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Peters v. Williamson

United States District Court, N.D. West Virginia

April 20, 2018

RICHARD WAYNE PETERS, Petitioner,
v.
MARK WILLIAMSON, Warden, Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W.TRUMBLE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On May 1, 2017, the pro se petitioner filed a Petition pursuant to 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. ECF No. 1. At the time this matter was filed, Petitioner was a State inmate housed at Huttonsville Correctional Center in Huttonsville, West Virginia. The West Virginia Division of Corrections confirms that Petitioner was released from custody on May 8, 2017. The docket sheet reflects that Petitioner's current mailing address is 173 Whispering Pines, Alum Creek, West Virginia, which appears to be a private residence. The West Virginia State Police confirm that on March 15, 2018, Petitioner registered as a sexual offender living at this address. This matter is pending before the undersigned for an initial review and Report and Recommendation pursuant to 28 U.S.C. § 636 and Locai Rule of Prisoner Litigation Part 2.

         II. Procedural History

         A. Petitioners' Conviction and Sentence

         In October of 2012, Petitioner, who was then 62 years old, was indicted in Berkeley County, West Virginia, Circuit Court for three counts of first degree sexual abuse pursuant to West Virginia Code § 61-8B-7, for inappropriately touching the 10 year old granddaughter of his late girlfriend. ECF No. 1-2 at 1. Pursuant to a plea agreement, Petitioner entered a plea of no contest to two counts of first degree sexual abuse and was sentenced to two terms of one to five years of incarceration, to be served consecutively, id The third count was dismissed. Id. On March 18, 2013, the Circuit Court sentenced Petitioner consistent with his plea agreement, Id. Petitioner was also required to register as a sexual offender for life and to serve two years of supervised release after his release from incarceration. See Exhibit 1 attached hereto at 2.

         B. Petitioner's Direct Appeal

         Petitioner did not appeal his criminal case. ECF No. 1-2 at 2.

         C. Petitioner's State Habeas Petitions

         On September 19, 2013, Petitioner filed a pro se petition for habeas corpus with the Circuit Court of Berkeley County, in case number 13-C-670, alleging ineffective assistance of counsel, and that he was coerced into a plea by his counsel. ECF No. 1-2 at 2. Counsel appointed by the circuit court filed a motion to withdraw pursuant to Anders v. California. 386 U.S. 738 (1967). Id. Petitioner filed a response on March 21, 2014. Id. On April 14, 2014, the circuit court granted counsel's motion to withdraw and dismissed the petition for habeas corpus, Id. Petitioner appealed the denial to the West Virginia Supreme Court of Appeals, which by memorandum decision issued on April 15, 2015, affirmed the circuit court's order dismissing the petition for habeas corpus. Id. at 4.

         On March 20, 2015, Petitioner filed a second petition for habeas corpus in the Circuit Court of Berkeley County, in case number 15-C-177. ECF No. 1-3. By order entered June 16, 2015, the Circuit Court summarily dismissed the second petition. Id.

         D. Petitioner's Federal Habeas Petition

         In his petition pending before this court, the petitioner raises seven grounds[1] for relief: (1) ineffective assistance of counsel at trial and during his second habeas corpus petition; (2) that there was a "question of guilt upon acceptance of guilty plea"; (3) that his plea was involuntary; (4) that there was an insufficiency of evidence; (5) that his sentence was excessive; (6) that his bond was excessive; and (7) that there was newly discovered and "potentially exculpatory evidence and impeachment evidence". ECF Nos. 1 at 8, 10, 12, 1-1. As relief, Petitioner seeks an order directing the Berkeley County Circuit Court to allow him to withdraw his plea, set a trial date, and appoint counsel. ECF No. 1 at 19.

         111. ...


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