“[B]ecause the appellant has already been released, his request for a writ of habeas corpus is moot.”
How later courts described this case
- “[B]ecause the appellant has already been released, his request for a writ of habeas corpus is moot.”
Written by the judges who cited it.
The opinion
FILED
September 15, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
William Christopher Jordan,
Petitioner Below, Petitioner
vs.) No. 22-0161 (Braxton County 21-P-26)
Harvey Hawkins, Superintendent,
Central Regional Jail,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner William Christopher Jordan appeals the January 31, 2022, order of the Circuit
Court of Braxton County denying his petition for a writ of habeas corpus and denying his request
to convert his petition to a petition for a writ of coram nobis. 1,2 Upon our review, finding no
substantial question of law and no prejudicial error, we determine that oral argument is
unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R. App. P. 21(c).
In 2004, pursuant to a guilty plea, petitioner was convicted of first-degree sexual abuse in
Case No. 04-F-19. During the plea colloquy, the circuit court asked petitioner whether he
understood that lifetime sex offender registration was a consequence of being convicted of first-
degree sexual abuse:
THE COURT: . . . [O]nce you’re released or if you’re put on
probation or you’re put on home confinement, you, for the rest of your life, will
1
Petitioner appears by counsel Jason T. Gain. Respondent Harvey Hawkins,
Superintendent of the Central Regional Jail, appears by counsel Attorney General Patrick Morrisey
and Assistant Attorney General Andrea Nease Proper.
2
Petitioner’s counsel filed a brief in accordance with Rule 10(c)(10)(b) of the West
Virginia Rules of Appellate Procedure, which provides, in part, that when “counsel is ethically
compelled to disassociate from any assignments of error that the client wishes to raise on appeal,
counsel must file a motion requesting leave for the client to file a pro se supplemental brief raising
those assignments of error.” Per this Rule, petitioner’s counsel filed a motion requesting leave for
petitioner to file a pro se supplemental brief. The motion was granted, and petitioner timely filed
his pro se brief.
1
have to register as a sexual offender.
Do you understand that?
THE DEFENDANT: Yes, sir, I do.
....
THE COURT: . . . The [c]ourt further finds in this matter that the
Defendant understands his rights and obligation to register as a sexual offender for
the remainder of his life.
Upon accepting the plea, the court sentenced petitioner to a term of incarceration for a period of
one to five years, but the court suspended the sentence and ordered that he be placed in the Anthony
Correctional Center for Youthful Offenders (“Anthony Center”) 3 for six months to two years. At
a hearing in 2006, after petitioner completed the Anthony Center’s program, the circuit court
placed petitioner on probation for five years, again reminding petitioner of his sex offender
registration obligation. The court instructed, “[T]his is a lifetime registration and will not be
released by you being released from probation, parole or a supervised release.” Petitioner did not
appeal his conviction or sentence. Ultimately, petitioner completed his term of probation.
In March 2021, petitioner was charged in a criminal information in Case No. 21-F-9 with
breaking and entering and possession of a firearm by a prohibited person. Petitioner pleaded guilty
to these offenses and was sentenced to one to ten years of incarceration for the offense of breaking
and entering and five years of incarceration for the offense of possession of a firearm by a
prohibited person. The court ordered that the sentences run consecutively.
In July 2021, petitioner, pro se, filed a petition for a writ of habeas corpus in the circuit
court, arguing that in Case No. 04-F-19 he received ineffective assistance of counsel and that the
evidence was insufficient to support his conviction. He elaborated, “[Counsel] gave me false
information. He gave me wrong advi[c]e. He came to my hearings drunk.” The circuit court
appointed counsel to represent petitioner.
In December 2021, the circuit court ordered briefing on the issue of whether petitioner
could obtain habeas relief despite no longer being incarcerated for first-degree sexual abuse. In
response, petitioner asserted that “his current confinement [in Case No. 21-F-19] may end if the
[c]ourt would grant a Rule 35 (b) motion and place him with an approved drug treatment program.”
He continued, “However, [petitioner] is unable to secure such placement because of his status as
3
The Anthony Center is a facility “for the housing of young adult offenders convicted of
or pleading guilty to violation of law before courts with original jurisdiction, who are amenable to
discipline other than in close confinement,” that is intended “to give better opportunity to young
adult offenders for reformation and encouragement of self-discipline.” W. Va. Code § 25-4-1.
When an offender successfully completes the center’s training program, “[t]he offender is then
eligible for probation for the offense the offender was convicted of or plead guilty to and the judge
of the court shall immediately place the offender on probation.” Id. § 25-4-6.
2
a prior sexual offender from case number 04-F-19.” He claimed that he had “not attacked his
conviction in [Case No.] 04-F-19 earlier because it ha[d] not directly interfered with a request for
an alternative sentence in a criminal case before filing the instant petition.” Acknowledging that
his success through the petition was based on “a bold extension of current case law and [that] the
likelihood of success for him . . . by relying on that argument [was] dim,” petitioner requested that
the petition be converted to a coram nobis petition.
By order entered on January 31, 2022, the circuit court denied the request for habeas relief.
The court found that while petitioner was currently incarcerated, his incarceration was pursuant to
convictions in Case No. 21-F-9, not Case No. 04-F-19. The court determined that petitioner had
completed his sentence in Case No. 04-F-19 and that petitioner, consequently, was not entitled to
habeas relief. The court went on to deny petitioner’s request to convert the habeas petition to a
coram nobis petition, finding that the record did not “demonstrate sufficient extraordinary
circumstances to warrant converting this matter.” The court justified its decision as follows:
The Petitioner did not appeal his conviction and did not challenge his
conviction until the filing of the instant habeas petition nearly 17 years after the
conviction and 15 years after he completed the Anthony Center and was placed on
probation. The record that is before the [c]ourt does not[] “demonstrate a valid
reason for not attacking the conviction earlier.” The Petitioner states his status as a
convicted sex offender has made placement in a drug rehabilitation program
difficult, and is thus impacting his opportunities for an alternative sentence in Case
21-F-9. . . . The [c]ourt does not believe that the inability to gain admission to a
drug rehabilitation program is a denial of a fundamental constitutional right.
Petitioner now appeals the January 31, 2022, order. Although he asserts only one
assignment of error, he essentially makes two arguments across his two briefs: (1) He contends
that the circuit court erred by denying his habeas petition, and (2) he claims the circuit court erred
by denying his request that his habeas petition be converted to a coram nobis petition.
In support of his first argument, petitioner contends that the circuit court denied his
requested relief in a “quasi-summary judgment fashion” by ruling after reviewing the transcripts
from Case No. 04-F-19, by failing to comply with Rule 4 of the Rules Governing Post-Conviction
Habeas Corpus Proceedings in West Virginia, 4 and by failing to recognize that the plea colloquy
4
Rule 4 provides, in relevant part:
(b) Initial Review; Appointment of Counsel to File Amended Petition. — If
the petition is not transferred, the circuit court shall promptly conduct an initial
review of the petition. If, upon initial review of the petition and any exhibits in
support thereof, the court determines that the petitioner may have grounds for relief
but the petition, as filed, is not sufficient for the court to conduct a fair adjudication
of the matters raised in the petition, the court shall appoint an attorney to represent
the petitioner’s claims in the matter, provided that the petitioner qualifies for the
appointment of counsel under Rule 3(a). The court may order appointed counsel to
3
was not dispositive of whether petitioner understood that he would have to register as a sex
offender for life. Petitioner asserted that when he entered his plea, he was led to believe that he
would only have to register as a sex offender for ten years, not for life. We apply a three-prong
standard of review to the denial of his habeas petition, reviewing “the final order and the ultimate
disposition under an abuse of discretion standard; the underlying factual findings under a clearly
erroneous standard; and questions of law . . . de novo.” Syl. Pt. 1, in part, Anstey v. Ballard, 237
W. Va. 411, 787 S.E.2d 864 (2016) (quoting Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771
(2006)).
We find no error in the dismissal of petitioner’s habeas petition. West Virginia Code § 53-
4A-1(a) provides that “[a]ny person convicted of a crime and incarcerated under sentence of
imprisonment therefor” may petition the court for habeas relief. We have explained that West
Virginia Code § 53-4A-1(a) “establishe[s] a jurisdictional base for habeas relief.” Cline v.
Mirandy, 234 W. Va. 427, 433, 765 S.E.2d 583, 589 (2014). We have elaborated, “[A]n inmate’s
right to petition for post-conviction habeas corpus relief ends when he or she is released from
incarceration.” Id. at 434, 765 S.E.2d at 590. It is undisputed that petitioner is not currently
incarcerated for first-degree sexual abuse. Further, the crimes for which he is presently
incarcerated are wholly unrelated to his prior conviction for first-degree sexual assault. 5
file an amended petition for post-conviction habeas corpus relief within the time
period set by the court.
(c) Evaluation for Summary Dismissal; Contents of Summary Dismissal
Order. — The petition shall be examined promptly by the judge to whom it is
assigned. The court shall prepare and enter an order for summary dismissal of the
petition if the contentions in fact or law relied upon in the petition have been
previously and finally adjudicated or waived. The court’s summary dismissal order
shall contain specific findings of fact and conclusions of law as to the manner in
which each ground raised in the petition has been previously and finally adjudicated
and/or waived. If the petition contains a mere recitation of grounds without
adequate factual support, the court may enter an order dismissing the petition,
without prejudice, with directions that the petition be refiled containing adequate
factual support. The court shall cause the petitioner to be notified of any summary
dismissal.
(d) Order to File Answer. — For all petitions not dismissed summarily as
provided in Rule 4(c), the court shall order the respondent to file an answer or other
pleading within the period of time fixed by the court or to take such other action as
the court deems appropriate. A copy of the order directing that an answer be filed
shall be served upon the prosecuting attorney of the county wherein the petition
will be heard.
5
We observe that the Court has considered a habeas petition challenging a petitioner’s
confinement as to a particular offense when the petitioner has discharged his sentence as to that
offense but remains incarcerated as a recidivist. See Powers v. Plumley, No. 14-1169, 2016 WL
4
Accordingly, his petition is moot, and the circuit court did not abuse its discretion by denying the
petition. See Kemp v. State, 203 W. Va. 1, 2, 506 S.E.2d 38, 39 (1997) (“[B]ecause the appellant
has already been released, his request for a writ of habeas corpus is moot.”). 6
Petitioner also argues on appeal that the circuit court committed reversible error by refusing
to convert his habeas petition to a coram nobis petition. We review this alleged error for an abuse
of discretion. See State v. Hutton, 235 W. Va. 724, 727, 776 S.E.2d 621, 624 (2015) (“We review
the final order and the ultimate disposition under an abuse of discretion standard, and we review
the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law
are subject to a de novo review.” (quoting State v. Allen, 208 W. Va. 144, 150, 539 S.E.2d 87, 93
(1999))).
We find no merit to petitioner’s argument. We have held that relief in coram nobis is
available “only in extraordinary circumstances and if the petitioner shows that (1) a more usual
remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) there
exists a substantial adverse consequence from the conviction; and (4) the error presents a denial of
a fundamental constitutional right.” Hutton, 235 W. Va. at 725, 776 S.E.2d at 623, Syl. Pt. 5, in
part. We agree with the circuit court’s conclusion that petitioner failed to demonstrate a valid
reason for not attacking the conviction sooner. We find that, in this instance, conversion of the
petition would have been a futile effort. Accordingly, we conclude that the circuit court did not
abuse its discretion by refusing to convert the habeas petition to a coram nobis petition. Cf.
Johnson v. Pinson, 244 W. Va. 405, 415, 854 S.E.2d 225, 235 (2020) (“[I]t is not an abuse of
discretion to deny a motion to amend if the proposed amendment would be futile[.]” (quoting
Chegwidden v. Evenson, 863 N.W.2d 843, 850 (N.D. 2015))).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 15, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
765820, at *2 n.5 (W. Va. Feb. 26, 2016) (memorandum decision) (“Although petitioner
discharged his sentence on the instant conviction [for robbery], petitioner is still incarcerated as a
result of his recidivist conviction. Therefore, petitioner’s habeas petition can be presented to this
Court.”). Petitioner is not currently incarcerated as a recidivist, and so Powers does not permit
review of his habeas petition in this instance.
6
Having determined that the habeas petition was moot, we need not consider petitioner’s
procedural challenges.
5