habeas corpus arguing ineffective assistance of counsel,
prosecutorial misconduct and incompetency of Defendant at time of entry of
guilty plea.
Grant 3 - 2
( Davis, J., Maynard, J.)
41. SER
Paul McCafferty v. William Fox, Warden, No. 051038 (Filed 5/12/05) Refuse 5 - 0
Defendant seeks issuance of a
writ of habeas corpus arguing that the Parole Board improperly denied parole.
42. SER
Curtis Schooley v. William L. Frederick, Warden, No. 051137 (Filed
5/24/05) Refuse 5 - 0
Defendant seeks issuance of a
writ of habeas corpus arguing that he was subjected to an illegal 1-15 sentence
following entry of guilty plea to two counts of daytime burglary.
43. SER David Jeffrey
v. Hon. Paul Zakaib , Warden, No. 050145 (Filed 1/19/04) Refuse 5 - 0
Incarcerated Plaintiff
seeks issuance of a writ of mandamus arguing that circuit court has not ruled
upon his motion for summary judgment in the underlying civil suit for recovery
of money allegedly misappropriated from plaintiff by defendant.
44. SER Dennis B. Burch v.
Hon. Robert Holland, Judge No. 042128 (Filed 11/9/04)
Defendant, convicted
by jury of first degree murder and sentenced to life with mercy, seeks issuance
of a writ of mandamus arguing that circuit court has not issued a final ruling
on his pending petition for writ of habeas corpus.
Refuse 3 - 2
( Albright, C.J., Starcher, J.)
45. SER
Danny Goodman v. McDowell County Circuit Court, No. 042146 (Filed
11/12/04) Refuse 5 - 0
Defendant seeks
issuance of a writ of mandamus arguing that he should be immediately discharged
from DOC custody due to violations of his constitutional rights or in the alternative,
transferred from Northern Regional Jail to Mt. Olive with an order requiring
DOC personnel to cease and desist from obstructing justice by placing him on
unwarranted suicide watches and keeping him from using the library or the mail
service. He also seeks issuance of a writ of mandamus against the circuit court
to expedite his pending habeas corpus case.
46. SER
Christopher Stout v. Hon. Jack Alsop, No. 042404 (Filed 11/18/04)
Defendant, convicted of First
Degree Murder by guilty plea and sentenced to Life with Mercy, seeks issuance
of a writ of mandamus arguing that his court appointed counsel has not filed
a habeas corpus petition in the three years since his appointment.
Deferred
47. SER
Jimmie C. Gardner v. Kanawha County Circuit Court, No. 042402
(Filed 11/22/04)
Defendant seeks
issuance of a writ of mandamus arguing for immediate release from incarceration
based upon circuit court's failure to hold previously ordered evidentiary habeas
corpus hearing dealing Fred Zain issues. In the alternative he seeks issuance
of a writ of habeas corpus requiring a hearing based upon allegations stemming
from testimony in his underlying criminal case by Fred Zain.
Deferred
48. SER
Stephen P. Bowers v. Jerry Detrick, Warden, No. 042186 (Filed 11/29/04)
Defendant seeks
issuance of a writ of mandamus arguing that his constitutional and statutory
rights are being violated by double-bunking.
Deferred
49. SER
Dewey Mullins v. McDowell County Circuit Court, No. 042362 (Filed
11/29/04) Refuse 5 - 0
Defendant seeks
issuance of a writ of mandamus against the circuit court arguing he is entitled
to copies of all evidence against him as well as copies of all transcripts
in his underlying criminal case and asking the Court to order his appointed
counsel to provide such to him.
50. SER
Dana Adam Cottrill v. Hon. George Hill, Judge, No. 042315 (Filed
12/7/04)
Defendant, convicted
by jury of Breaking and Entering an auto, Grand Larceny and Conspiracy to commit
Grand Larceny, seeks issuance of a writ of mandamus arguing that the circuit
court has failed to resentence him as directed by this Court.
Moot
51. SER
Ernest E. Pauley v. Hon. Jay Hoke, Judge, No. 042434 (Filed 12/13/04) Grant 5 - 0
Defendant seeks
issuance of a writ of mandamus arguing that the circuit court has failed to
comply with an 2001 order of WVSCA requiring the court to hold an omnibus hearing
and appoint counsel for Defendant in his underlying habeas corpus action.
52. SER
Orville C. Massey, Jr. v. Thomas McBride, Warden, No. 042429 (Filed
12/21/04)
Defendant seeks issuance of a
writ of mandamus arguing that he was deprived of his right to appeal his criminal
conviction based upon his appointed counsel's failure to file his petition for
appeal.
Moot
53. SER
Harry Johnson v. William Haines, Warden, No. 042435 (Filed 12/21/04)
Defendant seeks issuance of a
writ of mandamus arguing that his facility is violating his constitutional and
statutory rights by requiring him to share his cell with another inmate.
Deferred
54. SER
Dana D. Smith v. Kanawha County Circuit Court, No. 042455 (Filed
12/27/04) Refuse 5 - 0
Defendant, convicted by jury
of two counts of first degree murder and sentenced to Life without Mercy, seeks
issuance of a writ of mandamus arguing that the circuit court is delaying the
evidentiary hearing in his underlying habeas corpus petition and a writ of mandamus
against prison officials arguing that they have improperly placed him in segregation,
taken his legal materials away from him, asked him improper questions relating
to his habeas petition, and refuse to return his legal materials to him.
55. SER
Christopher Graham v. Hancock County Circuit Court, No. 050024 (Filed
1/4/05) Refuse 5 - 0
Defendant seeks issuance of a
writ of mandamus arguing that the circuit court has not provided him with records
in his underlying criminal case which he previously requested.
56. SER
Douglas A. Redleski v. Hon. Lawrance Miller, No. 050083 (Filed 1/10/05) Refuse 5 - 0
Defendant seeks
issuance of a writ of mandamus arguing that circuit court erred in failing
to enter a final order regarding his petition to appear before grand jury to
seek indictment of prosecutor for perjury and obstruction of justice.
57. SER William
Becton v. Hon. Christopher Wilkes, Judge, No. 050252 (Filed 2/2/05)
Defendant seeks
issuance of a writ of mandamus arguing that the circuit court has failed to
act upon his habeas corpus petition.
Moot
58. SER
Charles R. Edgell v. Monongalia County Circuit Court, No. 050304
(Filed 2/9/05)
Defendant seeks
issuance of a writ of mandamus arguing that the circuit court and prosecutor
acted improperly in his underlying criminal and habeas cases.
Moot
59. SER
Jess Williard White v. Evelyn Seifert, Warden, No. 050374 (Filed
2/17/05)
Defendant, convicted of First
Degree Murder and sentenced to Life without Mercy, seeks issuance of a writ of
mandamus arguing that the contract medical provider for his facility is wrongfully
refusing to advise him of the result of a test for cancer.
Deferred
60. SER
Jerry L. Reitmire v. Hon. David Nibert, No. 050407 (Filed 2/22/05)
Defendant seeks
issuance of a writ of mandamus arguing that the circuit court has failed to
act upon his pending petition for habeas corpus challenging fugitive warrant
from State of Florida.
Moot
61. SER Dennis
Yarber v. Fayette County Circuit Court, No. 050430 (Filed 2/22/05)
Defendant seeks
issuance of a writ of mandamus arguing that the circuit court has taken no
action in his underlying habeas corpus petition.
Moot
62. SER Kevin Petty v.
Mercer County Circuit Court, No. 050456 (Filed 2/25/05) Refuse 5 - 0
Defendant, a federal
prisoner, seeks issuance of a writ of mandamus arguing that the circuit court
is obstructing his attempts to obtain a divorce.
63. SER Michael Dunford
v. WV Division of Corrections, No. 050787 (Filed 3/9/05) Refuse 5 - 0
Defendant seeks
issuance of a writ of mandamus arguing that the circuit court improperly denied
his request for credit for 311 days served at the Anthony Center against his
grand larceny sentence instead applying the time to misdemeanor charges and
arguing that the circuit court has refused to appoint another attorney to represent
him since his attorney died.
64. SER
Scott Jacobson v. Hon. Alfred Ferguson, No. 050654 (Filed 3/17/05)
Defendant seeks
issuance of a writ of mandamus arguing that the circuit court will not require
appointed counsel to provide him with a copy of all file materials in his underlying
criminal case.
Deferred
65. SER Danny
Goodman v. McDowell County Circuit Court, No. 050839
Refuse 5 - 0
Petitioner seeks a writ of mandamus
to compel the State to answer his pending habeas corpus petition, and to require
adjudication of the petition.
66. SER Fred
Buck v. Hon. David Nibert, Judge No. 051020 (Filed 5/9/05) Refuse 5 - 0
Defendant seeks
issuance of a writ of mandamus against the circuit court arguing that he needs
file materials in his underlying habeas corpus petition.
67. SER Cornell F. Daye
v. Raleigh County Circuit Court, No. 051092 (Filed 5/19/05)
Defendant seeks issuance
of a writ of mandamus arguing that the circuit court has failed to act in his
underlying habeas corpus petition.
Moot
68. SER Judson White v. Thomas
McBride, Warden, No. 042159 (Filed 11/3/04) Refuse 5 - 0
Inmate seeks a writ
of prohibition to prevent the imposition of sales tax on items purchased from
the Arts & Crafts and Inmate Exchange at Mt. Olive Correctional Complex.
69. SER Maureen
Murphy v. Hon. Lawrance S. Miller, Judge, No. 050920 (Filed 4/27/05) Refuse 5 - 0
Defendant in Florida
suit dealing with funds held in an investment account seeks issuance of a writ
of prohibition to bar West Virginia circuit court from continuing injunction
freezing funds pending the outcome of the Florida action.
70. In the Matter
of: Jamie Kay Q., No. 050628 (Filed 3/23/05) Refuse 5 - 0
Mother appeals circuit court
order terminating her parental rights, arguing that the circuit court erred in
allowing Foster Mother to testify after she failed to comply with sequestration
order and erred by allowing Foster Mother to testify regarding the Developmental
Delays and basing its rulings on a finding that Petitioner/Mother could not properly
care for a child with these delays; erred in terminating mother's parental rights
based upon insufficient evidence and erred in not ordering a less restrictive
alternative to termination, such as long-term assistance for the mother in raising
child.
71. In the Matter of: Charlie
K., Haley C., and Julianne J., No. 050671 (Filed 3/28/05) Refuse 5 - 0
Grandmother appeals circuit court
order granting supervised visitation with her grandchildren, arguing that she
is very bonded to them and that false testimony was given below which led to
the conditions on visitation.
72. In the Matter of:
Greg, Allan, Allisa, Craig, Alaina, Alex S., No. 050652 (Filed 4/4/05) Refuse 5 - 0
Father appeals circuit court
order terminating his parental rights, arguing that the circuit court erred in
finding that there is no reasonable likelihood that the conditions which led
to the abuse or neglect of the children can be corrected in the near future.
73. In the Matter of:
Caroline, Christopher and Terry C., No. 050763 (Filed 4/12/05) Refuse 5 - 0
Mother appeals circuit court
order terminating her parental rights, arguing that she was denied Due Process
by the court's decision to terminate her parental rights based upon evidence
that was not proven by clear and convincing proof and arguing that there was
error in the court's finding there was no reasonable likelihood that the circumstances
which led to removal can be corrected in the foreseeable future.
74. In the Matter of:
Dylan M., No. 050799 (Filed 4/14/05)
Mother appeals circuit court
order terminating her parental rights, arguing that the circuit court lacked
judicial authority to terminate the parental rights of a Canadian citizen when
the subject child was also a Canadian citizen.
Refuse 5 - 0
75. In the Matter
of: Derek and Krista C., No. 050891 (Filed 4/21/05) Refuse 5 - 0
Mother appeals circuit court
order terminating her parental rights, arguing the circuit court abused its discretion
by terminating mother's parental rights and arguing that the circuit court clearly
erred by not granting a post-adjudicatory improvement period to the mother.
76. In the Matter of: Derek
and Krista C., No. 050892 (Filed 4/21/05) Refuse 5 - 0
Father appeals circuit court
order terminating his parental rights, arguing the circuit court abused its discretion
by terminating father's parental rights.
77. State
of West Virginia v. Allen D. Waugh, No. 051014 (Filed
5/9/05) Grant 5 - 0
Defendant/Prisoner
seeks a direct criminal appeal of his conviction of Second Degree Murder, arguing
improper circuit court procedures and the improper rehabilitation of a witness.
78. Douglas A. Cornelius,
Jr. v. F. Douglas Stump, Commissioner of WV DMV, No. 042356 (Filed 12/10/04)
Petitioner appeals
the circuit court's affirmation of the Respondent's administrative revocation
of the Petitioner's license to operate a motor vehicle for driving a motor
vehicle under the influence of alcohol.
Refuse 3 - 2
( Albright, C.J., Starcher, J.)
79. SER James Franklin Pipes
v. Michael Coleman, Acting Warden, No. 050781
(Filed 4/12/05)
Defendant/Prisoner seeks an appeal
of the circuit court's denial of an amended petition for writ of habeas corpus
arguing ineffective assistance of counsel and failure to conduct evidentiary
hearing prior to denial.
Refuse 4 - 1
( Starcher, J.)
80. SER
James Payne v. Thomas McBride, Warden,, No. 050801 (Filed
4/14/05) Refuse 5 - 0
Defendant/Prisoner seeks
an appeal of the circuit court's denial of a writ of habeas corpus arguing
ineffective assistance of counsel and insufficient evidence to find Defendant
criminally responsible at time of crime or trial.
81. Shirley
Hunt Braley v. Roger L. Hunt,, No. 050821 (Filed 4/15/05) Refuse 5 - 0
Petitioner/Ex-Husband appeals
the circuit court order which refused to consider a reduction of alimony or any
modification order during the pendency of proceedings during remand from the
West Virginia Supreme Court of Appeals and also affirmed attorney's fees, arguing
that the WVSCA opinion in Braley I does not preclude consideration upon
remand of an alimony reduction and Ray v. Ray does not deprive a Family
Court from ruling on a petition for modification while a previous modification
is on appeal.
82. Peggy Bobo Alt v.
Blaine K. Alt,, No. 050925 (Filed 4/28/05) Refuse 5 - 0
Appellant/Ex-Husband appeals
the circuit court order finding that his appeal of the ruling of the family
court judge to be non-meritorious and by refusing to remand the matter back
to the family court of Grant County.
83. SER Steven C. Williams
v. Thomas B. Scott, Administrator, No. 050664 (Filed 3/25/05) Refuse 5 - 0
Defendant/Prisoner seeks
an issuance of a writ of habeas corpus, arguing ineffective assistance of counsel
and judicial prejudice.
84. SER Ira Gene Bunch v.
William S. Haines, Warden, No. 050790 (Filed 4/13/05)
Defendant/Prisoner seeks
a writ of habeas corpus arguing the circuit court improperly allowed the jury
to submit questions to a witness; improperly allowed the jury to recall a witness;
improperly instructed the jury as to the legal definitions of “threat
and retaliation”; and improperly allowed the State to attack the Defendant's
Fifth Amendment Right to Remain Silent.
Refuse 4 - 0
( Albright, C. J. Disqualified)
85. SER Joseph Ronald Lee
Johnson v. Jerry Detrick, Administrator, No. 050907
(Filed 4/25/05)
Defendant/Prisoner seeks
a writ of habeas corpus arguing double jeopardy, ineffective assistance of
counsel, unlawful search and seizure and unlawful arrest.
Deferred
86. SER Glenn Tanner
v. Shannon Markle, Administrator, No. 050948 (Filed 4/29/05)
Defendant/Prisoner seeks
a writ of habeas corpus arguing that he was convicted by a tainted jury, received
ineffective assistance of counsel, and is being denied his right of appeal.
Deferred
87. SER
Steven Ray Levister v. William Haines, Warden, No. 050974 (Filed
5/5/05) Refuse 5 - 0
Defendant/Prisoner seeks
a writ of habeas corpus arguing ineffective assistance of counsel, lower court
procedural flaws, and due process violations.
88. SER 1Starr Dalton v.
Thomas McBride, Warden, No. 051079 (Filed 5/16/05) Refuse 5 - 0
Defendant/Prisoner
seeks an appeal of the circuit court's denial of a writ of habeas corpus arguing
ineffective assistance of counsel, unlawfully obtained plea agreement and double
jeopardy.
89. SER William Toncray v.
WV Board of Probation and Parole, No. 051104 Refuse 5 - 0
(Filed 5/16/05)
Defendant/Prisoner
seeks a writ of habeas corpus arguing constitutional violations against the
West Virginia Board of Probation and Parole.
90. SER Timothy Lee Erb v.
James Ielapi, Warden, No. 051147 (Filed 5/25/05)
Defendant/Prisoner
seeks an appeal from the circuit court's denial of a writ of habeas corpus,
arguing that the circuit court erred when it allowed the improper admission
of evidence, and when it allowed the State to proceed with recidivist evidence.
Moot
91. SER John Pauley v. West
Virginia Department of Corrections, No. 050786 Refuse 5 - 0
(Filed 4/13/05)
Defendant/Prisoner
seeks a writ of mandamus arguing that Department of Corrections did not provide
him with proper good time credit.
92. SER Rafelle Edell Dalrois
Harris v. Dan O'Hanlon, Judge, No. 050847 (Filed
4/18/05)
Defendant/Prisoner
seeks a writ of mandamus to compel the Cabell County Circuit Court to hold
a hearing on his outstanding motions.
Moot
93. SER 1Starr Dalton v.
McDowell County Circuit Court, No. 050930 (Filed
4/27/05)
Defendant/Prisoner
seeks a writ of mandamus arguing that the McDowell County Circuit Clerk has
not provided him with a copy of the transcript of the legal proceedings against
him.
Moot
94. SER Victor Nutter v.
Wirt County Circuit Court,, No. 051021 (Filed 5/10/05)
Defendant/Prisoner
seeks a writ of mandamus ordering the Wirt County Circuit Court, the Honorable
Judge Ron Waters to hold a status hearing in his case and that the Petitioner
be allowed to assume his constitutional right of proceeding pro se.
Moot
95. SER Edward A. Jordan
v. Raleigh County Circuit Court, No. 051069 (Filed 5/13/05)
Defendant/Prisoner seeks
a writ of prohibition against the Raleigh County Circuit Court, arguing that
the circuit court did not have jurisdiction to sever the two counts of his
indictment, which violated his right to a speedy trial.
Refuse 5 - 0
96. In the Matter of: Isabella
L. and Samuel F., No. 050842 (Filed 4/18/05)
Petitioner/Mother appeals
the termination of her parental rights arguing that she substantially complied
with all aspects of her post-adjudicatory improvement period.
Refuse 5 - 0
97. In the Matter of: Shyanna
R., No. 050878 (Filed 4/20/05)
Petitioner/Mother
appeals the termination of her parental rights arguing that the circuit court
erred when it found that the Petitioner had not substantially complied with
the terms of her improvement period when the DHHR had failed to provide services
to insure the same.
Refuse 5 - 0
98. In the Matter of:
Shyanna R., No. 051083 (Filed 5/17/05)
Petitioner/Father appeals
the termination of his parental rights arguing that the circuit court erred
when it found that the Petitioner had not substantially complied with the terms
of his improvement period when the DHHR had failed to provide services to insure
the same.
Refuse 5 - 0
99. In the Matter of: Pearlesue
Kaitlyn N. & Kaylee Annamarie N., No. 050916 (Filed 4/26/05)
Petitioner/Paternal Grandmother
appeals the circuit court's order finding the custody agreement, entered into
between the Respondent/Parents and the Petitioner, granting the Petitioner
custody and assigning her parental rights, as void.
Refuse 5 - 0
100. In
the Matter of: Katelin S., Morgan B.; and Mackenzie B., No. 050942
(Filed 5/2/05)
Petitioner/Parents
appeal the termination of their “custodial rights” to their three children,
arguing that their constitutional due process rights and right to confront were
violated; that the circuit court erred when it did not order separate guardians
ad litem for each child; and the court also erred when it denied the parents
a post-adjudicatory improvement period.
Refuse 5 - 0
101.
In the Matter of: Katelynn R. and Izak R.
, No. 050934
(Filed 4/29/05)
Mother appeals termination of her parental rights, arguing that the circuit court improperly denied her request for a dispositional improvement period.
Refuse 5 - 0
102. In the Matter of: Brittany, Jasmine and Keriva M., No. 050941
(Filed 5/2/05)
Mother appeals circuit court order terminating her parental rights, arguing that the circuit court erred in terminating her parental rights in light of the evidence presented at the dispositional hearing and in
denying post-termination visitation.
Refuse 5 - 0
103. In the Matter of: Isiah Marcquis B. and Dawnte Rachell , No. 051133 (Filed 5/24/05)
Mother appeals circuit court order terminating her parental rights, arguing that the circuit court erred in its finding that the children were in imminent danger to such an extent as to justify termination of
parental rights, erred by failing to note that the conditions of abuse and neglect have been substantially corrected or can be within the near future, and prejudiced Mother’s rights by failing to timely enter the dispositional
order.
Refuse 5 - 0
104. In the Matter of: Kelci and Roger P., No. 051163 (Filed 5/26/05)
Father appeals circuit court order terminating his parental rights, arguing that the circuit court erred in terminating Father’s parental rights based upon the same sexual abuse allegations which were made in
regard to prior petition and dismissed when he successfully completed improvement period, erred by denying Father’s Due Process rights to a meaningful hearing when the court refused to continue the dispositional hearing to allow
Dr. Raymond Shapiro to testify and in refusing to consider as substantive evidence Dr. Shapiro’s report from East Ridge based upon a finding that it was not relevant to disposition, and erred in finding that Father had sexually
abused daughter and erred in relying upon Father’s failure to admit such abuse as a basis for the conclusion that his parental rights should be terminated.
Refuse 5 - 0
Home
|
Opinions
|
Site Map
|
Law Library
|
Rules
Staff
|
Search
|
Terms of Use