STATE of West Virginia ex rel. Clyde H. RICHEY, Petitioner, v. Colonel Howard E. HILL, Jr., and Mike Clifford, Prosecuting Attorney for Kanawha County, Respondents.
No. 31676.
Supreme Court of Appeals of West Virginia.
Submitted March 30, 2004. Decided May 27, 2004. Concurring Opinion of Chief Justice Maynard July 6, 2004.
603 S.E.2d 177
DAVIS, J.
See also 171 W.Va. 342, 298 S.E.2d 879.
Kelly D. Ambrose, Assistant Attorney General, Chief Legal Counsel, South Charleston, for Respondent Hill.
Mike Clifford, Prosecuting Attorney, Mary Beth Kershner, Assistant Prosecuting Attorney, Robert William Schulenberg, III, Assistant Prosecuting Attorney, Charleston, for Respondent Clifford.
DAVIS, J.
Clyde H. Richey (hereinafter “Mr. Richey“) seeks an original jurisdiction writ of mandamus directing Colonel Howard E. Hill, Jr., Superintendent of the West Virginia State Police, and Mike Clifford, Prosecuting Attorney for Kanawha County, West Virginia (hereinafter “Colonel Hill” or “Mr. Clifford“), to either conduct DNA tests on certain evidence used in Mr. Richey‘s 1979 trial for third-degree sexual assault or to release such evidence so that he can arrange his own testing. Having reviewed the petition and supporting memorandum, Colonel Hill‘s and Mr. Clifford‘s responses and exhibits, and pertinent records, we find mandamus does not lie and therefore deny the petition.
I.
FACTUAL AND PROCEDURAL HISTORY
A jury convicted Mr. Richey in 1979 on one count of third-degree sexual assault for having had anal intercourse with a fourteen year-old boy in a motel in Charleston, West Virginia. At the time of the assault, Mr. Richey was in the House of Delegates. His victim was a legislative page whom Mr. Richey knew through the Big Brothers program. Mr. Richey arranged for the victim to accom-pany him from Morgantown and to stay with
At trial, the State introduced three pairs of the victim‘s underwear.1 State Police Serologist Fred Zain subjected one pair of the underwear to an unauthorized acid phosphate test (a test which determines if semen is present), but apparently obtained no test results. State Police Serologist Robert Murphy performed other testing on all three pairs of the underwear, which found semen on two of them. However, there was insufficient semen to determine the blood type of the semen.2
After conviction, Mr. Richey filed a number of habeas petitions culminating in a habeas proceeding held before Judge A. Andrew MacQueen of the Circuit Court of Kanawha County.3 This proceeding included a claim under In re West Virginia State Police Crime Laboratory, 190 W.Va. 321, 438 S.E.2d 501 (1993) (hereinafter ”Zain I“).4 Judge MacQueen dismissed the Zain I claim on April 23, 1996, and the remaining claims on December 2, 1996. We refused a petition for appeal.
After we refused Mr. Richey‘s habeas appeal, he filed a coram nobis petition, a
In 2002, Mr. Richey filed with the Circuit Court of Kanawha County, Judge Louis H. Bloom, a motion for DNA testing that Judge Bloom found was “nearly identical” to the one Mr. Richey filed before Judge Scott.6 While this motion was pending, Mr. Richey filed an original jurisdiction habeas corpus petition in this Court seeking DNA testing, which we refused. On November 26, 2002, Judge Bloom denied the motion for DNA testing finding that it was nearly identical to
II.
STANDARD FOR ISSUANCE OF WRIT OF MANDAMUS
We have explained that “““[m]andamus lies to require the discharge by a public officer of a nondiscretionary duty.” Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479, 153 S.E.2d 284 (1967).’ Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969).” Syl. pt. 1, State ex rel. Williams v. Department of Mil. Aff., 212 W.Va. 407, 573 S.E.2d 1 (2002). “To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy.” Syl. pt. 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981). As “the burden of proof as to all the elements necessary to obtain mandamus is upon the party seeking the relief[,]” 52 Am. Jur. 2d Mandamus § 3 at 271 (2000) (footnote omitted), a failure to meet any one of them is fatal. With these factors in mind, we turn to the parties’ contentions.
III.
DISCUSSION
Mr. Richey claims that DNA testing will prove his innocence. He further asserts that he has a clear legal right to exculpatory evidence and that the Respondents have a corresponding duty to provide him such evidence. He also summarily claims that “without this Honorable Court‘s involvement he is not likely to ever obtain what he needs.”
The Respondents counter that they are not the custodians of the evidence and do not know if the evidence Mr. Richey seeks still exists. They also respond that Mr. Richey does not have a clear legal right to a mandamus because he has previously sought the same relief he now seeks before this Court and was unsuccessful. Consequently, he is barred by res judicata from proceeding in this action. We find that Mr. Richey has not shouldered his “heavy” burden of showing a right to mandamus. 52 Am. Jur. 2d Mandamus § 3 at 272 (2000) (footnote omitted).
A. DNA Testing Is Not a Clear Legal Right and a Mandamus Cannot Be Used to Create Such a Right.
“We have characterized the purpose of the writ [of mandamus] as the enforcement of an established right and the enforcement of a corresponding imperative duty created or imposed by law.” State ex rel. Ball v. Cummings, 208 W.Va. 393, 398, 540 S.E.2d 917, 922 (1999). Because mandamus enforces only an established right, “[p]etitioners in mandamus must have a clear legal right to the relief sought therein and such right cannot be established in the proceeding itself.” Syl. pt. 1, State ex rel. Kucera v. Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
Mr. Richey directs us to no authority mandating the State conduct, or allow to be conducted, DNA testing when the petitioner is not incarcerated. Rather, he directs us to Zain I where we required inmates seeking relief due to Fred Zain‘s involvement in their trials to consent to DNA testing. 190 W.Va. at 327, 438 S.E.2d at 507. Our concern in Zain I revolved around those who were still incarcerated and not those who had already been released or who had never been incarcerated. We specifically provided in Zain I, “we will direct the Clerk of this Court to prepare and cause to be distributed to the Division of Corrections an appropriate post-conviction habeas corpus form.” Id. at 327, 438 S.E.2d at 507 (emphasis added). Our concern in Zain I for those still incarcerated flowed, at least in part, from the jurisdictional requirement that habeas lies only for one “convicted of a crime and incarcerated under sentence of imprisonment therefore[.]”
B. No Clear Legal Right Because of Res Judicata
In their responses, both Colonel Hill and Mr. Clifford claim that Mr. Richey lacks a clear legal right to the relief he seeks because his claim is barred by res judicata. We have explained res judicata as follows:
““An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.” Point 1, Syllabus, Sayre‘s Adm‘r v. Harpold, 33 W.Va. 553, 11 S.E. 16 (1890).’ Syl. Pt. 1, In re McIntosh‘s Estate, 144 W.Va. 583, 109 S.E.2d 153 (1959).” Syllabus point 1, State ex rel. West Virginia Department of Health & Human Resources v. Cline, 185 W.Va. 318, 406 S.E.2d 749 (1991) (per curiam).
Syl. pt. 1, State ex rel. West Virginia Dep‘t of Health & Hum. Res. v. Cline, 185 W.Va. 318, 406 S.E.2d 749 (1991) (per curiam). Additionally, we have observed that
[o]ur prior cases have recognized that the principles undergirding res judicata serve “to advance several related policy goals—(1) to promote fairness by preventing vexatious litigation; (2) to conserve judicial resources; (3) to prevent inconsistent decisions; and (4) to promote finality by bringing litigation to an end.”
State v. Miller, 194 W.Va. 3, 10 n. 8, 459 S.E.2d 114, 121 n. 8 (1995) (citations omitted).
Mr. Richey responds, however, that res judicata should not be applied if it would be unjust. While we have been cognizant of the need to ensure that application of res judicata does not “plainly defeat the ends of Justice[,]” Gentry v. Farruggia, 132 W.Va. 809, 811, 53 S.E.2d 741, 742 (1949), such an exception must be based upon “extraordinary circumstances” and “courts should be loathe to exercise this power.” Sims v. State, 771 N.E.2d 734, 738 n. 2 (Ind.Ct.App.2002). Accord Arwood v. J.P. & Sons, Inc., 759 So.2d 848, 850 (La.Ct.App.2000) (interests of justice exception should be granted only in exceptional cases in order to not defeat the purposes of res judicata). In this case, we face a situation that even more than usual justifies application of res judicata.
As one leading treatise notes, “a dismissal of a second action on the ground that it is precluded by a prior action is itself effective as res judicata, and a judgment on the merits that forecloses further litigation of the preclusion question in a third action.” 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4435 at 148 (2d ed. 2002) (footnote omitted). In short, a determination of res judicata is itself res judicata. If anything, the rule that a finding of res judicata is itself res judicata is of stronger force than a determination to apply res judicata in the first instance. “The principles of res judicata apply to preclude relitigation of the res judicata issue just as cogently as with any other issue, and perhaps even more cogently.” 18 Federal Practice & Procedure, supra § 4404 at 65 (footnote omitted).
Judge MacQueen denied Mr. Richey relief under Zain I in 1996. We subsequently refused Mr. Richey‘s petition for appeal by a 4-0 vote. Subsequently, Mr. Richey filed a petition for a writ of coram nobis and Rule 60(b) motion along with a motion for DNA testing. Judge Scott denied relief based on res judicata in 1998.10 Mr. Richey did not petition for appeal.11 In 2002, Judge Bloom denied Mr. Richey DNA testing based upon Judge Scott‘s res judicata dismissal. Again, Mr. Richey did not petition for appeal.
In syllabus point 4 of Blake v. Charleston Area Medical Center, 201 W.Va. 469, 498 S.E.2d 41 (1997), we explained:
Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court
having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action.
Here, Blake is met. Judge Bloom entered a final order finding that Judge Scott‘s final order barred Mr. Richey from pursuing a claim for DNA testing. This finding by a court of competent jurisdiction was a final adjudication on the merits of whether Mr. Richey could seek DNA testing. See 18A Federal Practice and Procedure, supra, § 4435 at 148 (footnote omitted) (dismissal on grounds of res judicata is “a judgment on the merits that forecloses further litigation of the preclusion question in a third action.“). Moreover, Mr. Richey never appealed either order. See Hustead on Behalf of Adkins v. Ashland Oil Inc., 197 W.Va. 55, 60, 475 S.E.2d 55, 60 (1996) (“The Appellant admittedly chose not to file a direct appeal from the circuit court‘s final order. That decision resulted in the judgment becoming final and subject to the principles of res judicata.“). Further, both cases involved the same parties, Mr. Richey and the State of West Virginia (represented in both cases by the Kanawha County Prosecuting Attorney). Finally, the two cases were based on the same cause of action-post-conviction DNA testing relating to Mr. Richey‘s 1979 conviction. Thus, we are compelled to conclude that res judicata precludes granting Mr. Richey the relief he seeks.12
C. Failure to otherwise establish a right to DNA testing
We have never spoken as to the precise contours of post-conviction DNA testing. However, other states have done so by crafting statutes that control the availability of post-conviction DNA testing. Our research has revealed many of these statutes share certain common provisions. Thus, we believe that this case provides us an opportunity to encapsulate the requirements to award post-conviction DNA testing by looking to these statutes.13
We begin by observing that a petitioner in a post-conviction proceeding bears the burden of pleading and subsequently proving his claims by a preponderance of the evidence. As we said in syllabus point 1 of State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486 (1966):
Under the statute of this state dealing with habeas corpus proceedings a prima facie case, in order for this Court to issue the writ, may be made by petition showing by an affidavit or other evidence probable cause to believe that a person is detained without lawful authority. However, this does not in any way warrant the release of a petitioner confined in the penitentiary. Such petitioner has the burden of proving by a preponderance of the evidence the allegations contained in his petition or affidavit which would warrant his release.
Having set forth the evidentiary standard a petitioner seeking post-conviction DNA testing must meet, we turn to establishing what the petitioner must actually prove in order to prevail. We note initially that we have already observed that the general nature of habeas corpus, our own post-conviction habeas corpus statute, and the views of other jurisdictions establish that a post-conviction petitioner seeking DNA testing must be incarcerated. See supra Part III.A. note 7 and accompanying text and Part III.B note 12. We also find that a general requirement is that the petitioner prove the material he or she seeks to test exists and is available. See, e.g.,
Likewise, because a DNA test result is only useful if it is accurate, it is generally acknowledged that the petitioner must prove that the material to be tested is in a condition that would permit DNA testing. See, e.g.,
A similar concern for accuracy undergirds the general requirement that a petitioner seeking post-conviction DNA testing prove a sufficient chain of custody of the material to be tested that establishes the material to be tested has not been substituted, tampered with, replaced, or altered in any material respect. See, e.g.,
At this junction we must point out that meeting these requirements does not entitle a petitioner to post-conviction DNA testing. Courts and legislatures have recognized an additional critical element. We turn to that element now-the relevancy of DNA testing in a given case.
While DNA testing is a powerful tool it “is not a magic bullet in post-conviction cases.” Jennifer Boemer, Note, In the Interest of Justice: Granting Post-Conviction Deoxyribonucleic Acid (DNA) Testing to Inmates, 27 Wm. Mitchell L. Rev. 1971, 1985 (2001) (quoting Chris Asplen, Executive Director of the National Commission on the Future of DNA Evidence). DNA “is only as powerful as it is relevant in a given scenario.” Id. DNA testing is irrelevant when the issue in the case involves non-identity issues such as consent or intent. Keith A. Findley, Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions, 38 Cal. W.L. Rev. 333, 337 (2002) (“Moreover, biological evidence is useless where issues of consent or intent, rather than identity, are in dispute.“). Indeed, many DNA testing statutes require identity to have been a significant issue at trial before testing is permitted. See, e.g.,
We also observe that post-conviction proceedings are not a venue for a petitioner to retry his case under different theories than those advanced at trial. United States ex rel. Darcy v. Handy, 97 F.Supp. 930, 939 (M.D.Pa.1951) (holding in a federal habeas case that “[h]aving taken the position
We now find it would be beneficial to crystallize our conclusions here today and therefore so hold that before a petitioner is entitled to post-conviction DNA testing the petitioner must file a motion for post-conviction DNA testing in the circuit court that entered the judgment of conviction that the petitioner challenges. In the motion the petitioner must allege, and subsequently prove by a preponderance of the evidence, that: 1) the petitioner is incarcerated; 2) the material upon which the petitioner seeks testing exists and is available; 3) the material to be tested is in a condition that would permit DNA; 4) a sufficient chain of custody of the material to be tested exists to establish such material has not been substituted, tampered with, replaced, or altered in any material respect; 5) identity was a significant issue at trial; and, 6) a DNA test result excluding the petitioner as being the genetic donator of the tested material would be outcome determinative in proving the petitioner not guilty of the offense(s) for which the petitioner was convicted. Finally, the petitioner‘s theory supporting the request for post-conviction DNA testing may not be inconsistent with the trial defenses. Of course, if the test result excludes the petitioner as being the genetic donator of the tested material, the circuit court shall award appropriate relief.
We wish to further point out that motions for post-conviction DNA testing would fall under the definition of eligible proceeding under the West Virginia Public Defender Services Act.
In conclusion, we again reiterate that “the purpose of the legal system is to provide final resolution of legal controversies[.]” Wellman v. Energy Resources, Inc., 210 W.Va. 200, 207, 557 S.E.2d 254, 261 (2001). Since 1979, Mr. Richey has filed numerous suits over his conviction.17 However, ” [n]o effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial.” State v. Lo, 264 Wis.2d 1, 38, 665 N.W.2d 756, 774 (2003) (citation omitted). We have thus found no one is “entitled to appeal upon appeal, attack upon attack, and habeas corpus upon habeas corpus.” Call v. McKenzie, 159 W.Va. 191, 194, 220 S.E.2d 665, 669 (1975). Accord United States v. Quinones, 313 F.3d 49, 62 (2d Cir.2002) (finding no fundamental right to “the continued opportunity to exonerate oneself throughout the natural course of one‘s life[.]“), cert. denied, 540 U.S. 1051, 124 S.Ct. 807, 157 L.Ed.2d 702 (2003). Having thoroughly considered the merits of his claims, we agree that litigation must end sometime and “[t]hat time has come for Mr. [Richey].” United States v. Keane, 852 F.2d 199, 206 (7th Cir.1988).
IV.
CONCLUSION
For the foregoing reasons, the petition for a writ of mandamus is denied.
Writ denied.
Justice STARCHER, deeming himself disqualified, did not participate in the decision of this case.
Judge PAUL ZAKAIB, Jr., sitting by temporary assignment.
Justice ALBRIGHT dissents and files a dissenting opinion.
Chief Justice MAYNARD concurs and files a concurring opinion.
ALBRIGHT, Justice, dissenting.
I dissent because, having improvidently decided the instant case on the narrow ground of res judicata, the majority has proceeded to unnecessarily “make law.” If followed, that unnecessary decisional law would improperly limit the power of this Court to address post-conviction criminal cases in which presently known or hereafter developed DNA technology might support reversal of unjust convictions.
Finality
In its fervor to provide guidance to the lower courts regarding post-conviction DNA testing requests,1 the majority addressed issues not squarely before this Court, issues which also have not been fully addressed by the parties. The majority undertakes to answer the broad question of which courts should consider what factors in what cases when faced with motions for post-conviction
“The strong presumption that verdicts are correct, one of the underpinnings of restrictions on postconviction relief, has been weakened by the growing number of convictions that have been vacated because of exclusionary DNA results.” National Commission on the Future of DNA Evidence, National Institute of Justice, Postconviction DNA Testing: Recommendation for Handling Requests, www.ncjrs.org/txtfilesl/nij/177626.txt (1999).2 It is axiomatic that exclusionary DNA results will lead to challenges to the finality of related convictions and judgments. The majority‘s blind adherence to conventional notions of finality fails to acknowledge the unique potential DNA testing currently and potentially has for determining the ultimate question of guilt or innocence, fails to credit the nationwide reality that such tests—as far as the technology has thus far progressed—have corrected miscarriages of justice in a substantial number of cases, and fails to appreciate that a request for such testing is a mere “first step.” A request for DNA testing is, by its nature, only a preliminary step to determining whether there is even a basis to petition for post-conviction relief. In the instant case, the request is even less a cause of concern because it does not involve the extraction of a DNA sample from anyone but the Petitioner or from any object other than items supposedly in the possession of the State or its agencies. At the time Petitioner was convicted, DNA testing was not available3 as a means of supporting or refuting Petitioner‘s contention that no crime had been committed. Petitioner and those similarly situated should not be deprived the benefit of the testing due to ill-suited orthodox notions of finality. As Justice Brennan stated in Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148, 157 (1963), the conventional notions of finality of litigation have no place where life or liberty is at stake ....” Id. at 8, 83 S.Ct. 1068. To reiterate, the testing itself simply determines what further action may be warranted. Thus, the consequence of granting DNA testing requests in relevant cases is aimed at identification of individuals who have been wrongly convicted so that justice results. In those circumstances ought not justice prevail over finality?
Incarceration
A good example of the improvidence of the rules for DNA testing set forth by the majority is the requirement that the Petitioner be incarcerated, supported by citation to a laundry list of statutes that require incarceration for an action at law to compel DNA testing. The instant case is a petition for relief where there is no adequate remedy at law. Would the majority have us believe that a citizen believing himself or herself wrongly convicted has no legitimate interest in overturning that conviction after release from prison? Or while on probation? Or on home confinement? That may be good statutory law in several states. It hardly suits the ends of justice.4 Rather, the limitation suggests it-
If it be the intent of the majority to completely bar persons unjustly convicted of crimes from ever utilizing DNA technology to regain their good names and reputations in the community simply because those persons have been released from prison or had the better fortune of undergoing probation, parole, home incarceration or community service for crimes of which they are innocent, I submit that intent must fail, the majority opinion in this case notwithstanding. There can be no sound reason for making a distinction on the basis of how a sentence is served or whether it has been fully served, since it hardly promotes the overriding aim of our criminal justice system: “that guilt shall not escape or innocence suffer.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).
Requiring Application To Circuit Courts
Simply put, the requirement manufactured by the majority that applications for post-conviction DNA testing must be initiated in the circuit courts is an inappropriate intrusion into the constitutional jurisdiction of this Court to grant extraordinary relief in any appropriate case5 where the remedy at law is inadequate and the common-law requirements for a given writ are met by a petitioner. While the contents of syllabus point six of the majority opinion6 could conceivably form the basis for a circuit court rule of practice and procedure to be promulgated by this Court after adequate public comment, its promulgation by way of decisional law is both inappropriate and ill-advised. In a similar vein, the majority opinion suggests that the Legislature‘s recent enactment of Enrolled Committee Substitute for House Bill 4156 (Reg. Sess. 2004) binds the manner in which courts handle DNA testing requests after its effective date and vindicates the majority‘s procedural limitations on applications for DNA testing. That statute does indeed establish a statutory right to DNA testing. It does not effect a limitation on the constitutional authority of this Court. Neither the majority‘s decision nor Enrolled Committee Substitute for House Bill 4156 should be permitted to bar from this Court any meritorious application to it for relief by way of an extraordinary writ within our constitutional jurisdiction.
Limiting the Tests of “Identity”
As to the requirement that identity must have been a significant issue at trial, I am dismayed by the majority‘s impliedly restric-
A Framework For Evaluating Applications For DNA Testing
Notwithstanding my strong disagreements with the dismissal of this case on the basis of res judicata and the overly broad terms of the majority opinion, I must evidence sympathy with the view that the Petitioner here did not bring us a clear picture of how the tests, if conducted, might have justified relief from the Petitioner‘s conviction. That clear picture, frankly, did not appear from the briefs or from the oral argument, in part because the clothing involved apparently was not introduced into evidence in the case.
Despite these deficiencies, I see absolutely no logical reason or other justification to support the majority‘s position that individuals initially applying for DNA testing bear the burden of proving factors which are beyond their knowledge and outside their possession. It is most unreasonable at this preliminary stage to expect persons who are least likely, especially if they are incarcerated or similarly incapacitated, to have access to the information to prove that the material to be tested exists and is available for testing, is in a condition which would permit DNA testing, and has a chain of custody which demonstrates the material has not been altered or otherwise tainted. Proof of these factors may at times be helpful in processing the request, but it seems more likely that some of this desired information will actually emerge from the testing process itself. To the extent such information is needed at this initial stage, a practical suggestion made by one authority8 is that it be derived from the cooperative efforts of the state and the convicted person‘s counsel. This seems to be an even-handed and fair approach at the application stage and would do nothing to disturb the established burden of proof if an attack on the judgment of conviction is later mounted by a convicted person. The convicted person making the attack would then bear the burden of proving the elements necessary to support the requested relief.
Moreover, the neat little rule that the petitioner‘s theory supporting a request for post-conviction DNA testing may not be inconsistent with the trial defenses is in many factual circumstances quite reasonable and appropriate. I see no reason, however, to exclude the possibility that a factual situation might arise—beyond the imagination of the majority to conceive—where that rule, set in stone, would work a horrible injustice. The facts of the case before us not requiring a ruling on the point, I dissent from the enunciation of that rule by reason of lack of knowledge of what might arise and by reason of awe for the unknown future. This Justice does not want our courts put in a box of unknown possibilities.
All of that being said, it seems to me indispensable that one applying to this Court, or under the majority‘s preferred route, to a circuit court, for DNA testing in a post-
Summary
As I find the majority‘s solution of forcing the round peg of DNA testing into the square hole of traditional post-conviction remedies to be unduly restrictive and founded on factors not before us and largely unknown to us, I respectfully dissent.
MAYNARD, Chief Justice, concurring.
(Filed July 6, 2004)
I write separately to concur with the majority in this case and to express particular concern with the tension between the need for fairness and the expenditure of limited judicial resources. I have always sought to make decisions which are fair, faithful to the precedents of this Court, and respectful to the views of other jurisdictions. Having read the very scholarly dissenting opinion, I believe that it is too motivated by what it perceives are legitimate concerns about the fairness, justness, and equity of the majority opinion. I believe the dissenting opinion is off the mark in its concern. Thus, I fully join the majority opinion but write separately to more fully explain why the opinion is fair, just, equitable, consistent with West Virginia law, and is consistent with the majority view of the law in numerous other jurisdictions.
A. General Rules of Criminal Finality
First, the dissent expresses substantial concern that “‘[c]onventional notions of finality of litigation have no place where life or liberty is at stake ....’ Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).” However, “[w]ithout finality, the criminal law is deprived of much of its deterrent effect. The fact that life and liberty are at stake in criminal prosecutions ‘shows only that the “conventional notions of finality” should not have as much place in criminal as in civil litigation, not that they should have none.‘” Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 1074-75, 103 L.Ed.2d 334 (1989) (plurality opinion) (quoting Hon. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Chi. L.Rev. 142, 150 (1970)).1 Accord State v. Mata, 185 Ariz. 319, 916 P.2d 1035, 1053 (1996) (En Banc); People v. Smith, 341 Ill.App.3d 530, 276 Ill.Dec. 472, 794 N.E.2d 367, 377 (2003); State v. Whitfield, 107 S.W.3d 253, 281 (Mo.2003) (En Banc) (Limbaugh, C.J., dissenting) (rule applies at both “the state or federal level...“). In fact, the
A judgment denying relief in post-conviction habeas corpus is res judicata on questions of fact or law which have been fully and finally litigated and decided, and as to issues which with reasonable diligence should have been known but were not raised, and this occurs where there has been an omnibus habeas corpus hearing at which the applicant for habeas corpus was represented by counsel or appeared pro se having knowingly and intelligently waived his right to counsel.
Syllabus Point 2, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). See also State ex rel. Strogen v. Trent, 196 W.Va. 148, 150 n. 1, 469 S.E.2d 7, 9 n. 1 (1996) (per curiam) (refusing to apply
Even those who have been convicted have an interest in the finality of their convictions. “As Justice Harlan once observed, ‘... the individual criminal defendant ha[s] an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community. ‘” Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 127, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982)) (quoting Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting)). That is to say,
At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen.
Schneckloth, 412 U.S. at 262, 93 S.Ct. at 2065 (Powell, J., concurring). Consequently, I must agree that:
“A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the effectiveness of underlying substantive commands ... There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern but merely anxiety and a desire for immobility.”
B. The Incarceration Requirement
The dissent states that “[t]here can be no sound reason for making a distinction on the basis of how a sentence is served or whether it has been fully served, since it hardly promotes the overriding aim of our criminal justice system: ‘that guilt shall not escape or innocence suffer.’ Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).”3 I believe that there are a number of good reasons to require current incarceration as a predicate to requesting post-conviction DNA relief.
The requirement that a post-conviction DNA petitioner be incarcerated is the standard applied to ordinary petitioners by the West Virginia Habeas Corpus Act; it is the standard applied by H.B. 4156; it is the standard that has been applied by numerous other jurisdictions; it is the standard enunciated in the pending Federal Innocence Protection Act; and it is the standard articulated by the seminal academic articles on the subject.4 Aside from West Virginia law and my very strong and firm belief that this Court owes a healthy amount of respect to the actions of the Legislature in determining issues of public policy, the non-West Virginia authority alone would be a sufficiently compelling reason justifying a requirement that one be currently incarcerated before being allowed to seek post-conviction DNA testing. Dailey v. Board of Review, 214 W.Va. 419, 433, 589 S.E.2d 797, 811 (2003) (Albright, J.) (Starcher, C.J., concurring) (“The majority opinion, in superb detail, sets forth the definitions of the two terms used by other states, and uses the law of those other states to craft definitions for use in West Virginia.“).
Further, we have recognized that it is “often the case in our vocation ... to craft a working rule that reflects a delicate balance between two competing interests.” State ex rel. Roark v. Casey, 169 W.Va. 280, 284, 286 S.E.2d 702, 705 (1982). While released inmates who may be innocent have a personal interest in their “good names and reputations,”5 those inmates who are innocent and still in prison have an even stronger interest-gaining their freedom. We must face the reality that the judicial system has limited resources. “[W]e live in a world of scarcity,
The resources that support these proceedings, however, are not infinite. Thus, we must prioritize and apply the justice system‘s finite resources to mitigating the greatest harms being caused from convicting a person who is actually innocent. Consequently, “[w]here sentences have been served, the finality concept is of an overriding nature, more so than in other forms of collateral review such as habeas corpus, where a continuance of confinement could be manifestly unjust.” Fleming v. United States, 146 F.3d 88, 91 n. 3 (2d Cir.1998) (quoting United States v. Osser, 864 F.2d 1056, 1059 (3d Cir.1988)).6
While I am “acutely conscious ... that [Mr. Richey] must bear the emotional weight and public obloquy of conviction,” Keane, 852 F.2d at 206, the interest of those still incarcerated in being released from the “restrictive and even harsh” conditions of imprisonment that attend incarceration clearly must be our first priority.7 “At some point the judicial system must close old files and turn to the future, regretfully accepting the risk of error lest the quest for perfect justice become the enemy of adequate justice.” Keane, 852 F.2d at 206. All of these factors are “sound reason[s] for making a distinction on the basis of how a sentence is served or whether it has been fully served” in deciding whether to permit post-conviction DNA testing.
C. Post-Conviction DNA testing and Constitutional Jurisdiction
Finally, I want to defend the majority opinion from the claims that its directive that a petitioner must seek post-conviction testing from the court that entered the conviction, which is the same requirement imposed by H.B. 4156, is somehow an unconstitutional infringement on the original jurisdiction of this Court. I note that the dissent cites no specific authority for its conclusion that requiring a petitioner to seek post-conviction DNA testing from the court of conviction is an “inappropriate intrusion into the constitutional jurisdiction of this Court to grant extraordinary relief in any appropriate case where the remedy at law is inadequate and the common-law requirements are met by a petitioner.”8 Indeed, decisional law from this Court appears to refute the dissent‘s position for we have previously recognized that
Moreover, requiring post-conviction DNA petitioners to seek relief from the court of conviction is eminently justifiable since the “[l]aw is practical and that is the practical approach.” State ex rel. Shorter v. Hey, 170 W.Va. 249, 258, 294 S.E.2d 51, 60 (1981) (Neely, J., concurring). The court of conviction is the court that has control over the circuit clerk who is responsible for the record in the case. Likewise, the circuit court presumably should have access to the record containing the material the petitioner wants tested. In point of fact, DNA testing is necessarily going to involve factual questions and we have observed that “[g]enerally, we decline to exercise original jurisdiction in cases involving merely factual disputes.” State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996). In short, “[t]he exercise of our original jurisdiction is discretionary and is governed by the practical circumstances of the case.” State ex rel. McGraw v. Telecheck, 213 W.Va. 438, 443 n. 3, 582 S.E.2d 885, 890 n. 3 (2003) (quoting State ex rel. Doe v. Troisi, 194 W.Va. 28, 32, 459 S.E.2d 139, 143 (1995)). In declining to exercise our original jurisdiction and directing petitioners “to a more appropriate court...we are exercising the discretion granted to us by the [state] Constitution.” Harvard v. Singletary, 733 So.2d 1020, 1021 (Fla.1999) (per curiam). Cf. W. Va. R.App. P. 14(c) (“If the Supreme Court determines not to issue a rule to show cause, such determination shall be without prejudice to the right of the petitioner to present a petition to a lower court having proper jurisdiction, unless the Supreme Court specifically notes in the order denying a rule to show cause, that the denial is with prejudice.“)
Finally, aside from everything else, however, I also do not understand the necessity for this Court to exercise its original jurisdiction in post-conviction DNA cases. Neither the majority opinion nor H.B. 4156 excludes this Court from participation in such cases. We can, of course, in appropriate cases, review the decisions of the circuit courts by way of a petition for appeal.9 I have unbounded great confidence in the circuit court judges in this State. I believe that they can be trusted to apply either the majority opinion or H.B. 4156 as appropriate.
Having set forth why the majority and H.B. 4156 are fair, just, and equitable, I fully concur with the majority opinion.
Notes
But see note 5, supra (observing that reputational injury alone is not a constitutional violation or a ground justifying post-conviction relief).Before a petitioner is entitled to post-conviction DNA testing the petitioner must file a motion for post-conviction DNA testing in the circuit court that entered the judgment of conviction that the petitioner challenges. In the motion the petitioner must allege, and subsequently prove by a preponderance of the evidence, that: 1) the petitioner is incarcerated; 2) the material upon which the petitioner seeks testing exists and is available; 3) the material to be tested is in a condition that would permit DNA [testing]; 4) a sufficient chain of custody of the material to be tested exists to establish such material has not been substituted, tampered with, replaced, or altered in any material respect; 5) identity was a significant issue at trial; and 6) a DNA test result excluding the petitioner as being the genetic donator of the tested material would be outcome determinative in proving the petitioner not guilty of the offense(s) for which the petitioner was convicted. Finally, the petitioner‘s theory supporting the request for post-conviction DNA testing may not be inconsistent with the trial defenses.