Gregory I. Settle, Petitioner Below, Petitioner
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent
Gregory I. Settle, pro se, appeals the March 22, 2016, order
of the Circuit Court of Kanawha County denying his petition
for a writ of habeas corpus. Respondent Ralph Terry, Acting
Warden, Mt. Olive Correctional Complex,  by counsel Gordon
L. Mowen, II, filed a response in support of the circuit
court's order. Petitioner filed a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds that there is no final appealable order in
this case. For these reasons, a memorandum decision
dismissing the appeal without prejudice and remanding this
case to the circuit court for further proceedings is
appropriate under Rule 21 of the Rules of Appellate
a jury verdict finding petitioner guilty of one count of
daytime burglary and one count of first-degree sexual
assault, the circuit court sentenced him to a term of
incarceration of two to fifteen years for the burglary
conviction and a term of incarceration of fifteen to
twenty-five years for the sexual assault conviction. The
circuit court ordered that petitioner serve his sentences
consecutively. Petitioner sought review of his convictions,
but this Court refused his appeal by order entered on April
September 3, 2009, petitioner, pro se, filed a petition for a
writ of habeas corpus. The circuit court appointed counsel
for petitioner and then held an evidentiary hearing on May
12, 2014. Following that hearing, the circuit court denied
the habeas petition by order entered on August 19, 2014.
Petitioner appealed the circuit court's August 19, 2014,
order. In Settle v. Ballard, No. 14-0907, 2015 WL
5086766 (W.Va. August 28, 2015) (memorandum decision), this
Court affirmed the denial of habeas relief.
December 30, 2015, petitioner, pro se, filed a second habeas
petition alleging that his attorney in the first habeas
proceeding was ineffective. The circuit court denied the
second petition by order entered on March 22, 2017. On March
31, 2017, petitioner filed a motion pursuant to Rule 59(e) of
the West Virginia Rules of Civil Procedure requesting that
the circuit court alter or amend its March 22, 2017, order.
Petitioner also filed an appeal from the circuit court's
March 22, 2017, order on April 6, 2017, along with a motion
for appointment of appellate counsel. By scheduling order
entered on April 21, 2017, this Court ruled that the motion
for appointment of appellate counsel would be considered with
the merits of petitioner's appeal.
of the West Virginia Rules Governing Habeas Corpus
Proceedings ("habeas rules") provides that the West
Virginia Rules of Civil Procedure apply to habeas proceedings
"to the extent that they are not inconsistent with [the
habeas] rules." See also State ex rel. Parsons v.
Zakaib, 207 W.Va. 385, 389, 532 S.E.2d 654, 658 (2000)
(same). Rule 59(e) provides that a "motion to alter or
amend the judgment shall be filed not later than 10 days
after entry of the judgment." A timely-filed motion to
alter or amend judgment "suspends the finality of the
judgment and makes the judgment unripe for appeal." Syl.
Pt. 7, in part, James M.B. v. Carolyn M., 193 W.Va.
289, 456 S.E.2d 16 (1995). In James M.B., we found
that, with rare exceptions not pertinent here, "the
'finality rule' is mandatory and
jurisdictional." 193 W.Va. at 292, 456 S.E.2d at 19;
see also McGraw v. American Tobacco Co., 224 W.Va.
211, 219-20, 681 S.E.2d 96, 104-05 (2009) (same).
appeal, neither party addresses the pendency of
petitioner's Rule 59(e) motion. However, in syllabus
point 2 of James M.B., we held that "this Court
has the inherent power and duty to determine unilaterally its
authority to hear a particular case" and that
"[p]arties cannot confer jurisdiction on this Court
directly or indirectly where it is otherwise lacking."
193 W.Va. at 291, 456 S.E.2d at 18. Upon our review of the
record herein, we find that petitioner's Rule 59(e)
motion to alter or amend the March 22, 2017, order was timely
filed on March 31, 2017, and the circuit court has yet to
rule on it. Therefore, we conclude that the finality of the
circuit court's March 22, 2017, order is currently
suspended making it unripe for appeal. Accordingly, we
dismiss petitioner's appeal without prejudice and remand
this case so that the circuit court can rule on his motion to
alter or amend its March 22, 2017, order.
Without Prejudice, and Remanded.
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis
E. Ketchum, Justice Elizabeth D. Walker
Since the filing of the petition in
this case, the warden at Mount Olive Correctional Complex has
changed and the acting warden is now Ralph Terry. The Court
has made the necessary substitution of parties pursuant to
Rule 41(c) of the West Virginia Rules of Appellate
Petitioner contends that his motion for
the disqualification of The Honorable Jennifer F. Bailey is
also pending in his second habeas proceeding. We disagree.
Petitioner filed the motion for disqualification on October
3, 2015, nearly three months before the initiation of his
second habeas proceeding on December 30, 2015. Accordingly,