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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 opinion, Bozeman 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 matters.

            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.