United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
November 3, 2016, Petitioner, a state prisoner currently
incarcerated at Pruntytown Correctional Center
(“PRC”) in Grafton, West Virginia, filed a
pro se petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254. ECF No. 1. On July 6, 2017, he was
granted permission to proceed as a pauper. ECF No. 10. By
Order entered July 6, 2017, Respondent was directed to show
cause why the petition should not be granted. ECF No. 11. On
August 3, 2017, Respondent filed a Motion for Judgment on the
Pleadings. ECF No. 16. On September 11, 2017, a
Roseboro Notice was issued. ECF No. 20. To date,
Petitioner has not filed a response.
State Court Proceedings
Hancock County Conviction and Sentence
September 11, 2013, Petitioner was indicted by a Hancock
County Grand Jury on two counts of gross child neglect
resulting in substantial risk of injury, in violation of West
Virginia Code §61-8D-4(e). ECF No. 16-1. On November 13,
2014, the morning of trial, Petitioner entered a guilty plea
with respect to both counts of the indictment. ECF No. 16-2.
Petitioner “indicated at that time that he wished to go
forward with his pleas after fully discussing the matter with
his counsel on two (2) separate occasions this morning, in
addition to prior occasions….” Id. at
2. Finding that a factual basis did exist for an adjudication
of guilt, the court accepted Petitioner's guilty plea to
both counts of the indictment. Id. at 4. On January
12, 2015, Petitioner moved to withdraw his plea because he
had not been notified of the requirement that he had to
register as a child abuser. ECF No. 16-3 at 2.
March 9, 2015, Petitioner indicated to the court that he
wished to reenter his previous plea agreement. ECF No. 16-5.
Petitioner acknowledged that his previous withdrawal
“was related solely to the requirements of registration
under the Child Abuse Offender Act, and [he] fully understood
his obligations in that regard.” Id. at 2. The
court once again accepted Petitioner's plea of guilty as
to both counts contained in the indictment. Id. at
3. On March 30, 2015, petitioner was sentenced to two terms
of not less than one year, nor more than five years in the
state penitentiary. ECF No. 16-6 at 3. The court then
suspended the sentence and placed Petitioner on five years of
supervised probation. Id. Petitioner was also placed
on a ten year period of child abuse supervision as required
by the plea. Id. at 4. “The [c]ourt noted that
any violation of any rule or probation would be viewed quite
harshly by this [c]ourt.” Id. at 3-4.
9, 2015, the State filed a Petition for Revocation of
Probation. ECF No. 16-7. As grounds for revocation, it was
alleged that Petitioner tested positive for methadone
metabolite, methadone, and morphine in violation of the terms
of his probation. Id. at 3. Petitioner failed to
appear at the corresponding hearing. ECF No. 16-8. The
Probation Officer further noted that Petitioner had failed to
report on the date set for that month. Id.
Accordingly, the court issued a Habeas Warrant for
Petitioner's arrest. Id. Over a year later, on
June 22, 2016, an Amended Petition for Revocation of
Probation was filed. ECF No. 9. In addition to the previous
violation, the petition alleged that Petitioner was arrested
on June 18, 2016, for failure to appear in court and that he
had “absconded from probation” because he failed
to report to his probation officer for over a year.
Id. at 3.
court held a hearing on the Amended Petition on July 20,
2016. ECF No. 10. The State “presented the sworn
testimony and evidence of its witnesses.” Id.
The court found that Petitioner was “in clear violation
of the terms and conditions of his probation” by a
clear preponderance of the evidence. Id. at 3. The
court, finding this to be a “significant violation,
” revoked his probation and ordered the reinstatement
of his previous sentence. Id.
did not file a direct appeal from his original sentence and
conviction. However, on February 14, 2017, approximately
seven months after the Circuit Court revoked his probation
and reinstated his original sentence, Petitioner filed a
notice of appeal with the West Virginia Supreme Court of
Appeals of West Virginia (“WVSCA”). On March 22,
2017, the WVSCA notified Petitioner that the order he was
appealing was not a “final order for purposes of
appeal” and therefore, did not docket the appeal. ECF
Marshall County/Hancock County Habeas
August 16, 2016, Petitioner filed a pro se
Petition for Writ of Habeas Corpus in the Circuit Court of
Marshall County, West Virginia. ECF No. 16-13. Petitioner
appears to have raised four grounds in his petition: 1)
conviction obtained by plea of guilty which was not made
voluntarily; 2) the State's knowing use of perjured
testimony; 3) Fourth Amendment violation; and 4) denial of
effective assistance of counsel. Id. On August 17,
2016, the State filed a Motion for Transfer of Venue of
Petition for Writ of Habeas Corpus. ECF No. 16-14. The State
argued that Hancock County was the appropriate venue for this
matter because Petitioner's allegations related to his
conviction and/or sentencing, and the appropriate venue is
the county in which he was tried and convicted. Id.
The circuit court agreed and transferred venue to Hancock
County. ECF No. 16-15. On August 30, 2016 the matter was
officially transferred. ECF No. 16-16. On April 17, 2017,
upon review of the petition, the Circuit Court of Hancock
County summarily dismissed the petition without prejudice as
the petition was factually inadequate. Id.
Writ of Habeas ...