                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Kenneth J. Manns,                                                                   FILED
                                                                                  October 4, 2013
Petitioner Below, Petitioner                                                  RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

vs.) No. 12-1194 (Mercer County 07-C-25)                                        OF WEST VIRGINIA




David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION

        Petitioner Kenneth J. Manns, appearing pro se, appeals the order of the Circuit Court of
Mercer County, entered September 27, 2012, denying his motions for summary judgment in his
habeas corpus action. Respondent Warden, by counsel Laura Young, filed a summary response.
Petitioner filed a reply.1

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented in the parties’ written briefs and the record on appeal, 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 that petitioner’s appeal is
premature. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of
Appellate Procedure.

        On June 5, 1997, petitioner was convicted of first degree murder and first degree sexual
assault. The circuit court sentenced petitioner to life in prison without mercy on the murder
conviction and fifteen to thirty-five years in prison on the sexual assault conviction, to be served
concurrently. Petitioner appealed to this Court which entered a refusal order on September 9, 1998.

       Petitioner filed a petition for writ of habeas corpus on August 23, 1999. Petitioner was
afforded an omnibus hearing on June 2, 2000. The circuit court denied the petition on July 31,
2000. This Court refused petitioner’s appeal of the denial of habeas relief on May 21, 2001.

       Subsequently, on January 10, 2007, petitioner filed the instant action pursuant to Syllabus
Point 6 of In the Matter of: Renewed Investigation of State Police Crime Laboratory, Serology
Div. (“Zain III”), 219 W.Va. 408, 633 S.E.2d 762 (2006).2 Petitioner was appointed counsel.

       1
         Petitioner also filed a motion to include additional authorities pursuant to Rule 10(i) of
the Rules of Appellate Procedure. Because of this Court’s disposition of petitioner’s appeal, see
infra, we deny the motion as moot.
       2
           In Syllabus Point 6 of In the Matter of: Renewed Investigation of State Police Crime
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Counsel filed an Anders brief3 on July 19, 2007, and later withdrew from the case. New counsel
was appointed. On December 6, 2011, the circuit court allowed the second attorney to withdraw,
allowed petitioner to proceed pro se, and appointed a third attorney to serve in an advisory
capacity.

        On May 24, 2012, and July 9, 2012, petitioner filed motions for summary judgment on his
habeas claims. The circuit court denied the motions in an order entered September 27, 2012. The
circuit court found that genuine issues of material fact exist: “There are questions to be answered
and facts to be determined by a trier of fact. Therefore, this case is not appropriate to be disposed of
with summary judgment.”4

        On appeal, petitioner disputes the circuit court’s finding that genuine issues of material fact
exist and argues that he is entitled to judgment as a matter of law. Respondent states that petitioner
is not entitled to judgment as a matter of law and further argues that the circuit court’s order
denying petitioner’s motions for summary judgment was an interlocutory order and, therefore,
petitioner’s appeal should be dismissed as premature. In his reply brief, petitioner counters that the
circuit court’s order denying his motions approximates a final order in its nature and effect.

       “An order denying a motion for summary judgment is merely interlocutory, leaves the case
pending for trial, and is not appealable except in special instances in which an interlocutory order
is appealable.” Syl. Pt. 8, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160,
133 S.E.2d 770 (1963). An interlocutory order can be appealed if it is certified pursuant to Rule
54(b) of the West Virginia Rules of Civil Procedure. “The key to determining if an order is final is
not whether the language from Rule 54(b) . . . is included in the order, but is whether the order
approximates a final order in its nature and effect.” Syl. Pt. 1, in part, State ex rel. McGraw v. Scott
Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).


        In arguing that the circuit court’s order approximates a final order in its nature and effect,
petitioner cites to National Union Fire Insurance Co. of Pittsburgh v. Miller, 228 W.Va. 739, 724

Laboratory, Serology Div. (“Zain III”), 219 W.Va. 408, 633 S.E.2d 762 (2006), this Court held as
follows:

                 A prisoner who was convicted between 1979 and 1999 and against
                 whom a West Virginia State Police Crime Laboratory serologist,
                 other than Fred Zain, offered evidence may bring a petition for a
                 writ of habeas corpus based on the serology evidence despite the
                 fact that the prisoner brought a prior habeas corpus challenge to the
                 same serology evidence, and the challenge was finally adjudicated.
        3
            See Anders v. California, 386 U.S. 738 (1967).
        4
         The case had been scheduled for “trial” on September 10, 2012. However, petitioner filed
a motion for a continuance on September 6, 2012, which the circuit court granted.
                                                   2
S.E.2d 343 (2012). In National Union, not only did the circuit court deny the insurer’s motion for
summary judgment, but the court also granted judgment as a matter of law on the coverage issue to
the non-moving party. The instant case is distinguishable because, while the circuit court denied
petitioner’s motions, the court did not proceed to enter judgment in Respondent’s favor. Instead,
the circuit court determined that “this case is not appropriate to be disposed of with summary
judgment” and found that “[t]here are questions to be answered and facts to be determined by a
trier of fact.” (emphasis added). After careful consideration, this Court dismisses petitioner’s
appeal as premature.

                                                                         Dismissed as premature.

ISSUED: October 4, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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