No. 32784 - Shawn Pethel, aka Shawn Pethtel v.Thomas McBride, Warden, Mount
Olive Correctional Complex
Maynard, Justice, concurring:
Despite the assertions of the dissenting opinion to the contrary, I believe that
the majority opinion is well grounded in the law.
I disagree with the dissenting opinion's contention that the United States
Supreme Court's decision in Alabama v. Bozeman,
533 U.S. 146, 121 S.Ct. 2079, 150
L.Ed.2d 188 (2001), controls the outcome of the instant case. As explained in the majority
involved the direct appeal of a criminal conviction. In contrast, the
instant case involves a post-conviction habeas proceeding. As correctly determined by the
majority opinion, a violation of the Interstate Agreement on Detainers Act
(IAD) is not
cognizable in a post-conviction habeas action because the IAD does not pre-date the habeas
statute, and does not involve illegal sentencing, constitutional protections or jurisdictional
The dissenting opinion, however, disputes the majority's reasoning that a
violation of the IAD is not cognizable in a post-conviction habeas action because the IAD
post-dates the habeas statute. According to the dissenting opinion, such reasoning is
illogical and contrary to what the Legislature intended. Nevertheless, the plain language of
the post-conviction habeas statute, W.Va. Code § 53-4A-1(a) (1967), appears to indicate that
this is exactly what the Legislature intended. This language provides that,
Any person convicted of a crime and incarcerated under sentence of
imprisonment therefor who contends that . . . the conviction or sentence is
otherwise subject to collateral attack upon any ground of alleged error heretofore
available under the common-law or any statutory provision of this
State, may, without paying a filing fee, file a petition for a writ of habeas
corpus ad subjiciendum[.] (Emphasis added).
Thus, as found in the majority opinion based on this language, because the IAD's anti-
shuttling provision was not heretofore available under the common law or statute, it is not
subject to collateral attack under the post-conviction habeas statute.
In conclusion, the majority opinion is not result-oriented. Rather, it is a careful
and thorough legal analysis, and its holdings and conclusions are supported by the law.
Therefore, I concur.