                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State of West Virginia ex rel. Kurt Ray,                                            FILED
                                                                                   June 10, 2013
Petitioner Below, Petitioner                                                  RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

vs) No. 11-1787 (Brooke County 08-F-4)                                          OF WEST VIRGINIA




Ronald E. Wilson, Judge,
Respondent Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Kurt Ray, pro se, appeals the Circuit Court of Brooke County’s order entered
November 21, 2011, denying petitioner’s petition for writ of mandamus against respondent,
seeking his case files for use in a potential future habeas corpus petition. The Honorable Ronald
E. Wilson, by counsel Andrew D. Mendelson, filed a response in support of the circuit court’s
order.

       This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

      On March 18, 2009, the circuit court accepted a plea bargain from petitioner. The plea
agreement included a provision that stated as follows:

       The Defendant agrees that he is forever waiving his right to challenge the validity
       of this plea agreement or to attempt to set aside or nullify his conviction herein by
       habeas corpus action, in state or federal court, or to otherwise challenge the
       validity of his convictions in any legal proceedings of any nature in any court. It is
       the intention of the parties hereto that the Defendant’s convictions be permanent
       and final.

(emphasis in original). The plea bargain included guilty pleas for burglary, threatening to kidnap,
kidnapping, wanton endangerment, and assault during the commission of a felony. Two sexual
assault charges were dropped. Petitioner was later sentenced to a total term of incarceration of
thirty-eight years to life. Notwithstanding the terms of his plea bargain, petitioner appealed the
sentence and this Court refused his appeal on March 4, 2010.

      Thereafter, petitioner filed a writ of mandamus before the Circuit Court of Brooke
County, seeking a copy of his criminal file, which he argues he had not received up to that date.

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Petitioner states it is his intent to petition the court for habeas corpus relief on the grounds that he
was provided ineffective trial counsel and wished to obtain his case documents for that purpose.
By order dated November 21, 2011, the circuit court denied petitioner’s writ of mandamus,
citing the plea bargain prohibiting petitioner from seeking habeas relief. The circuit court stated
that petitioner did not articulate any reason for requesting the records, he did not assert any errors
or violations of law to necessitate the production of the documents, and did not acknowledge the
plea agreement in his request. The circuit court opined that petitioner is not entitled to a writ of
mandamus, citing to Syllabus Point 1 of Hall v. Staunton, 55 W. Va. 684, 47 S.E. 265 (1904),
which states as follows:

        The extraordinary writ of mandamus will never be issued in any case where it is
        unnecessary, or where, if issued, it would prove unavailing, fruitless, and
        nugatory. The court will not compel the doing of a vain thing. A mere abstract
        right, unattended by any substantial benefit to the party asking mandamus, will
        not be enforced by the writ.

     On appeal, petitioner argues that the circuit court erred in denying its petition for a writ of
mandamus.

        “Mandamus is a proper remedy to compel tribunals and officers exercising
       discretionary and judicial powers to act, when they refuse so to do, in violation of
       their duty, but it is never employed to prescribe in what manner they shall act, or
       to correct errors they have made.” Syllabus Point 1, State ex rel. Buxton v.
       O'Brien, 97 W.Va. 343, 125 S.E. 154 (1924).

Syl. Pt. 6, State ex rel. Affiliated Const. Trades Found. v. Vieweg, 205 W.Va. 687, 520 S.E.2d
854 (1999).

       “‘A writ of mandamus will not issue unless three elements coexist—(1) a clear
       legal right in the petitioner to the relief sought; (2) a legal duty on the part of
       respondent to do the thing which the petitioner seeks to compel; and (3) the
       absence of another adequate remedy.’ Syllabus Point 1, State ex rel. Billy Ray C.
       v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex rel.
       Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).” Syllabus
       point 2, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995).

Syl. Pt. 2, Ewing v. Bd. of Educ. of Cnty. of Summers, 202 W.Va. 228, 503 S.E.2d 541 (1998).

        West Virginia Code § 53-4A-4(a) provides for the circumstances under which a circuit
court should order production of petitioner’s file for use in a habeas petition:

               If it shall appear to the court that the record in the proceedings which
       resulted in the conviction and sentence . . . are necessary for a proper
       determination of the contention or contentions and grounds (in fact or law)
       advanced in the petition, the court shall, by order entered of record, direct the
       State to make arrangements for copies of any such record or records, or all of such

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       records, or such part or parts thereof as may be sufficient, to be obtained for
       examination and review by the court, the state and the petitioner.

(emphasis supplied).

       The standard of appellate review of a circuit court's order granting relief through
       the extraordinary writ of mandamus is de novo. Syllabus Point 1, Staten v. Dean,
       195 W.Va. 57, 464 S.E.2d 576 (1995). We review a circuit court's underlying
       factual findings under a clearly erroneous standard. 195 W.Va. at 62, 464 S.E.2d
       at 581. We also review conclusions of law under a clearly erroneous standard.

O’Daniels v. City of Charleston, 200 W.Va. 711, 715, 490 S.E.2d 800, 804 (1997).

        Petitioner argues that obtaining a copy of his file is the first step in the process of
assessing the need to seek a writ of habeas corpus. Our review of the record reflects no clear
error by the circuit court in denying petitioner’s motion for a writ of mandamus. Petitioner is
entitled to a copy of the record for his criminal case if it appears to the circuit court that the
record is necessary for his petition for writ of habeas corpus. W. Va. Code § 54-4A-4(a). Here,
petitioner has not submitted a petition for writ of habeas corpus, so he is not yet entitled to his
record.

       For the foregoing reasons, we affirm the circuit court’s order.

                                                                                        Affirmed.

ISSUED: June 10, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis
Justice Margaret L. Workman




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