                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                    FILED
Harry G. Jarrell,                                                                  April 19, 2013
                                                                              RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.) No. 12-0415 (Raleigh County 11-C-211)

Marvin Plumley, Warden, Huttonsville Correctional Center,
Respondent Below, Respondent

                              MEMORANDUM DECISION

       Petitioner Harry G. Jarrell, pro se, appeals the order of the Circuit Court of Raleigh County,
entered March 13, 2012, summarily denying his petition for a writ of habeas corpus. The
respondent warden,1 by Scott E. Johnson, his attorney, filed a 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.

       Petitioner owned a 12-gauge shotgun he intended to give to his daughter when she became
old enough to shoot. However, when petitioner’s daughter grew up, she joined the Army and the
gun remained in storage.

       In 1982, petitioner was convicted of unarmed robbery. In 1991, petitioner was convicted of
second degree murder. As a felon, it has been illegal (as a misdemeanor) for petitioner to possess a
firearm since 1989. In 2000, the statute, West Virginia Code § 61-7-7, was amended to add the
offense of felony possession of a firearm, effective June 8, 2000.




1
  Pursuant to Rule 41(c) of the West Virginia Revised Rules of Appellate Procedure, the name of
the current public officer has been substituted as the respondent in this action.

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        In October of 2000, petitioner’s wife got into a dispute with his father. Petitioner’s father
announced that he wanted all of petitioner’s belongings out of his house. According to petitioner,
his father took the gun and placed it in his wife’s car. Petitioner and his wife recognized the need to
get rid of the gun as neither were allowed to have it.2 Petitioner pawned the gun on October 11,
2000.

        Petitioner was indicted on one count of felony possession of a firearm. A jury convicted
petitioner of the charge on November 7, 2001. The State then filed a recidivist information under
West Virginia Code §§ 61-11-18 et seq.. The same jury identified petitioner as being the same
person twice previously convicted of felonies. Petitioner was sentenced to two years for
possession, plus a recidivist life sentence, to run consecutively. Petitioner’s direct appeal was
refused on March 27, 2003.

        Petitioner filed a petition for a writ of habeas corpus arguing that it was improper for the
circuit court to have imposed the recidivist sentence after he had already begun serving the two
years for possession. The circuit court granted relief by vacating the two year sentence for
possession but leaving in place the recidivist life sentence. Neither party appealed.

        Petitioner has filed subsequent petitions. In 2004, the circuit court summarily denied all
asserted grounds but one, for which it appointed habeas counsel.3 The circuit court subsequently
denied relief on the remaining issue.4 When petitioner appealed, this Court refused his petition.

        Petitioner filed the instant petition—his fourth—in 2011, alleging that habeas counsel was
ineffective in not raising the issue of whether the application of the 2000 amendment of West
Virginia Code § 61-7-7 violated the Ex Post Facto Clause of the United States and West Virginia
Constitutions. The circuit court summarily denied the petition in an order entered March 13, 2012.
The circuit court ruled, in pertinent part, as follows:

                  6.	   Nothing in the instant Petition indicates that counsel failed
                        to meet the Strickland test[5] or was otherwise deficient as it

2
    The record is not clear why petitioner’s wife was not allowed to have a firearm.
3
  Because petitioner was appointed counsel, this petition would be considered petitioner’s habeas
corpus omnibus proceeding. See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
4
 The issue was whether West Virginia Code § 61-7-7 is unconstitutionally vague in that it does
not provide how a convicted felon may lawfully divest himself of a firearm.
5
  “In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by
the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” Syl. Pt. 5, State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995).
                                                   2
                       relates to West Virginia Code § 61-7-7, the statute regarding
                       possession of firearms by convicted felons. The Petitioner
                       provides no specific factual support as to any errors
                       allegedly committed by his habeas counsel, and offers only a
                       “mere recitation” of the ineffective assistance of counsel
                       ground with no discussion of counsel’s performance, as
                       required by Losh.

               7.	     The Petitioner’s claim that convictions occurring prior to the
                       1989 enactment and 2000 amendment of the statute could
                       not be used to convict him as a felon in possession of a
                       firearm is without merit. Prior versions of West Virginia
                       Code § 61-7-7 had no effect on Petitioner’s conviction under
                       the statute in 2001, when the Petitioner unquestionably had
                       been convicted of two prior felonies and illegally possessed
                       a firearm. The Petitioner was therefore properly convicted of
                       the third felony pursuant to the statute as it was in effect at
                       that time. In light of this conclusion, any arguments relating
                       to the quality of the crimes or prior restoration of Petitioner’s
                       rights are of no import.

       We review a circuit court’s order summarily denying a habeas petition under the following
standard:

               In reviewing challenges to the findings and conclusions of the circuit
               court in a habeas corpus action, we apply a three-prong standard of
               review. We review 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 are subject to a de
               novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

        On appeal, petitioner concedes that the respondent warden’s argument that there has been
no ex post facto violation would be correct except that “this is not a normal case.” Petitioner asserts
that when he was released on parole in 1998, he was told that being a felon in possession of a
firearm was only a misdemeanor6 and, therefore, he was entitled to particularized notice of the
legislature’s enactment in 2000 of the felony offense. See Lambert v. California, 355 U.S. 225
(1957) (holding, under due process grounds, that a requirement that felons register with the chief
of police if they remain in Los Angeles for more than five days was unconstitutional as applied


6
  At trial, petitioner’s parole officer testified that she informed him in 1998 that he was not
allowed to have a firearm. In the trial excerpt petitioner included in the record on appeal, the parole
officer was not asked whether she informed petitioner of the offense’s classification.
                                                  3
when the felon was not on notice that she was to register). The respondent warden distinguishes
Lambert on the ground that it applies to only registration offenses, citing, inter alia, United States
v. Shelton, 325 F.3d 553, 564 (5th Cir.) (holding Lambert inapplicable because “[p]ossession of a
firearm is active, not passive, conduct.”), cert denied., 540 U.S. 916 (2003). After careful
consideration of the parties’ arguments, this Court finds that Lambert is distinguishable from
petitioner’s case. The Court concludes that the circuit court did not abuse its discretion in
summarily denying the petition.

        For the foregoing reasons, we find no error in the decision of the Circuit Court of Raleigh
County and affirm its order, entered March 13, 2012, summarily denying petitioner’s petition for a
writ of habeas corpus.

                                                                                           Affirmed.


ISSUED: April 19, 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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