                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


 Thomas Shrader,
                                                                                   FILED
 Petitioner Below, Petitioner                                                     May 17, 2013

                                                                             RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

 vs.)       No. 12-0982 (McDowell County 11-C-186)                             OF WEST VIRGINIA



 State of West Virginia and McDowell County Circuit

 Court, Respondents Below, Respondents


                              MEMORANDUM DECISION

        Petitioner Thomas Shrader, pro se, appeals the order of the Circuit Court of McDowell
County, entered May 11, 2012, denying his petition for a writ of habeas corpus or, in the
alternative, coram nobis. Respondent State of West Virginia, by Andrew D. Mendelson, its
attorney, filed a summary response to which petitioner filed a reply.

       The 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.

        In 1975, petitioner was charged in Nos. 75-8-3, 75-8-4, and 75-8-19. In Nos. 75-8-3 and -4,
petitioner was charged with murder. In No. 75-8-19, petitioner was charged with malicious
wounding. On January 20, 1976, petitioner pled guilty, in the first degree, on the two counts of
murder and pled guilty to the reduced charge of unlawful wounding. The circuit court imposed two
life sentences, with mercy, along with a twelve-month sentence in jail on the unlawful wounding
conviction. The sentences were concurrent.

        Petitioner subsequently filed a petition for a writ of habeas corpus and was provided with a
hearing in June of 1976, where he states that he was represented by appointed counsel. Habeas
relief was denied. In 1984, petitioner was provided with an omnibus habeas corpus hearing after
which relief was again denied.1
        1
          In its May 11, 2012 order denying his instant petition, the circuit court stated that
petitioner also filed a motion for a reduction of sentence in 1989, which was denied by an order
entered March 27, 1990. In the order denying the motion, the circuit court stated that “review of
the relevant records indicates that the defendant had counsel, understood the sentencing procedure,
and the content of the sentencing procedure.”

                                                 1
          Petitioner was released on parole on December 23, 1993. In 1999, petitioner completed his
parole.

       In June of 2010, petitioner was charged by a federal grand jury of being a felon in
possession of a firearm. Subsequently, petitioner was found guilty of constructive possession of
firearms. Petitioner was sentenced under the Armed Career Criminal Act to 235 months in federal
prison with five years of probation. Petitioner’s record of three violent felonies allowed for this
sentence to be imposed. Petitioner is currently incarcerated at United States Penitentiary-Lompoc
in Lompoc, California.

         On October 11, 2011, petitioner filed a petition for a writ of habeas corpus or, in the
alternative, coram nobis in the circuit court. Petitioner alleged the following grounds for relief:
(1) petitioner believed in 1976 that he was pleading guilty to two felonies and one misdemeanor,
not to three felonies;2 (2) there have been changes in the law since 1976 favorable to petitioner; (3)
the indictments against petitioner in Nos. 75-8-3, 75-8-4, and 75-8-19 were fatally flawed; and (4)
ineffective assistance of trial counsel.

        In its order entered May 11, 2012, the circuit court denied the petition. After addressing
petitioner’s various claims, the circuit court concluded as follows:

                          This Court finds that [petitioner]’s Petition for Habeas
                 Corpus fails for many reasons. The most important reason that
                 [petitioner]’s Habeas Petition fails is because this Court lacks
                 jurisdiction to hear the case. [Petitioner]’s Habeas Petition is moot.
                 He has served his time and been paroled and discharged from his
                 parole for the crimes he committed against the [S]tate of West
                 Virginia. He is no longer in the [S]tate of West Virginia’s custody,
                 he is a federal prisoner in the [S]tate of California.[ 3]

                        [Petitioner]’s Habeas Petition also fails because this Court
                 finds that all the issues involved in his case have been finally

          2
          Unlawful wounding is a felony under West Virginia Code § 61-2-9. Petitioner alleges
that he thought he was pleading to a misdemeanor. However, as the State notes, at the plea hearing,
the circuit court asked petitioner, “You understand the consequences of your pleas?” Petitioner
answered, “Yes, sir, your Honor. I do.”
          3
          While it is an open question in West Virginia whether convicts on probation or parole
may seek relief in habeas corpus, petitioner clearly may not do so because he completed his parole
in the state system in 1999. However, even though coram nobis no longer exists in purely civil
cases, “it may still be available in a post-conviction context when the petitioner is not
incarcerated.” State ex rel. Richey v. Hill, 216 W.Va. 155, 162 n. 10, 603 S.E.2d 177, 184 n. 10
(2004).

                                                   2
               adjudicated or waived. He has had at least three prior opportunities
               to attack his unlawful wounding conviction.

                      [Petitioner]’s claim[s] of faulty indictments and
               prosecutorial misconduct also fail. The case law provides that the
               indictment does not have to quote the statutory language exactly.

                       [Petitioner]’s final claim that he had ineffective counsel also
               fails. He was deemed competent by several evaluations. He also told
               the court that his plea was free and voluntary. He can also not prove
               that with other counsel the outcome would have been different.

        Even if the writ of coram nobis still exists in the post-conviction context, it is only of
“limited scope,” not recognizing numerous errors that are not considered fundamental in nature.
State ex rel. Richey v. Hill, 216 W.Va. 155, 162 n. 10, 603 S.E.2d 177, 184 n. 10 (2004).4 On
appeal, petitioner argues that the indictments against him in Nos. 75-8-3, 75-8-4, and 75-8-19
should be dismissed with prejudice. The State argues that the circuit court did not err in denying
the petition because all the issues raised in this case—petitioner’s third post-conviction
proceeding—have been finally adjudicated or waived. The State notes that petitioner has had at
least three prior opportunities to challenge his unlawful wounding conviction and/or any issues
related to the indictments.

        Petitioner does not dispute that he had habeas hearings in both 1976 and 1984, nor does he
allege that those hearings were somehow procedurally deficient. With respect to the 1976 hearing,
petitioner even indicates that he was represented by appointed counsel. Thus, petitioner had an
obligation to raise “all matters known or which with reasonable diligence could have been
known.” Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (holding that a prior
omnibus habeas corpus hearing allows the doctrine of res judicata to bar subsequent proceedings).5

Therefore, after careful consideration, this Court concludes that the doctrine of res judicata bars
the instant petition and that the circuit court did not err in denying it.6

       4
          See also United States v. Mayer, 235 U.S. 55, 69 (1914) (Coram nobis is available only to
correct errors “of the most fundamental character; that is, such as rendered the proceeding itself
irregular and invalid.”).
       5
          Losh allows for an exception to the principles of res judicata for changes in the law,
favorable to the petitioner, which may be retroactively applied. Upon a review of the petition, this
Court finds that petitioner cited no case law that comes within this exception. Specifically,
petitioner argued that decisions holding that an indictment must set forth the essential elements of
the offense charged represent a change in the law since 1976 favorable to him. However, this Court
has held the same as far back as 1966. See Syl. Pt. 1, State ex rel. Combs v. Boles, 151 W.Va. 194,
151 S.E.2d 115 (1966) (“In order to lawfully charge an accused with a particular crime it is
imperative that the essential elements of that crime be alleged in the indictment.”).
6
  Even if the issue were reached, this Court notes that the indictments in Nos. 75-8-3, 75-8-4, and
                                                 3
       For the foregoing reasons, we find no error in the decision of the Circuit Court of
McDowell County and affirm its order, entered May 11, 2012, denying the petition for a writ of
habeas corpus or, in the alternative, coram nobis.


                                                                                           Affirmed.

ISSUED: May 17, 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




75-8-19 were not flawed. First, “[i]n this State there is no such thing as an indictment for murder in
the first or second degree; the indictment is for murder, and it depends upon the proof, whether it is
in the first or second degree.” Syl. Pt. 4, State v. Schnelle, 24 W.Va. 767 (1884) (emphasis in
original). Second, with respect to the indictment in No. 75-8-19, this Court agrees with the State
that a careful reading of the indictment indicates that petitioner’s assertion that the names therein
were transposed is incorrect.
                                                  4
