William Nesbitt v. Shannon Markle, Administrator (Memorandum Decision)

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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED William Nesbitt, Petitioner Below, Petitioner February 13, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 11-0829 (Gilmer County 11-C-5) Shannon Markle, Administrator, Respondent Below, Respondent MEMORANDUM DECISION Petitioner William Nesbitt appeals the circuit court order denying his habeas corpus petition wherein he argued against extradition to Alabama. This appeal was timely perfected by counsel, with petitioner s appendix accompanying the petition. The State has filed its response. This Court has considered the parties briefs and the appendix on appeal. The facts and legal arguments are adequately presented in the parties written briefs and the appendix on appeal, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the appendix presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules. On appeal, petitioner argues the same assignments of error in support of habeas relief that he argued before the circuit court. Specifically, he argues that the circuit court erred in determining that the warrant issued was supported by sufficient information; that the original warrant was sufficient on its face; that the original warrant issued by Alabama was valid; that the information provided by Alabama established petitioner did in fact violate his parole; and that the court had no jurisdiction. The State responds, arguing that the warrant was supported by sufficient information, including an affidavit from a Gilmer County Deputy Sheriff. The State also argues that the warrant was sufficient on its face, as probable cause is not required to authorize extradition, and the warrant was authorized by the Alabama State Pardons and Paroles Board. Furthermore, the State argues that the original Alabama warrant was valid, because although an accompanying letter indicated that the warrant should be returned if not executed within 1 sixty days, nothing on the face of the warrant invalidated said warrant if it was not executed within the sixty day time period. Finally, the State argues that petitioner failed to meet his burden in showing that he did not violate his parole, as he failed to show that Alabama did not have probable cause to find such parole violation. The State argues that the circuit court did not err in denying habeas relief. As to the first four assignments of error, this Court notes that petitioner argued these same grounds before the circuit court. Upon a review of the arguments and record on appeal, we conclude that the circuit court s order is not contrary to law or written policy, clearly wrong, arbitrary or capricious, or characterized by an abuse of discretion. We attach and incorporate by reference the circuit court s well-reasoned Order Denying Habeas Corpus Petition entered on April 15, 2011. As to the final assignment of error, wherein petitioner argues that the circuit court erred by finding that it had no jurisdiction, petitioner requests that this Court adopt a special circumstances doctrine akin to the federal courts. Petitioner argues that it is unfair to send him back to Alabama because his sentences in Alabama are illegal and not in conformity with the sentencing statues, and he has no relief, as he has previously exhausted his state court remedies. If this Court chooses not to enact a special circumstances doctrine, petitioner argues that he will be extradited to Alabama to serve an illegal sentence. The State responds to this argument, stating that no such special circumstances exception exists, and that a West Virginia court cannot interpret Alabama state law nor invalidate a sentence imposed by the State of Alabama. Further, this type of review is not allowed in a habeas corpus proceeding relating to extradition. This Court has stated: In habeas corpus proceedings instituted to determine the validity of custody where petitioners are being held in connection with extradition proceedings, the asylum state is limited to considering whether the extradition papers are in proper form; whether there is a criminal charge pending in the demanding state; whether the petitioner was present in the demanding state at the time the criminal offense was committed; and whether the petitioner is the person named in the extradition papers. Syl. Pt. 2, State ex rel. Mitchell v. Allen, 155 W.Va. 530, 185 S.E.2d 355 (1971). Petitioner has previously appealed his convictions in Alabama and has been unsuccessful. Further review of the Alabama sentences is not allowed in a West Virginia habeas corpus proceeding, and this Court declines to adopt a special circumstances doctrine under the facts of this case. 2 For the foregoing reasons, we affirm. Affirmed. ISSUED: February 13, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 3 .. 'Ii ... ¢ p IN THE CIRCUIT COURT OF GILMER COUNTY, g"'" r1 JEdi' Vi1~GINIA 2011 APR 19 A~I 9\: 08 t-;(.l,RGI ELi\1Hi WILLIAM NESBITT, ... Petltloner, eiRe !\.£. Cl ,_1,1tr' liT F~.· G!lJ·1ER CO:.1HTY,WV v. Case No.: ll-C-S\ Honorable Judge J ~ck Alsop 1.. .. SHANNON MARKLE, Administrator, Central Regional Jail, Respondelit. ORDER DENYING HABEAS CORPUS PETITION This matter came before this Court on the Petition for habeas COl])llS relief filed by Christina C. Flanigan on February 14, 2011, challenging Petitioner's extraditi\on to the State of Alabama. On the 1i h day of February, 2011, Genild B. Hough, Prosecuting 1ttomey of Gilmer County, West Virginia; on behalf ofthe Respondent, filed a Response to the Petition for Habeas Corpus. Upon the conclusion of all preliminary matters, atl. Evidentiary \ HeaI'in~ was held before this COUli on 3rd day of March, 2011, as to Petitioner's extradition. The petitroner appeared in person and with his counsel, Christina Flanigan, and the Respondent, State of West Virginia, appeared, by and through her counsel, Gerald B. Hough, Prosecuting Attomey df Gilmer County, I West Virginia. After carefully considering the evidence, the argumentspresentrd by each party, the parties' briefs, and pertinent legal authority, the Court has concluded petitirner has failed to establish a basis for the relief requested in his Habeas Petition. The findings and conclusions for this decision are set fOl1h below. 1. FINDINGS OF FACT 1. The Court takes judicial notice of all proceedings and the record in the underlying case, to wit: 1O-P-40. 2. The Circuit Court of Gilmer County, West Virginia, has propel jurisdiction in this matter pursuant to W.Va. Code §5-1-7 -13 et. seq. 3. The Petitioner was being detained at the Federal COlTectional Facility in Gilmer County, West Virginia, pursuant to his convictions for violations of federal law. I 4. The State of Alabama placed a detainer upon the Petitioner and upon his discharge from federal custody, the State authorities in Gilmer County, West Virginia, were notified. 5. Petitioner was arrested on the 9th day of September, 2010, '11 Gilmer County, West Virginia, pursuant to a Fugitive from Justice Warrant issued by a ma istrate for Gilmer County, West Virginia, upon written affidavit of a law enforcement officer. 6. Petitioner appeared before the Circuit Court of Gilmer County, West Virginia, on I September 13, 2010, for arraiglIDlent upon the Fugitive from Justice Warrant. During the arraignment, Petitionerrefusedto waive extradition. The Court then ordered teState to proceed with the statutory procedure for obtaining a governor's warrant. 7. On the 13th day of December, 2010, a Status Hearing was held nd counsel for the Petitioner received a copy of a wanant, dated the 21 st day of October, from tl e Governor of the State of West Virginia, issued upon the request of the Governor of Alabama. 8. This Habeas Corpus Petition was filed on the 1i challenging the Petitioner's extradition. 2 h I day ot February, 2011, '" . 9. The Petitioner assel1s that he should be returned to tile State o~ Alabama, alleging that his life sentence in the State of Alabama, lU1der their recidivist sent~nce, is an illegal sentence. 10. The Petitioner ackriowledges that he has previously challengeQ the validity of the ! State of Alabama's conviction and sentence, in the state courts of Alabama, 11d such challenges were fully adjudicated and Petitioner was lU1successful in such challenges. , i 11. This COUli is without jurisdiction to detenhine the validity of the Alabama conviction. II. LEGAL AUTHORITY' In extradition habeas corpils claims, guilt or innocence of the underlying crime in the I demanding state is irrelevant and is not a matter open to inquiry in habeas C!' rpus proceedings. Lott v. Bechtold, 1.69 W.Va. 578, 289 S.E. 210 (1982). Extradition provids that any person i charged with a crime in one state and found in another and who is a fugitive from justice should be returned by the State in which he is found to the state where be is charged itil the crime to be either tried, or if already tried and convicted, to complete the serving of his septence. Article IV § 2, United Stat~s Constitution. A per~on may only be extradited as a [Ugitiv, from justice if he or she falls wlth111 one of the five reqUIrements as set f01ih 111 W.Va. Code § 5':1-7. The relevant provisions regarding extradition in this case includ~ Petitioner is convicted tf a felony in the demanding state and h;:1.8 broken the tenus of bail, probation, or parole. If, Therefore, the Petitioner is eligible for extradition under W. Va. Code §5-1-7. However, Petitioner has the constitutional right to contest extradition and in such case n\ay procure counsej and file a habeas 3 i corpus petition alleging the reasons he or she should not be retmned to thr' demanding state. Petitioner has filed such a petition in this case. . ' In habeas corpus proceedings, the asylum state is limited in its inquiry to: (1) whether the extradition papers are in proper foml; (2) whether there is a criminal chJrge pending in the l demanding state; (3) whether the Petitioner was present in the demanding stat at the time of the criminal offense was committed; and (4) whether the Petitioner is the pe1lson named in the extradition papers. Syl. PI. 2, State ex. reI. Mitchell v. Allen, 155 W.Va. 53t, 185 S.E. 2d 355 (1971), cert. denied, 406 U.S 946, 92 S. Ct. 2048, 32 L.Ed.2d 333 (1972). In this case, Petitioner alleges grounds that fall within the above categories. Accordingly, this Court proceeded to consider the merits of the blaims alleged Petitioner's Petition for Writ of Habeas Corpus. 111 I III. DISCUSSION . PETITIONER'S GROUNDS FOR RELIEF I . The Petitioner raises two main issues, set forth as six separate grouqds, in his writ of habeas corpus: 1) the extradition papers are not in proper fonn; and 2) there tas not a criminal charge pending in Alabama, the demanding state. Petitioner advances these! arglll11ents under both the United States Constitution and the West Virginia Constitution. TIns four! will address each of these issues, and any sub-issues that may arise, in tum. A. EXTRADITION PAPERS NOT IN PROPER FO~ Petitioner alleges three grounds in which the extradition papers were ntt in proper form. These allegations can be reviewed by this Court as this issue is one which the l asyhll11 state can review. Syl. Pt. 2, State ex. reI. Mitchell v. Allen, 155 W.Va. 530, 185 S.E. 2dl355 (1971), cert. 4 denied, 406 U.S 946, 92 S. Ct. 2048, 32 L.Ed.2d 333 (1972). The C· lui finds each of Petitioner's allegations to be without merit and will address each grolmd for rdliefbelow. Ground One: Insufficient Affidavit Petitioner contends there was no information supported either by the affidavit from the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate or justice in the asylum state that would have been sufficient for the issuance bf a wanant. The record reflects that Carol Wolfe, Magistrate for Gilmer County, West Virgi11ia, did sign on the 3rd day of August, 2010, a Wan-ant for An-est for Petitioner upon the Writtelj affidavit of Larry Gerwig, Chief Deputy Sheriff of Gilmer County, West Virginia. On that sruhe date Magistrate I Wolfe also signified that the infonnation provided was sufficient to issue stich wan-ant. After reviewing the record the COUli finds the information provided was sufficient to issue a warrant As such, Petitioner's ru'gument with regard to Grolmd One"fails. Ground Two: InsufficientWarrant I Petitioner alleges the original Fugitive from Justice Wan-ant fi'om fl~bruna was not issued by a magistrate and therefore was not valid. Petitioner further alleges the Department of . i Con-ections cannot issue a wruTant Ullless directed to do so by the Board of Pardons and Paroles, and in this case the Board of Pardons and Paroles did not request the wruTan! for Petitioner be issued. After reviewing the record, it apperu's Petitioner is correct in that a .1agistrate did not 5 issue the Fugitive Wan-ant against Petitioner in the state of Alabama. Th Fugitive Warrant issued in the state of Alabama was done so by the Commissioner of the Alab ma Department of Corrections. This Court finds no authority which states that in Alabama, the Commissioner does I not have the authority to execute said -warrant. Therefore, Petitioner's dain1 that the Fugitive Warrant is not valid because it was not issued by a magistrate is withouf1)1erit . Further, Petitioner claims that the Depaliment of C01~'ections can ~nll. issue a warrant if dIrected to so by the Board of Pardons and Paroles and that dId not occur 111 ttlS case. However, the record indicates, pursuant to tl~e Fugitive Wal1'ant dated August 6, 2004, issued by the State I of Alabama, that "On the 4th day of Aug, 2004, the State Pardons and Par6les Board, having reasonable cause to believe that said prisoner has lapsed, or is about to lapse, iinto criminal ways or company or has violated conditions of his parole in an important respect, 0 'clered said parolee arrested and returned to the confine of the penitentiary to appear before teState Board of Pardons and Paroles who will determine the parole status of said parolee." Therefore, the State , Board of Pardons and Paroles did request the Department of , Correction~ issue a Fugitive Warrant for Petitioner and Petitioner's argument is without merit. . Accordingly, this Comi finds Petitioner's argument lacks ally m rit as the record indicates the original Fugitive Wan-ant issued by Alabama is sufficient on 'ts face. As such Petitioner's argument as to Ground Two fails. Ground Three: Invalid Warrant Petitioner claims that the original wan'ant issued 011 the 6th day of Au· st, 2004, was no longer valid at the time he was arrested in West Virginia because the warrant tated that if it was not executed within sixty (60) days, it was to be returned. After reviewing th Fugitive Warrant fro111 Alabama, dated August 6, 2004, this Court finds Petitioner's argument t¢} be without merit 6 as the Wan-ant does not state there is a sixty (60) day limitation. Accor ingly, Petitioner's argument with regard to Ground Tln'ee fails. B. CRIMINAL CHARGE PENDING IN THE DEMANDIN STATE Petitioner alleges one ground in which the demanding state failed to rove that there was a criminal charge pending in that state. This allegation can be reviewed b this Court as this issue is one which the asylum state can review. Syl. Pt. 2, State ex. rel. Mi.chell v. Allen, 155 W.Va. 530, 185 S.E. 2d 355 (1971), cert. denied, 406 U.S 946, 92 S. Ct. 20 8,32 L.Ed.2d 333 (1972). The Court finds Petitioner's allegation to be without merit and will a dress this below. Ground One: Failure to Establish a Parole Violation Petitioner claims the infonnation provided by the State of Alabama failed to establish probable cause that the Petitioner violated parole. The Court finds this argu 11ent to be without merit as the Fugitive Wan-ant specifically states Petitioner violated parole and was to appear before the Alabama Board of Pardons and Paroles. Fm1her, the accused ca Ties the burden of proving his absence from the demanding state at the time the alleged offense was committed by clear and convincing evidence. Lott v. Bechtold, 169 W.Va. 578, 289 S.E. 210 (1982). Petitioner advances no informatiOIi on the record to indicate that Alabama di not have probable cause to establish he violated his parole. Fm1her, the record reflects a Govemor's warrant was issued in P titioner's case on October 21, 2010. The record shows that the State of Alabama provided a opy of Petitioner's criminal record from the State of Alabama in conjunction with its request or the Govemor's Warrant from the State of West Virginia, and that information established P titioner did in fact violate his parole. 7 Accordingly this Court finds the State of Alabama provided sufficie~t evidence to show Petitioner did in fact violate his parole. As such, Petitioner's argument as to round One fails. C. IMPROPERLY RAISED ISSUES In Paragrap~s 8 and 9 of Petitioner's Writ of Habeas Corpus, Petitioner alleges extradition to the State of Alabama should be denied ashe was improp fly sentenced and therefore is being improperly detained. However, as previously stated, 'In habeas corpus proceedings, the asylum state is limited in its inquiry to: (1) whether the extra ition papers are in proper form; (2) whether there is a criminal charge pending in the demanding state; (3) whether I the Petitioner was prc;sent in the demanding state at the' time of the criI1l1inal offense was committed; and (4) whether the Petitioner is the person named :in the extrad' ion papers." Syl. Pt. 2, State ex. reI. Mitchell v. Allen, 155 W.Va. 530, 185 S.E. 2d 355 (1971 , cert. denied, 406 U.S 946, 92 S. Ct. 2048, 32 L.Ed.2d 333 (1972). Guilt or innocence of the uhderlying crime in I the demanding state is irrelevant and is not .a matter open to inquiry in habeas corpus proceedings. Lott v. Bechtold, 169 W.Va. 578,289 S.E. 210 (1982). Accordingly, this Court has no jUlisdiction with regard to these issues. IV. CONCLUSION It is therefore ADJUDGED and ORDERED that the Fugitive Wa fant issued by the State of Alabama for Petitioner is valid, and that Petitioner is to be extradi d to the State of . Alabama. n is fUliher ADJUDGED and ORDERED that this matter will be sta~ed for a period of . I ten (10) days to give Petitioner the 0ppOliunity to seek further stay, and if fUliher stay is not 8 ., granted, then the Petitioner shall be extradited to the State of Alabama and t1 e State of Alabama shall have twenty (20) days to appear and take custody of the Petitioner; t1ereafter this matter will be dismissed and stricken from the active docket of this Court. The Petitioner's objections and exceptions are noted. The Clerk of this Court shall send celiified copies of this Order to Enter this rI) day of April, 2011. 9 COll 1sel of record.

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