Gregory I. Settle v. Ralph Terry, Acting Warden, 17-0337

Gregory I. Settle was convicted by a jury of daytime burglary and first-degree sexual assault and received consecutive sentences totaling 17–40 years. His direct appeal was refused in 2009.
Settle filed a first habeas petition (filed Sept. 3, 2009), received counsel, had an evidentiary hearing, and the circuit court denied relief on Aug. 19, 2014; this denial was affirmed by this Court in 2015.
Settle filed a second habeas petition on Dec. 30, 2015, alleging ineffective assistance by his first habeas counsel; the circuit court denied that petition by order entered Mar. 22, 2017.
On Mar. 31, 2017, Settle timely filed a Rule 59(e) motion to alter or amend the Mar. 22, 2017 order; the circuit court had not ruled on that motion when Settle appealed to this Court on Apr. 6, 2017.
The West Virginia Supreme Court concluded the Rule 59(e) motion suspended the finality of the circuit court’s order, rendering the appeal unripe; the Court dismissed the appeal without prejudice and remanded for the circuit court to rule on the Rule 59(e) motion.
The Court also denied as moot Settle’s motion for appointment of appellate counsel and determined a previously filed motion to disqualify Judge Bailey related to the first habeas proceeding, not the second.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal is ripe given a pending Rule 59(e) motion	Settle proceeded with appeal and sought appointment of appellate counsel	Respondent noted circuit court order was final	Appeal unripe because Rule 59(e) was timely and pending; appeal dismissed without prejudice
Effect of a timely Rule 59(e) motion on finality	Settle implicitly argued appeal could proceed	Court (respondent) relied on finality rule requiring circuit court disposition	Timely Rule 59(e) suspends finality; jurisdiction lacking until disposition
Appointment of appellate counsel	Requested appointment on appeal	Respondent opposed or did not dispute procedure	Motion denied as moot after dismissal of appeal
Disqualification motion status	Settle asserted motion to disqualify Judge Bailey was pending	Respondent indicated timing showed it pertained to prior habeas case	Court held the disqualification motion belonged to the first habeas proceeding and was not pending in the second

State ex rel. Parsons v. Zakaib, 207 W.Va. 385, 532 S.E.2d 654 (2000) (Civil Rules apply to habeas proceedings unless inconsistent)
James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995) (Timely Rule 59(e) suspends finality; Court must determine its jurisdiction)
McGraw v. American Tobacco Co., 224 W.Va. 211, 681 S.E.2d 96 (2009) (Reiteration that finality rule is mandatory and jurisdictional)