Writ Conference
Thursday, September 3, 2009
1. State of West Virginia v. Bucky Duane McIntire, No. 090638 (Filed 4/27/09)
Defendant, convicted by jury of three counts of Third Degree Sexual Assault and one Count of Petit Larceny by guilty plea, appeals circuit court order sentencing him to serve consecutive 2-5 (enhanced as recidivist), 1-5 terms, with concurrent terms of 1-5 and a 1 year jail term for Petit Larceny, arguing that the circuit court erred in ruling that permitting evidence of a sexual assault alleged to have occurred in February of 2007 as proof of guilt as to count three was not a constructive amendment of count three of the indictment.
Refuse 5 - 0
2. State of West Virginia v. William Spurlock, No. 090662 (Filed 4/30/09)
Defendant, convicted of Attempted Murder with Firearm and Malicious Assault with Firearm by jury, appeals circuit court order sentencing him to serve consecutive prison terms of 3-15 and 2-10 years, arguing that the circuit court erred by allowing the firearm demonstration and the display of victim’s wound during trial and that the circuit court erred by not granting the Defendant’s motion for directed verdict or Defendant’s motion for new trial.
Refuse 5 - 0
3. State of West Virginia v. Joseph D., No. 090797 (Filed 5/29/09)
Defendant, adjudicated as a juvenile delinquent due to guilty plea to First Degree Sexual Abuse of a child, appeals circuit court order placing him on probation and requiring him to register as a lifetime sex offender.
Refuse 5 - 0
4. State of West Virginia v. David Keith Adams, No. 090846 (Filed 6/9/09)
Defendant, convicted by jury of Kidnaping and Second Degree Sexual Assault and sentenced to Life with eligibility of parole in 10 years and consecutive 10-25 years, appeals circuit court order denying his motion to reduce his sentence as untimely filed.
Grant 5 - 0
and Remand
5. State of West Virginia v. Charlene Marie DeBerry, No. 090852 (Filed 6/9/09)
Defendant, convicted of Death of a Child by a Parent by guilty plea, appeals circuit court order sentencing her to serve 30 years in prison, arguing that her sentence is excessive and disproportionate.
Defer
6. State of West Virginia v. Johnny Ray Boykin, II, No. 090877 (Filed 6/17/09)
Defendant, convicted of 11 counts involving kidnaping, conspiracy and rape by jury, appeals circuit court order sentencing him to serve 83-215 years in prison, arguing that the circuit court erred in granting motion in limine precluding Defendant from introducing evidence that victim had sex with him subsequent to the alleged sexual assault when the Rape Shield Law (61-8B-11(a) does not on its face deal with subsequent sex between a victim and defendant after the alleged sexual assault and that precluding a Defendant charged with sexual offense from questioning or offering into evidence matters related to the victim’s subsequent sexual conduct with said Defendant constitutes a violation of his Sixth and Fourteenth Amendment rights as well as his rights under Art. III, section 14 of the WV Constitution.
Refuse 5 - 0
7. SER Marilyn Thompson v. Dale Humphreys, Warden, No. 090759 (Filed 5/26/09)
Habeas petitioner, convicted of First Degree Murder by jury and sentenced to Life without Mercy, appeals circuit court order denying her habeas corpus petition following omnibus hearing.
Refuse 5 - 0
8. SER John Franklin Arbogast v. Evelyn Seifert, Warden, No. 090270 (Filed 2/20/09)
Prisoner seeks issuance of a writ of habeas corpus, alleging that WV Parole Board has added an improper requirement (having a pre-approved home plan) as a prerequisite to parole consideration and arguing that he was not given proper notice of this parole condition in the sentencing order in his underlying convictions.
Refuse 5 - 0
9. SER Mary Greene v. Wood County Circuit Court, No. 090012 (Filed 1/5/09)
Defendant seeks issuance of a writ of mandamus against the circuit court and police department for return of personal property taken pursuant to a 2003 search of her home.
Defer
10. SER Bradley O. Lester v. Hon. Michael Thornsbury, Judge, No. 090036 (Filed 1/7/09)
Habeas petitioner below seeks issuance of a writ of mandamus against circuit court alleging improper delay in the adjudication of his underlying habeas corpus petition.
Refuse 5 - 0
11. SER Michael Crummitt v. Berkeley County Circuit Court, No. 090546 (Filed 2/23/09)
Defendant seeks issuance of a writ of mandamus arguing that his court appointed counsel is not communicating with him in regard to his underlying habeas proceeding.
Defer
12. SER Joseph Howard v. David Ballard, Warden, No. 090288 (Filed 2/24/08)
Petitioner seeks issuance of a writ of mandamus to compel prison officials to disclose the identity of a person whose home he was alleged to have burglarized in March of 2004 due to alleged threats by prison staff due to his alleged burglary of one of their friends. Petitioner alleges that the prison staff are threatening him over an action of which he is innocent and wants to prove his innocence by learning the home and the identity of the victim.
Refuse 5 - 0
13. SER Jacob Custer v. Hon. John Hatcher, No. 090499 (Filed 3/27/09)
Petitioner seeks a writ of mandamus to require the circuit court to rule on his underlying writ of habeas corpus.
Refuse 5 - 0
14. SER Gary Dawson v. James Rubenstein, Commissioner, No. 090522 (Filed 4/1/09)
Defendant seeks issuance of a writ of mandamus seeking prison transfer.
Refuse 5 - 0
15. SER James Dale Duncan v. James Rubenstein, Comm’r, David Ballard, Warden, No. 090538 (Filed 4/8/09)
Defendant seeks issuance of a writ of mandamus arguing that his constitutional rights were violated by the circuit court.
Refuse 5 - 0
16. SER Richard D. Bright v. James Rubenstein, Commissioner, No. 090807 (Filed 4/13/09)
Defendant seeks issuance of a writ of mandamus seeking prison transfer.
Refuse 5 - 0
17. SER Clinty Nelson v. Hon. Michael Thornsbury, No. 090648 (Filed 4/28/09)
Defendant, convicted of First Degree Murder, First Degree Sexual Assault, Kidnaping and three counts of Conspiracy and sentenced to Life without Mercy, seeks issuance of a writ of mandamus arguing that circuit court has engaged in unreasonable delay in deciding his pending motion to overturn his conviction.
Refuse 5 - 0
18. SER Robert Rosier v. James Rubenstein, Commissioner, No. 090690 (Filed 5/6/09)
Defendant seeks issuance of a writ of mandamus seeking prison transfer.
Refuse as Moot
19. SER Christopher Browning v. Cabell County Circuit Court, No. 090729 (Filed 5/15/09)
Defendant seeks issuance of a writ of mandamus arguing that circuit court has acted with unreasonable delay in ruling upon his underlying habeas corpus petition.
Grant 5 - 0
Unless Sooner Mooted
20. SER Warren Hester II v. State of West Virginia, No. 090714 (Filed 5/12/09)
Defendant seeks issuance of a writ of prohibition arguing that state statute should bar access to his out-of-state juvenile records.
Refuse 5 - 0
21. SER Jason C. Brown v. Cabell County Circuit Court, No. 090737 (Filed 5/15/09)
Defendant seeks issuance of a writ of prohibition to prevent the circuit court from enforcing its order staying the DOC from releasing Defendant from custody and ordering Defendant to serve a sentence of 18 years in prison.
Defer
22. In the Matter of: Roger, Kelci and Raymond, No. 090702 (Filed 5/8/09)
DHHR and GAL appeal circuit court permanent placement order separating brother from his brother and sister, arguing that separation of the siblings is contrary to the best interests of the children.
Refuse 4 - 1( Workman, J.)
23. In the Matter of: Kirsten, Briana and Morgan C., No. 090704 (Filed 5/8/09)
Mother appeals circuit court order terminating her parental rights.
Refuse 5 - 0
24. In the Matter of: Hunter Jo. P., No. 090712 (Filed 5/12/09)
Father appeals circuit court order terminating his parental rights.
Refuse 5 - 0
25. In the Matter of: Gavin William D. & Mariah Laraine D., No. 090724 (Filed 5/14/09)
Father appeals circuit court order terminating his parental rights.
Refuse 5 - 0
26. In the Matter of: Bryce L. and Nickolas L., No. 090746 (Filed 5/21/09)
Maternal Grandparents appeal circuit court order accepting a Stipulated Disposition as to placement of their grandchildren in this abuse and neglect case, arguing that the circuit court erred in finding that the Maternal Grandparents agreed with disposition as to placement of the children.
Refuse 5 - 0
27. In the Matter of: Teresa C., No. 090768 (Father’s Appeal) (Filed 5/26/09)
Father appeals circuit court order terminating his parental rights.
Refuse 5 - 0
28. In the Matter of Teresa C., No. 090769 (Mother’s Appeal) (Filed 5/26/09)
Mother appeals circuit court order terminating her parental rights.
Refuse 5 - 0
29. In the Matter of: Lexi H., No. 090827 (Filed 6/5/09)
Mother appeals circuit court order terminating her parental rights.
Refuse 5 - 0
30. State of West Virginia v. Charles Luther Hendershot, No. 090613 (Filed 4/20/09)
Petitioner appeals the revocation of his probation and the imposition of his original sentence.
Refuse 5 - 0
31. Kevin L. Blocher v. Dana Akers v. Nationwide Mutual Ins., No. 090529 (Filed 4/7/09)
Petitioners appeal the dismissal of Petitioner Deborah Blocher’s claim for negligent infliction of emotional distress.
Refuse 5 - 0
32. SER Keith Powell v. William Fox, Warden, No. 090593 (Filed 4/15/09)
Petitioner appeals the denial of his petition for writ of habeas corpus, arguing that the court erred when it did not find that Petitioner suffered ineffective assistance of counsel when defense counsel failed to move to suppress a tape recording made by a government informant without a court order, failed to seek a decision regarding a motion to dismiss, failed to move to dismiss Count 12 of the indictment (charging conspiracy), and failed to advise Petitioner that the State had failed to provide any discovery in regard to delivery of crack cocaine.
Refuse 5 - 0
33. Elizabeth P. Withers v. Robert K. Withers, Jr., No. 090548 (Filed 4/8/09)
Petitioner appeals the circuit court’s affirmation of the family court’s Distribution Final Order in her action for divorce from her husband. Petitioner alleges that the circuit court erred in affirming the family court’s adoption of the valuation of Respondent’s business presented by Respondent’s expert and in affirming the family court’s adoption of Respondent’s Proposed Distribution Order.
Refuse 3 - 2 ( Workman, J., Ketchum, J.)
34. SER Kevin T. McVay v. William Fox, Warden, No. 090493 (Filed 3/27/09)
Petitioner seeks the issuance of a writ of habeas corpus based on his parole denial.
Refuse 5 - 0
35. SER James F. Pipes v. David Ballard, Warden, No. 090553 (Filed 4/3/09)
Petitioner seeks the issuance of a writ of habeas corpus, arguing that indigent inmates are denied access to the courts, due process, and equal protection by a prison policy making them pay for postage and copies.
Refuse 5 - 0
36. SER Neil J. Williams v. David Ballard, Warden, No. 090673 (Filed 5/1/09)
Petitioner, though styling this matter as a petition for writ of prohibition, seeks habeas relief, challenging the prison's policy of charging inmates for photocopies, changing library hours, and preventing inmates from helping one another with legal work.
Refuse 5 - 0
37. Charles B. Franklin v. WV Board of Probation and Parole, No. 090715 (Filed 5/12/09)
Petitioner seeks a writ of habeas corpus, arguing that the Parole Board has denied his due process right to a fair parole hearing.
Refuse 5 - 0
38. SER David Mott v. Kanawha County Circuit Court, No. 090547 (Filed 2/23/09)
Petitioner seeks to compel the court to take action in his habeas corpus action pending below since 2004.
Refuse as Moot
39. SER Frantz Henry Morris v. Mark Karl, Judge, No. 090398 (Filed 3/18/09)
Petitioner seeks to compel the lower court to rule on his motion to set aside his conviction.
Grant 5 - 0 Unless Sooner Mooted
40. SER Lawrence E. Scible v. Fayette County Circuit Court, No. 091023 (Filed 4/2/09)
Petitioner seeks to compel the lower court to rule on a motion to alter or amend its order summarily refusing his latest petition for writ of habeas corpus, which was filed on January 21, 2009.
Grant 5 - 0 Unless Sooner Mooted
41. SER Mark Stickler v. Cabell County Circuit Court, No. 090617 (Filed 4/20/09)
Petitioner seeks to compel the lower court to produce certain requested documents.
Refuse 5 - 0
42. SER Joseph Grondin v. Wood County Circuit Court, No. 090631 (Filed 4/23/09)
Petitioner seeks to compel the lower court and the State to conduct further evidentiary hearings, rule on motions filed pro se by Petitioner (though he has appointed counsel), and to produce certain requested documents. He also asserts a claim of ineffective assistance of counsel.
Refuse 5 - 0
43. In the Matter of: Robert F., Jr.; Wesley F.; and Brittney F., No. 090562 (Filed 4/10/09)
Petitioner/Father appeals the termination of his parental rights, arguing ineffective assistance of counsel, hearsay, wrongful termination of his improvement period, denial of opportunity to appear at hearings and assist in his defense, and denial of a dispositional improvement period.
Refuse 5 - 0
44. In the Matter of: Regan Michelle; Jeffrey, Jr.; and Abby Rose I., No. 090711 (Filed 5/12/09)
Petitioner/Mother appeals the termination of her parental rights, arguing that the court erred in not holding a hearing at the end of the improvement period, as close in time as possible after the end of the improvement period and within sixty days of the termination of the improvement period as required by statute; that the court erred in terminating parental rights; and that Petitioner/Mother’s ability to successfully complete her improvement period was hampered by having three different attorneys at different points of the process, by the social relationship Jodie Boylen’s and James Bradley’s children have with Petitioner/Mother as well as that between Jodie Boylen’s grandchildren and Petitioner/Mother’s children, and by the inappropriate actions of the DHHR worker.
Refuse 5 - 0
45. In the Matter of: Katelyn Paige T. and Joel Isaiah T., No. 090725 (Filed 5/15/09)
Petitioners GAL and DHHR appeal the lower court’s decision dismissing an abuse and neglect petition against Respondent/Mother, arguing that there was clear and convincing evidence that sexual abuse occurred and that Petitioner/Mother refused to acknowledge that Michael A., Sr., committed sexual abuse upon her children and, therefore, failed to protect her children.
Grant 5 - 0
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