United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
W.TRUMBLE UNITED STATES MAGISTRATE JUDGE
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.
Petitioners' Conviction and Sentence
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.
Petitioner's Direct Appeal
did not appeal his criminal case. ECF No. 1-2 at 2.
Petitioner's State Habeas Petitions
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.
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.
Petitioner's Federal Habeas Petition
petition pending before this court, the petitioner raises
seven grounds 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.