Perdue v. Coiner
| Citation | 156 W.Va. 467,194 S.E.2d 657 |
| Decision Date | 27 February 1973 |
| Docket Number | No. 13204,13204 |
| Court | Supreme Court of West Virginia |
| Parties | Dwight PERDUE v. Ira M. COINER, Warden, West Virginia Penitentiary. |
Syllabus by the Court
1. A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no relief.
2. On an appeal to this Court the appellant bears the burden of showing that there was error in the proceedings below resulting in the judgment of which he complains, all presumptions being in favor of the correctness of the proceedings and judgment in and of the trial court.
Thomas S. Lilly, Princeton, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Richard E. Hardison, E. Leslie Hoffman, III, Asst. Attys. Gen., Charleston, for defendant in error.
This is an appeal from a final order of the Circuit Court of Mercer County, wherein the court denied the petitioner, Dwight Perdue, appellant herein, a writ of habeas corpus.
The appellant was tried and found guilty on an indictment returned by the Grand Jury on the Intermediate Court of Mercer County. Upon the judgment entered by that court on September 22, 1970, he was sentenced to confinement in the state penitentiary for a term of from one to ten years. The appellant then appealed said judgment to the Circuit Court of Mercer County following which, on May 13, 1971, said appeal was denied. On September 13, 1971, within four months of the latter date, a petition for appeal was filed in this Court. That appeal also was denied.
On November 4, 1971, the petitioner, Dwight Perdue, filed with the Clerk of the Circuit Court of Mercer County a petition for a writ of habeas corpus wherein, in addition to his prayer for relief, he requested the assistance of counsel. That court, by order dated November 26, 1971, denied the writ without a hearing. On December 16, 1971, petitioner's present counsel was appointed to assist him in the habeas corpus proceeding.
Although in his petition for a writ of error and supersedeas the petitioner assigns numerous errors, he relies upon and argues only the following: (1) The failure of the court to appoint counsel to represent him prior to the denial of the writ of habeas corpus; (2) the denial of the writ of habeas corpus without a full and fair hearing; (3) the failure of his counsel to file a timely appeal to the judgment of conviction; and (4) the failure of the court, in denying his petition for a writ of habeas corpus, to comply with the provisions of Code, 1931, 53--4A--7, as amended, in that its order did not reveal specific findings of fact and conclusions of law relating to each contention.
In relation to the appellant's assignment concerning the failure of the court to appoint counsel to assist him, it must be remembered that this proceeding is civil in nature, not criminal. We are not here concerned with an indigent defendant, who, there is no longer any doubt, is clearly entitled to the appointment of counsel to assist him in his defense. Clearly demonstrating that habeas corpus proceedings are civil rather than criminal in nature is the following language of the Court in State ex rel. Harrison v. Coiner, 154 W.Va. 467, 176 S.E.2d 677:
This being a civil proceeding the appellant must rely upon the provisions of Code, 1931, 53--4A--4(a), as amended, in support of his request for counsel. Where pertinent that provision reads: 'If the court to which the writ is returnable * * * is satisfied that the facts alleged in this regard are true, and that the petition was filed in good faith, and has merit or is...
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Jordache Enterprises v. NAT. UNION FIRE INS.
...presumptions being in favor of the correctness of the proceedings and judgment in and of the trial court." Syllabus Point 2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). With these considerations in mind, we now proceed to the issues before III. DISCUSSION In their brief to this ......
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State ex. rel. Roger L. Bowers v. McBride
...or waived. W. Va. Code § 53-4A-3(a), 7(a); State ex rel. Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004); Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1979). 7. In order to prevail on an issue previously adjudicated during the criminal proceeding, the petitioner must prove that ......
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Morris v. Painter, 29758.
...there was error in the proceedings below resulting in the judgment of which he complains[.]" Syl. pt. 2, in part, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). Accord Cook v. Channel One, Inc., 209 W.Va. 432, 434, 549 S.E.2d 306, 308 (2001) (per curiam); Rose v. Thomas Mem'l Hosp.......
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Pethel v. McBride
...51 (1981). 42. We should note "that habeas corpus proceedings are civil rather than criminal in nature[.]" Perdue v. Coiner, 156 W.Va. 467, 468, 194 S.E.2d 657, 659 (1973). Consequently, Rule 10 of our Rules Governing Post-Conviction Habeas Corpus Proceedings, provides that the "Rules of Ci......