Daye v. Plumley, 13-0913

CourtSupreme Court of West Virginia
Decision Date04 April 2014
Docket NumberNo. 13-0913,13-0913
PartiesCornell F. Daye, Petitioner, Petitioner v. Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent, Respondent

Cornell F. Daye, Petitioner, Petitioner
Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent, Respondent

No. 13-0913


Entered: August 16, 2013
ISSUED: April 4, 2014

(Raleigh County 04-C-531)


Petitioner Cornell F. Daye, appearing pro se, appeals the order of the Circuit Court of Raleigh County, entered August 23, 2013, that denied his petition for a writ of habeas corpus following an omnibus hearing. Respondent warden, by counsel Julie A. Warren, filed a response. Petitioner filed a reply.1

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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was twice convicted of possession of crack cocaine with intent to deliver in this State and convicted for possession of a controlled substance with intent to deliver in the State of Florida. In State ex rel. Daye v. McBride, 222 W.Va. 17, 658 S.E.2d 547 (2007), petitioner challenged the imposition of a life sentence pursuant to the recidivist statute, West Virginia Code §§ 61-11-18 and -19. This Court held in Daye that the imposition of a life sentence was mandatory and remanded the case for development of outstanding habeas corpus issues. 222 W.Va. at 24, 658 S.E.2d at 554.

Pursuant to this Court's remand order, petitioner was appointed counsel. After experiencing disagreements with his attorneys, petitioner moved to proceed pro se, which motion was granted. Petitioner was also provided with discovery; however, respondent warden subsequently moved to terminate discovery. See Rule 7(a), W.V.R. Governing Post-Conviction Habeas Corpus Proceedings (a petitioner may engage in discovery "if, and to

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the extent that, the court in the exercise of its discretion, and for good cause shown, grants leave to do so."). The circuit court granted the motion to terminate discovery and also later resolved petitioner's outstanding discovery and subpoena requests in its final order.

Petitioner was given an omnibus hearing on May 9, 2012, and April 11, 2013. On August 23, 2013, the circuit court denied the petition in an exhaustive 116-page order that addressed petitioner's numerous grounds for relief.

Petitioner appeals the circuit court's August 23, 2013, order that denied habeas relief. We review a circuit court's denial of a habeas petition under an abuse of discretion standard. See Syl. Pt. 1, in part, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

On appeal, petitioner raises eight claims that were rejected by the circuit court in its order: (1) that the circuit court erred in refusing petitioner's subpoena requests and in not ruling on discovery issues prior to the omnibus hearing; (2) that Brady v. Maryland, 373 U.S. 83 (1963), was violated; (3) that the imposition of a life sentence pursuant to the recidivist statute was unconstitutional; (4) that the State was impermissibly allowed to present the name and nature of petitioner's prior offenses despite his offer to stipulate to the previous offenses; (5) that a jury instruction on intent was unconstitutional; (6) that the State violated a plea agreement when sentences were not run concurrently; (7) that petitioner did not waive his right to be indicted; and (8) that an adequate factual basis did not exist for petitioner's plea. Respondent warden argues that petitioner has failed to show that the circuit court erred in denying his petition.

After careful consideration of the parties' arguments, this Court concludes that the circuit court did not abuse its discretion in denying the petition. Having reviewed the circuit court's "Order Denying Petition for Omnibus Writ of Habeas Corpus and Resolving Other Matters Raised in Case Nos. 97-F-16-H, 99-IF-69-K, 00-F-36-K, & 01-IF-158," entered August 23, 2013, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.

For the foregoing reasons, we find no error in the decision of the Circuit Court of Raleigh County and affirm its August 23, 2013, order that denied the petition.



Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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THOMAS McBRIDE, Warden, Mount Olive Correctional Complex, Respondent.

Civil Action No. 04-C-531

IN CASE NOS. 97-F-16-H, 99-IF-69-K, 00-F-36-K & 01-IF-158

On the 9th day of May, 2012, this matter came before the circuit court of Raleigh County for an Omnibus hearing on Petitioner's Amended Petition for Post-Conviction Habeas Corpus relief brought pursuant to the provisions of West Virginia Code §53-4A-1, et seq., as amended. Present at the hearing were the Petitioner, pro se, and Chief Deputy Prosecuting Attorney Thomas Truman, counsel for the State.

Petitioner seeks habeas corpus relief from a sentence of life imprisonment imposed by the court after his conviction for recidivism. He contests the constitutionality of his incarceration on eight primary grounds: (1) newly discovered exculpatory evidence should have been disclosed by the State; (2) the life sentence under the habitual offender statute was constitutionally disproportionate, as all three underlying convictions were for nonviolent offenses to wit: possession of a controlled substance with intent to deliver; (3) Rule 35(a) only allows a court to correct a sentence; (4a) once a defendant begins serving a sentence, trial courts have no authority

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or jurisdiction to increase the sentence, under double jeopardy principles; (4b) only the specific sentence enhancement under W.Va. Code § 60A-4-408 can be applied where the defendant has multiple convictions under the Uniform Controlled Substances Act; and (4c) West Virginia Rule of Criminal Procedure 35(a) only permits a trial court to correct an illegal sentence, not impose a harsher sentence; (5) his convictions in case numbers 97-F-16-H and 99-IF-69-K, should be invalidated; (6) the State insisted upon presenting other criminal convictions evidence, where Petitioner's prior conviction was a status element of the crime, when Petitioner repeatedly requested to stipulate to the prior convictions; (7) he was denied effective assistance of counsel when his lawyer presented a jury instruction advising the jury that the element of intent could be assumed; (8) and the Interstate Agreement on Detainers was violated. All other Losh grounds Petitioner listed as grounds for relief are set forth and addressed in Section V of this Opinion

After due and careful consideration and for the reasons set forth below, the Court finds and concludes that the Amended Petition for Writ of Habeas Corpus should be denied.2


1. This present matter includes contentions of error arising from Cornell Daye's convictions in 1997, 1999, and 2001.

2. In January of 1997, the Raleigh County Grand Jury returned an indictment charging the Cornell Daye3 with one count of obtaining property by false pretenses and one count of possession of "crack" cocaine with the intent to deliver.

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3. The count of possession with intent to deliver arose from an incident on or about August 22, 1996, wherein a Beckley City Police officer arrested the Petitioner pursuant to an outstanding warrant. In conducting a search of the Petitioner's person, the officer uncovered a sock tucked into the Petitioner's waistband which contained a plastic baggie containing crack cocaine and two $50.00 bills.

4. The Petitioner and his appointed counsel both signed a Waiver of Preliminary Hearing on September 3, 1996, and the case was assigned to Raleigh County Circuit Court Judge John A. Hutchison in Case No. 97-F-16-H.

5. On March 28, 1997, the Petitioner entered pleas of guilty to petit larceny and possession of "crack" cocaine with intent to deliver. The pleas were accepted by this Court.

6. On July 3, 1997, this Court sentenced the Petitioner upon his guilty pleas to a term of one (1) year in the Southern Regional Jail on the petit larceny conviction, and a term of not less than one (1) nor more than fifteen (15) years in the penitentiary on the conviction of possession with intent to deliver. The Court ordered that the...

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