West Virginia Supreme Court of Appeals

Writ Conference

Wednesday, May 13, 2009

1. State of West Virginia v. John L. Potter, No. 090423 (Filed 3/20/09)

Defendant, convicted by jury of Malicious Assault and Conspiracy, appeals circuit court order sentencing him to serve consecutive 2-10 and 1-5 with proviso that after he was released or paroled based upon the 2-10 for Malicious Wounding that his 1-5 for Conspiracy would be suspended in lieu of 5 years supervised probation. Refuse 5 - 0

2. State of West Virginia v. Kevin B. Payne, No. 090439 (Filed 3/24/09)

Defendant, convicted of two counts of Second Degree Sexual Assault, one count of First Degree Sexual Abuse, and one count of Third Degree Sexual Abuse by jury, appeals circuit court order sentencing him to serve consecutively two terms of 10-25, 1 term of 1-5 years in prison and 90 days in jail. Grant  4 - 1( Workman, J.)

3. John and Andrea McCune v. Lisa Brown and Kanawha Co. Board of Education, No. 090225 (Filed 2/12/09)

Plaintiffs appeal circuit court order granting summary judgment to county board of education in negligence action brought against county board of education for negligent supervision of school activity based upon failure to have security at a middle school basketball game. Refuse 5 - 0

4. The Marriage of: Christine M. Dixon and David P. Dixon, No. 082383 (Filed 12/30/08)

Father seeking reduction in child support obligation appeals circuit court order denying his appeal of Family Court order resulting from his petition for modification of child support, arguing that the Family and Circuit Court erred in attributing Father with a gross annual income of $40,000 and that the Circuit Court erred in failing to appropriately consider the testimony of Father’s therapist as to his mental health condition. Refuse 5 - 0

5. SER Marlin McClain v. David Ballard,Warden, No. 090232 (Filed 2/17/09)

Prisoner held at Mt. Olive Correctional Complex seeks issuance of a writ of habeas corpus to compel Department of Corrections to comply with SER James Berry v. James Rubenstein regarding over-crowding by double bunking. Refuse 5 - 0

6. SER Steven Watkins v. David Ballard, Warden, No. 090271 (Filed 2/19/09)

Petitioner, convicted by jury of Attempted Second Degree Robbery and sentenced to 5-18 years in prison, seeks issuance of a writ of habeas corpus, arguing that he is entitled to immediate discharge from incarceration due to errors in his underlying criminal conviction. Refuse 5 - 0

7. 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. Deferred

8. SER Patrick Joseph Meckling v. David Spencer, Administrator, No. 090337 (Filed 3/5/09)

Prisoner, convicted by jury of Abduction with Intent to Defile and Battery and sentenced to Life as a Recidivist, seeks an original habeas from WVSCA, arguing multiple errors including ineffective assistance and prosecutorial misconduct in his underlying conviction. Grant 5 - 0, Returnable Below

9. SER Floyd M. Bennett, Sr. v. David Ballard, Warden, No. 090397 (Filed 3/13/09)

Habeas petitioner seeks issuance of writ of habeas corpus, arguing that his parole eligibility date is incorrect. Refuse 5 - 0

10. SER David L. Deshayes v. E. I. Wensall, Administrator, No. 090390 (Filed 3/16/09)

Defendant, convicted of three misdemeanors, seeks issuance of a writ of habeas corpus arguing that the magistrate failed to give him credit for time served. Deferred

11. SER Timothy E. Miller v. David Ballard, Warden, No. 090445 (Filed 3/24/09)

Petitioner, pro se, seeks issuance of a writ of habeas corpus challenging his conviction based upon ineffective assistance of trial and habeas counsel as well as Zain III issues. Refuse 5 - 0

12. SER Joseph Howard v. David Ballard, Warden, No. 090288 (Filed 2/24/09)

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. Deferred

13. SER Lloyd Ray Ankney, Jr. v. Greenbrier County Circuit Court Clerk, No. 090389 (Filed 3/16/09)

Habeas petitioner, convicted by guilty plea of three counts of Forgery of a Credit Card and sentenced to three (3) consecutive 1 to10 years in prison, seeks mandamus against circuit clerk alleging that the clerk would not accept the petition for habeas corpus relief which he alleges that he sent to clerk for filing on 1-15-09.  Refuse as Moot

14. SER Michael W. Kuhn v. Cabell County Circuit Court, No. 090406 (Filed 3/18/09)

Habeas petitioner below seeks issuance of a writ of mandamus against circuit court, arguing that the circuit court erred in summarily denying his habeas corpus petition. Refuse 5 - 0

15. SER Warren Hester v. Hon. John Hutchison, No. 090413 (Filed 3/18/09)

Habeas petitioner below seeks issuance of a writ of mandamus against circuit court to require ruling on his motion to set aside prior order appointing counsel to represent him in underlying habeas corpus action.  Refuse as Moot

16. 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. Deferred

17. SER James Berry, Sr. v. Wayne County Circuit Court, No. 090243 (Filed 2/18/09)

Petitioner, pro se, seeks a writ of mandamus against circuit court due to resignation and then re-election during the pendency of petitioner’s underlying habeas corpus petition. Grant 5 - 0, Unless Sooner Mooted

18. SER Shane T. Elkins v. Wayne County Circuit Court, No. 090478 (Filed 3/25/09)

Criminal defendant seeks issuance of a writ of prohibition against circuit court decision denying his motion to remove defendant’s current court appointed counsel and to appoint new counsel. Refuse 5 - 0

19. In the Matter of: Edward Tracie W., Jr., No. 090545 (Filed 4/8/09)

Petitioner, found by jury to have committed an act of juvenile delinquency based upon a finding that he committed Second Degree Sexual Assault, appeals circuit court order denying his motion for reconsideration of order requiring him to register as sex offender for life. Refuse 3 - 2( Workman, J., Ketchum, J.)

20.  In the Matter of: Kathleen D. and Jalynn D., No. 090424 (Filed 3/20/09)

Mother appeals circuit court order terminating her parental rights. Refuse 5 - 0

21.  State of West Virginia v. John Michael Wheeler, Jr., No. 090239 (Filed 2/18/09)

Petitioner appeals his consecutive sentences, arguing that he was denied the opportunity to raise the issue of conflicting risk assessments at a re-sentencing hearing. Deferred

22.  State of West Virginia v. Kenton Mosley, No. 090247 (Filed 2/19/09)

Petitioner appeals his conviction of third offense driving under the influence. Refuse 5 - 0

23.  R&D Trucking Excavating v. Carlton Ray & State Auto Property and Casualty Insurance Co., No. 090109 (Filed 1/23/09)

Petitioner appeals the lower court’s order granting summary judgment to Respondent State Auto and denying Petitioner’s own cross-motion for summary judgment. Refuse 5 - 0

24.  Jeffrey Alan Hylton v. West Virginia Division of Corrections, No. 090169 (Filed 2/2/09)

Petitioners appeal the dismissal of their civil suit against the Division of Corrections, in which they alleged wrongful imprisonment, deprivation of civil rights, and breach of duty created by a special relationship. Refuse 5 - 0

25.  SER Richard Hatfield, Jr. v. George Janis, Warden, No. 082178 (Filed 11/7/08)

Petitioner seeks the issuance of a writ of habeas corpus, challenging the validity of the prison’s new classification system and his change in classification. Refuse 5 - 0

26.  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. Deferred

27.  SER Jonathan N. Ojeda v. James Rubenstein, Commissioner, No. 082109 (Filed 11/5/08)

Petitioner seeks issuance of writ of mandamus to compel the DOC to transfer him from one prison to another so that he can be closer to his family. Refuse as Moot

28.  SER Roger Lee Rowe v. Darrell Pratt, Judge, No. 090084 (Filed 1/16/09)

Petitioner seeks to compel the lower court to take the action mandated by this Court in case number 073580 (i.e., appointment of counsel and hearing). Refuse as Moot

29.  SER Walter Sparks v. James Rubenstein, Commissioner, No. 090105 (Filed 1/22/09)

Petitioner seeks a transfer from the regional jail to a DOC facility. Refuse 5 - 0

30.  SER Duane Maynard v. James Rubenstein, Commissioner, No. 090124 (Filed 1/22/09)

Petitioner seeks a transfer from the regional jail to a DOC facility. Refuse 5 - 0

31.  SER Aron Freeland v. Russell Clawges, Judge, No. 090262 (Filed 2/20/09)

Petitioner seeks to compel the lower court to appoint him new counsel. Refuse 4 - 1( Ketchum, J.)

32.  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. Deferred

33.  SER Gary D. Jones v. Kanawha County Circuit Court, No. 090294 (Filed 2/25/09)

Petitioner seeks to compel the lower court to take action in his petition for writ of habeas corpus, filed below. Grant 5 - 0, Unless Sooner Mooted

34.  SER Timothy Brown v. Pleasants County Circuit Court, No. 090435 (Filed 2/27/09)

Petitioner seeks to compel his attorney to contact Petitioner and to act on his behalf. Refuse 5 - 0

35.  SER Jerry Rose v. Circuit Court of Raleigh County, No. 090391 (Filed 3/16/09)

Petitioner seeks to compel the lower court to dismiss his conviction due to a lack of evidence and the refusal of the circuit clerk to release to Petitioner his records. Refuse 5 - 0

36.  SER Neil J. Williams v. David Ballard, Warden, No. 090399 (Filed 3/17/09)

Petitioner seeks to compel the warden to recognize Petitioner’s cell as a single-occupancy cell. Refuse 5 - 0

37.  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. Deferred

38.  SER Edward W. Sloan v. J. D. Beane, Judge, No. 082406 (Filed 12/31/08)

Petitioner seeks to prohibit the further use of a release of information pertaining to a 401(k) account, to prohibit the court from further asserting that his ex-wife’s counsel’s use of the release has been condoned by the Bar Disciplinary Committee or the Supreme Court, to prohibit the court from further quashing any subpoena necessary to identify the usage of the release, and to prohibit the court from denying any further motions necessary to protect Petitioner’s rights. Refuse 4 - 1( Ketchum, J.)

39.  SER Cornell F. Daye v. John Hutchinson, Judge, No. 090004 (Filed 1509)

Petitioner seeks relief in prohibition to restrain Judge Hutchinson from presiding over a habeas corpus petition pending below. He also seeks to compel the lower court to produce certain documents so that he might appeal a 1997 conviction. Refuse 5 - 0

40.  In the Matter of: Carmen Rebecca H., No. 090176 (Filed 2/3/09)

Petitioner/Mother appeals the termination of her parental rights and the court’s denial of post-termination visitation. Refuse 5 - 0

41.  In the Matter of: Kayla R. and Janissa H., No. 090198 (Filed 2/5/09)

Petitioner/Mother appeals the termination of her parental rights, arguing that DHHR failed to make reasonable efforts in this case and that she should have been granted an improvement period. Refuse 5 - 0

42.  In the Matter of: Jaden C., No. 090218 (Filed 2/11/09)

Petitioner appeals the lower court’s decision to continue the disposition hearing in order to give DHHR time to file written notice of their motion to terminate parental rights. Refuse 5 - 0

43.  In the Matter of: Sarah P. and Halle P., No. 090237 (Filed 2/18/09)

Mom appeals the termination of her parental rights. Refuse 5 - 0

44.  In the Matter of: Andrew D.P., No. 090285 (Filed 2/23/09)

Petitioner/Mother appeals the termination of her parental rights, arguing that she was never given a chance to develop a rapport with her child because visitation was discontinued and that the court erred in relying on testimony about Reactive Attachment Disorder. Refuse 5 - 0

45.  In the Matter of: Ashley, Tenslee, & Cameron B., and Kristian L., No. 090315 (Filed 3/2/09)

Petitioner/Mother appeals the termination of her parental rights. Refuse 5 - 0

 


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