Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lind v. Ames

Supreme Court of West Virginia

May 31, 2019

Jonathan Lind, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Kanawha County 16-P-37 and 06-F-299

          MEMORANDUM DECISION

         Petitioner Jonathan Lind, pro se, appeals the September 27, 2017, order of the Circuit Court of Kanawha County denying (1) petitioner's motions to alter or amend the judgment in his third habeas corpus proceeding; and (2) petitioner's motions for reduction of sentence in his underlying criminal case.[1] Respondent Donnie Ames, Mt. Olive Correctional Complex, [2] by counsel Scott E. Johnson, filed a summary response. Petitioner filed a reply.

         The 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 no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On March 31, 2006, petitioner killed Edward Ayers in the victim's home. According to the investigating officer's grand jury testimony, petitioner then stole the victim's credit card and vehicle and went on a shopping spree. On July 26, 2006, the grand jury indicted petitioner on one count of murder, one count of first-degree robbery, and three counts of forgery of a credit card. At trial, petitioner testified that he went to the victim's house to "make some money" by providing sexual favors to the victim. An altercation eventually ensued, and petitioner hit the victim with a claw hammer and then took the victim's wallet, keys, and vehicle. Petitioner testified that he traded the vehicle for crack cocaine the following morning. Petitioner admitted that he used the victim's credit card on two occasions when he was with an "associate." However, petitioner testified that his associate used the credit card on the third occasion after petitioner had given it to him while the two were at the drive-thru at a McDonald's. Also, the circuit court allowed petitioner to testify that the victim had a tendency to get into altercations with other persons. Following jury instructions and closing arguments, the jury convicted petitioner of second-degree murder, first-degree robbery, and three counts of forgery of a credit card. At a June 1, 2007, sentencing hearing, the circuit court rejected petitioner's argument for concurrent sentencing and sentenced him to an aggregate term of 33 to 150 years of incarceration. Petitioner sought review of his convictions and sentence in this Court, which refused his appeal on March 20, 2008.

         Petitioner filed pro se his first petition for a writ of habeas corpus on October 2, 2008. Following a February 18, 2009, evidentiary hearing, the circuit court denied habeas relief on April 17, 2009. On April 20, 2009, the circuit court appointed a new attorney to represent petitioner in his habeas appeal. On April 28, 2009, petitioner filed a notice of appeal regarding the denial of habeas relief. However, no appeal was filed from the circuit court's April 17, 2009, order denying petitioner's first habeas petition.

         On November 17, 2009, petitioner filed pro se a second habeas petition. By order entered on February 5, 2010, the circuit court appointed an attorney to represent petitioner. On October 22, 2010, petitioner's habeas attorney filed an amended petition. The material submitted to the circuit court by petitioner, pro se, and by his attorney in the second habeas proceeding raised various constitutional claims. Some of these claims had been raised and denied in petitioner's first habeas case, and other claims were raised for the first time in the second proceeding. On December 12 and 14, 2012, the circuit court held an evidentiary hearing in the second habeas proceeding. In the interest of allowing petitioner a full and thorough review, the circuit court allowed him to present evidence on all grounds for relief asserted in his amended habeas petition, including those that the circuit court denied in the first habeas proceeding. By order entered on January 9, 2014, the circuit court denied petitioner's second habeas petition. Petitioner appealed the circuit court's January 9, 2014, order. This Court affirmed the denial of habeas relief in Lind v. Ballard ("Lind I"), No. 14-0116, 2015 WL 5125884, at *7 (W.Va. Aug. 31, 2015) (memorandum decision).[3]

         On January 29, 2016, petitioner filed pro se a third habeas petition. By order entered October 26, 2016, the circuit court denied habeas relief without a hearing or appointment of counsel. Petitioner appealed the denial of the third habeas petition in Lind v. Ballard ("Lind II"), No. 16-1033, 2017 WL 4570572 (W.Va. Oct. 13, 2017) (memorandum decision).[4] In Lind II, this Court found that petitioner's second habeas proceeding constituted an omnibus proceeding where he was afforded an opportunity to raise all available issues, explaining that, "by allowing petitioner to re-raise [his] claims in the second habeas proceeding, the circuit court cured the failure of the appellate attorney in the first habeas proceeding to file an appeal in that case." Id. at *4.

         Also, in Lind II, petitioner argued that his attorney in the second proceeding failed (1) to present the testimony of a witness who exercised his right not to incriminate himself regarding an earlier altercation with the victim; (2) to assert that the jury was not properly instructed with regard to the intent to steal, which is necessary to support a conviction for first-degree robbery; (3) to argue that petitioner was denied due process of law when co-counsel was not appointed in his criminal trial; (4) to assert that there was insufficient evidence to support the third conviction for forgery of a credit card; (5) to call petitioner's associate as a witness so that he could be impeached; (6) to assert that the circuit court's June 1, 2007, sentencing order failed to set forth sufficient findings to support petitioner's sentence; and (7) to argue that count two of the indictment, which charged petitioner with first-degree robbery, was defective. Id. However, we found that "all of the grounds petitioner alleges that his second habeas trial attorney failed to raise are without merit and/or were encompassed within the issues fully and finally adjudicated in his appeal in Lind I." Id. at *6. Therefore, we affirmed the circuit court's denial of the third habeas petition. Id. at *7.

         Following the circuit court's October 20, 2016, order denying the third habeas petition, petitioner filed two motions to alter or amend the judgment pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure on December 16, 2016, and February 13, 2017. In the second motion, petitioner stated that it may be necessary for the circuit court "to construe this motion as a motion for relief from judgment" under Rule 60(b). Subsequently, petitioner filed a petition for a writ of mandamus in this Court on August 7, 2017, seeking to compel the circuit court to rule on his motions to alter or amend the judgment as well as two motions for reduction of sentence previously filed in the underlying criminal case. The first motion for reduction of sentence was filed on April 25, 2008, following this Court's refusal of his criminal appeal on March 20, 2008, and the second motion was filed on September 29, 2015, following this Court's affirmation of the denial of petitioner's second habeas petition on August 31, 2015, in Lind I.

         By order entered October 11, 2017, this Court refused petitioner's mandamus petition as moot given the entry of the circuit court's September 27, 2017, order. In that order, the circuit court denied the motions to alter or amend the judgment in petitioner's third habeas proceeding after construing them as Rule 60(b) motions and denied both motions for reduction of sentence in the underlying criminal case. Petitioner now appeals the denial of his motions.

         The circuit court properly denied petitioner's motions to alter or amend the judgment after construing them as Rule 60(b) motions.

         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." We find that neither petitioner's December 16, 2016, motion nor his February 13, 2017, motion was filed within ten days of the entry of the circuit court's October 20, 2016, order denying the third habeas petition.

         "[A] motion served more than ten days after a final judgment is a Rule 60(b) motion [for relief from judgment]." Savage v. Booth, 196 W.Va. 65, 68 n.5, 468 S.E.2d 318, 321 n.5 (1996). In syllabus points three and four of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), we held:

3. An appeal of the denial of a Rule 60(b) motion brings to consideration for review only the order of denial itself and not the substance supporting the underlying ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.