*1 event, dis- circuit court should act with Proceedings Virginia in Corpus West Habeas Rules”).4 (hereinafter patch prompt decision. and render Corpus “Habeas certainly concerned we are While 4(a) Corpus Rules of the Habeas Rule petition at issue here fact that the habeas prompt requires also circuit courts make nearly pending in circuit court was petition a habeas determination we, nonetheless, months, find thirteen Rule should to another court. be transferred county in which transferring the case to the 4(a) specifically provides that: appropriate. was petitioner was convicted presented original petition shall be above, Thus, set forth for the reasons (“the court”), court, promptly to circuit prayed for is denied. writ procedure in with the accordance Writ denied. assignment of its business. The court for promptly court shall review whether the
petition to a venue should be transferred 3(a).5 ap- in If
set forth Rule transfer promptly
propriate, court shall enter transferring petition.
an order above, corpus petitions
As discussed habeas challenge petitioner’s conviction or generally returned to the court sentence are Virginia, Plaintiff of West STATE petitioner was convicted and wherein the Below, Appellee, procedure only prac- sentenced. This tical in that it allows the court most the sense NETT, Defendant Steven peti- familiar with the circumstances Below, Appellant. petition, tioner’s ease to consider the habeas lighten the ease load of but also serves No. 26963. in with correctional courts located counties Appeals Supreme Court facilities. time these counties is Judicial Virginia. great often limited because of the number petitions Ac- habeas that are filed therein. April 2000. Submitted cordingly, we hold that June 2000. Decided petition corpus whether a habeas is suitable court, circuit for transfer to another Dissenting Opinion of Chief Justice allegations court should consider whether the Maynard 2000. June petition to the forth the habeas relate set petitioner’s sentencing. conviction If and/or allegations, petition contain such does judicial practical
then considerations and
economy ordinarily that it be trans- dictate county petitioner
ferred to the wherein the However, if
was convicted and sentenced. challenges of con- petition the conditions purely legal ques-
finement or raises other petitioner’s
tions or to the issues unrelated sentencing, should
conviction the writ and/or county court in the
be returnable petitioner
which the is confined. (1) may petition in the circuit court adopted A be filed: order dated De- These rules were county petitioner incar- wherein the of the cerated; and became effective immedi- cember in the circuit court of ately. county petitioner was convicted wherein the appropriate, the circuit If and sentenced. 3(a) pertinent part: provides, 5. Rule may petition to either venue. transfer a *2 Defender, Wood, Public Wheel-
Heather A. Attorney Appel- ing, for the Virginia, West lant. McGraw, Jr., General, Attorney
Darrell V. II, Attorney Loughry, H. Assistant Allen General, Charleston, Virginia, Attorney Appellee. for the jurors. PER strikes CURIAM: to remove both ultimately convicted Mr. of a third of- (herein- Nett, appellant/defendant Steven fense DUI. The trial court sentenced Mr. Nett”), appeals after to as “Mr. referred his (3) years Nett to imprison- one three for third conviction and sentence offense *3 It from ment. this conviction that Mr. of driving the alcohol. The under influence appeals. Nett now County Circuit of Ohio sentenced Mr. Court (3) years in to three Nett to one the state assigned
penitentiary. Mr. Nett has as II. error poten- the trial refusal to strike two court’s STANDARD OF REVIEW jurors has tial for cause.1 The State confess- circuit court’s ed error as the failure to appeal required In this arewe jurors. potential of strike the one After determine whether the trial committed parties’ and reviewing considering the briefs refusing motions to Nett’s strike case, arguments in the record and the potential jurors. for cause two The standard being by without bound State’s confessed of review this for issue was articulated in error, we conclude circuit court Miller, 588, 600-01, erred its of failure strike one (1996), S.E.2d 547-48 wherein we held: Therefore, potential jurors. we reverse the reviewing qualifications In of a County Circuit Ohio' Court remand ease, in a serve criminal we follow a this for a new case trial. process. three-step plenary review is Our questions legal as to as statutory such
I. jurors; qualifications clearly for erroneous support as to whether the facts AND FACTUAL PROCEDURAL grounds upon disqualification; relied for HISTORY and an abuse of discretion as to the rea- 30, 1998,Wheeling On June Police officers procedure employed sonableness Flannigan driving and Kozik were their ruling disqualification on patrol they when car observed a Subaru trial court. swerving onto and off of the street. The Wade, 637, 654, See State v. nearby parking officers followed the car to a (1997); pt. Syl. S.E.2d State v. driver, lot and confronted the Mr. Nett.2 Mayle, 178 W.Va. The officers detected an odor alcohol on Syllabus point In 4 of State Miller we speech Mr. Nett. His was slurred and his noted: eyes were bloodshot. asked to When take a test, sobriety field Mr. Nett refused. The The relevant test for wheth- driving officers him for arrested under er a biased is whether the of alcohol. opinion influence When the officers ar- had such a fixed that he or she police headquarters, judge rived at impartially Nett could not re- fused take breath though test. defendant. Even swears she he or could set aside arrest, Subsequent to Mr. felony Nett’s might he or she hold and decide the ease against charg- indictment was him returned evidence, protestation ing driving one count under the influence impartiality should not credited if be alcohol, offense, third in violation of W. other facts record indicate to the § 17C-5-2. voir During Va.Code dire of the contrary. prospective jurors, Mr. moved jurors court to for Syl. strike Denmon and pt. cause S.E.2d 535. See Salmons, Melko. trial court denied the motions. subsequently
Mr. Nett his peremptory used S.E.2d 842 With this standard in incident, petition However, assigned appeal Mr. Nett’s numer- 2. Five before hours this officers Flanni- ap- ous errors. gan this Court limited the public and Kozik had arrested Mr. Nett for peal to the issue sole of the circuit court's failure intoxication. potential jurors. to strike for cause two Nett, at this view, again everybody will—Mr. of the issue turn to the merits — here, point as sits is innocent. The presented. country presumes him of our Constitution III. system. And That’s our he’s innocent. be, entitled, anybody to have else DISCUSSION a trial. And that’s what we’re here argues that Mr. Nett sure, that, you do sir? make Can reversible error strike committed point. say Hard to at this JUROR: fact, for cause.3 the State Mr. Denmon unequivocally say no. can’t fail to it was error to has conceded [prosecu- Mr. Smith law is clear that strike Mr. Denmon. Our tor], any questions? you do have *4 by does not confession of error the State No, your honor. MR. SMITH: a automatically to re entitle the defendant [defense TRIAL Ms. Wood COURT: obligated ac is not versal. “This Court counsel]? of in a crim cept the State’s confession Yes, your honor. when, MS. WOOD: proper so after a inal case. We will do Syl. pt. analysis, error occurred.” we believe Julius, 422, 8, 185 408 S.E.2d W.Va. Denmon, long ago how MS. WOOD: (1991). H., 196 1 v. Todd Andrew See State happen? did this incident 615, 6, 545, n. 619 n. 474 548 6
W.Va. S.E.2d twenty years ago. Over JUROR: Holland, 202, (1996); Turner v. 175 W.Va. (1985); 1, 203, 164, Syl. pt. 165 you’re you think when Do MS. WOOD: 309, Young, 273 v. S.E.2d State deliberating, jury room back there (1980); Syllabus, Goff, v. State your you into mind when that it will enter (1976). 348, 221 We must find S.E.2d deliberate. [is] confessed the State error[ ] “that the Probably. JUROR: facts clearly the law and the established you Judge Do think —the MS. WOOD: Berrill, 196 of case.” v. W.Va. th[e] State you’ve this you and heard fact has told S.E.2d alleged to a Mr. Nett crime where fol- During voir dire of Mr. Denmon the previously. youDo have committed DUI lowing exchange occurred: your into think that will also enter TRIAL You see that? There COURT: you thoughts when deliberate? right. All Is it Mr. we are. Denmon? Probably. JUROR: Denmon, yes. Two summers JUROR: you you Do think would be MS. WOOD: high graduation I lost two after school guilty likely Mr. Nett more to consider accidents, friends, separate two to alcohol. considering past experiences, of because question TRIAL That’s the COURT: allegation previous DUI? an there’s get so going that a moment we’re mind, my That would enter JUROR: might touch on it now. The as well yes. you person who question is have a here nothing I further. have MS. WOOD: Driving charged with Under the Influence is, and question TRIAL Alcohol, fact Third And the Offense. you good question, but would tend it’s a you experiences with either that had these guilty of cur- Mr. Nett is believe that friends, neighbors opera- in the involved prior convictions charge rent because vehicles, drinking motor both with tion of key? That’s the DUI? involved, experience any way would that say, looking at It’s hard to you you sit as a JUROR: influence so that couldn’t side, seeing evi- all the from this without taking that oath and verdict? after mind, you Keeping in as I will tell time and dence. ruling relat- trial court’s Melko for cause as the did error as to the trial
3. The State not confess ruling relating ing to Ms. Melko. We need reversible error. court’s Denmon is failure to strike Ms. not address the trial court’s incidents, good point. driving COURT: That’s friends killed drunk as only knowledge And it’s this case prior because we start well as Mr. Nett’s DUI put We a clean and not too fíne a offenses. have held that should there be with slate it, impar- about a an doubt you empty is that have fairness and point tiality, “such doubt must be in favor only with resolved vessel here and it’s filled evi- challenge of the defendant’s to strike the during dence that’s admitted the trial. Bennett, juror.” 269, 271, State you given the law at And then that’s S.E.2d end, The essence you you apply mesh the two and jurors process voir dire is “to secure you facts find be to law them to only who prejudice, are free from but give you I you deliberate then preju- who free suspicion are also from the system. reach a verdict. That’s West, dice.” question only you And the is—and can (1973) (citation omitted). 865-66 not, answer this —as to know- ing system, you that’s the return a could century At the turn of the last this fair, impartial, unbiased verdict? Court held JUROR: It would be difficult. [w]hen on his voir admits dire “yes” TRIAL COURT: Is or “no”? expressed opin- that he has formed and an really Don’t be ashamed. need to know. accused, ion of the or innocence of the *5 really point, JUROR: At this its hard expresses any degree and as to doubt say. for me to I that I’d don’t know be previously such opinion whether formed separate myself. say to can’t able for judgment arriving would affect his in at a case, just proper sure. and verdict in the is panel. to admit him on the 4, Syl. Johnson, 684, pt. v. TRIAL a motion? State 39 COURT: Is there (1901). Writing Syllabus S.E. 665 in point 376, Gargiliana, of State v. 138 W.Va. MS. WOOD: We make a motion (1953), stated, part, we in that a cause, your to strike for Honor. prospective “mind must be in condi Well, going I’m to say tion him to enable on his voir dire deny the motion at I think this time. the unequivocally and without that hesitation juror, ability because there’s not an at this [any opinion judg foi’med] will not affect his know time —whatever he needs to is to arriving just ment in at a verdict from the going deny hear the evidence. I’m alone on evidence submitted Exception motion. saved. (Citation omitted). trial of case.” Based findWe it difficult to understand upon Mr. Denmon’s stated equivoca bias and trial court’s denial of Mr. Nett’s motion tion put as to whether he could that aside Clearly, to strike Mr. Denmon for cause. bias, must reverse the and conviction showing Mr. established his burden in this case. sentence fairly impar that Denmon could not and tially juror sit point as a trial.4 At no IV. during the voir Denmon dire did Mr. state CONCLUSION fairly impartially
that he could hear The circuit court’s conviction and sentence against fact, Mr. Denmon case Nett. This reversed. case is remanded for new clear to trial there was a made court that trial. fairly possibility impar that he could not tially case, having decide the two due Reversed Remanded. jury panel
4. We are did not unconcerned that Mr. Denmon an unbiased Conse- assembled. juror being in fact sit as a removed validly challenges due to his quently, if a defendant Syllabus peremptory strike. We made clear juror prospective for cause and 569, point Phillips, 8 of State v. juror, remove the re- fails to reversible error (1995), S.E.2d 75 that: if subsequently sults even a defendant uses his language § The of W. Va.Code 62-3-3 peremptory challenge to trial correct (1949), grants specific right defendant the court's error. peremptory challenges reserve his or her until Justice, MAYNARD, dissenting: Chief 533 S.E.2d 2000) (Filed 28, June Virginia, STATE of West Plaintiff Below, Appellee, not believe that the because I do I dissent abused its discretion Accordingly, juror Denmon for cause. strike WALKER, Gene Harold Defendant appellant’s not have reversed I would Below, Appellant. based this failure.1 conviction 26657. No. majority, “[t]he relevant noted As bi- whether Appeals test Supreme Court such a had fixed whether the Virginia. ased is judge impar- not that he she could opinion 22, Feb. 2000. Submitted Syllabus tially guilt defendant.” June 2000. Miller, Decided part, Point Stated different- Dissenting Opinion Chief Justice juror Denmon ad- inquiry is ly, the Maynard June 2000. had an on his voir dire that he formed mitted Concurring Opinion of Justice ac- or innocence July Stareher Syllabus Point John- cused. See son, 39 S.E. transcript not indicate trial does opinion. had a fixed Rath- formed
Denmon say
er, juror Denmon unable was to be inno- presume defendant
could at the trial’s outset. He disclosed
cent *6 deaths would
his friends’ alcohol-related deliberations, during his mind
probably enter difficult to admitted it would be fair, impartial, and unbiased verdict.
render however,
Notably, intimated that he have to see all the evidence before
making up his mind. judge, I I had been the trial would have
If motion Denmon
sustained the to strike However, this is not the test used
for cause. Instead, ask are to wheth-
by this Court. its discretion in abused
er juror.
failing Because Den- to strike express to the
mon did not fixed appellant, I must
guilt of the conclude did its discretion. not abuse
Accordingly, I dissent. majority appellant does not address this issue. claimed that the trial court
1. The also Melko. strike for cause erred