Concurring Opinion, Case No.25155 State of West Virginia ex rel. Samuel Anstey v. William K. Davis, et al.


Nos. 25155, 25156, 25157 & 25158-

State of West Virginia ex rel. Samuel Anstey v. William K. Davis,Commissioner, Division of Corrections, and George Trent, Warden,Mt. Olive Correctional Center, AND State of West Virginia ex rel. Gary W. Sheppard and Dwaine C. King v. William K. Davis, Commissioner, Division of Corrections, and George Trent, Warden, Mt. Olive Correctional Center AND State of West Virginia ex rel. Larry E. James, Jr., v. William K. Davis, Commissioner, Division of Corrections, and George Trent, Warden, Mt. Olive Correctional Center AND Charles Plantz v. George Trent, Warden, Mt. Olive Correctional Center

Chief Justice Davis, concurring:

        The disposition of this case by the majority opinion is legally correct, and I embrace it wholeheartedly. I have chosen to write separately only for the purpose of clarifying a point regarding limitations on the use of the habeas corpus petition.

A Habeas Corpus Petition Is Appropriate Only When
A Prisoner Seeks Actual Release From Custody

        In the past, this Court has allowed "conditions" of incarceration to form the basis for a habeas corpus proceeding. However, we have previously addressed conditions of incarceration in relation to a habeas petition, only in the context of inmates seeking actual release from confinement due to challenged prison conditions. See Crain v. Bordenkircher, 176 W. Va. 338, 342 S.E.2d 422 (1986). In the instant proceeding, inmates complained that their personal computers were taken from them. Confiscation of computers from inmates, in and of itself, is not a proper basis for the filing or the granting of a habeas petition. In such a circumstance, the appropriate remedy may be relief through injunction, mandamus or prohibition. See Bishop v. McCoy, 174 W. Va. 99, 323 S.E.2d 140 (1984) (granting mandamus requiring inmate be placed in protective custody). To transform the confiscation of computers or anything else by prison officials into an issue appropriate for habeas review, there must be allegations charging that, as a result of such confiscation, confinement has become cruel and unusual punishment and requires release. Without such averments, a writ of habeas corpus simply is not the vehicle for challenging the confiscation of inmate property. As we held in Syllabus point 1 of State ex rel. Pingley v. Coiner, 155 W. V a. 591, 186 S.E.2d 220 (1972), "[h]abeas corpus lies to secure relief from conditions of imprisonment which constitute cruel and unusual punishment in violation of the provisions of Article III, Section 5, of the Constitution of West Virginia and of the Eighth Amendment to the Constitution of the United States." See Syl. pt. 1, Crain v. Bordenkircher, 176 W. Va. 338, 342 S.E.2d 422; Syl. pt. 2, State ex rel. J.D.W. v. Harris, 173 W. Va. 690, 319 S.E.2d 815 (1984); Syl. pt. 1, Hickson v. Kellison, 170 W. Va. 732, 296 S.E.2d 855 (1982); Syl. pt. 1, State ex rel. K.W. v. Werner, 161 W. Va. 192, 242 S.E.2d 907 (1978). To be clear, habeas is a vehicle for seeking release from confinement. See Brightman v. Withrow, 172 W.Va. 235, 304 S.E.2d 688 (1983); Hackl v. Dale, 171 W.Va. 415, 299 S.E.2d 26 (1982); Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (1980).See footnote 1 1 Thus, to the extent that the majority opinion might be wrongly construed, my concurrence has been appended to make clear the standing of our law on this issue.


Footnote: 1     1 We carved out a narrow exception to this rule in State ex rel. Blake v. Chafin, 183
W. Va. 269, 395 S.E.2d 513 (1990). Blake was presented to this Court as a mandamus proceeding in which the petitioner sought to compel a circuit court to review a habeas corpus  petition. We held:

            Although there may be occasions where the validity of one sentence has been upheld in review and the review of a separate conviction will not alter the circumstances of a defendant's confinement, a defendant is still entitled to a ruling on the merits when post-conviction habeas corpus relief is sought. A court cannot summarily dismiss a petition relying upon the concurrent sentence rule, since we refuse to adopt that rule.

Syl. Pt. 1, id.