                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                    FILED
Warren Franklin and Charles Franklin,                                             October 4, 2013
                                                                              RORY L. PERRY II, CLERK
Petitioners Below, Petitioners                                              SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs) No. 12-1288 (Kanawha County 02-MISC-160 and 02-MISC-163)

Jim Rubenstein, Commissioner, West Virginia

Division of Corrections, and David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondents Below


                               MEMORANDUM DECISION
        Petitioners Warren Franklin and Charles Franklin, appearing pro se, appeal the order of the
Circuit Court of Kanawha County, entered September 13, 2012, denying their identical
consolidated petitions for a writ of habeas corpus arising out of prison disciplinary proceedings
that resulted from an October 2, 2002 demonstration at Mt. Olive Correctional Complex (“Mt.
Olive”). 1 Respondent Corrections Officials, by counsel John H. Boothroyd, filed a summary
response. Petitioners 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.

       Petitioners are two brothers who are inmates at Mt. Olive. Their prison history includes
escaping from a prison in the State of Maryland and committing murder at the West Virginia State
Penitentiary when it was located in Moundsville, West Virginia.

       On October 2, 2002, a major demonstration occurred at Mt. Olive. The warden was advised
of a demonstration started in the main yard by inmates at 8:30 a.m. At 9:17 a.m., the main yard was
ordered closed. A Code Yellow-Emergency Count was issued at 9:30 a.m. Inmates were given an
opportunity to return to their cells. Nonetheless, 278 inmates refused to return to their cells and
remained in the main yard.2 The warden then issued a state of emergency which was approved by
the Commissioner of Corrections. The state of emergency remained in effect until October 17,
       1
           According to respondents, the identical petitions were consolidated by the circuit court.
       2
         Petitioners were not among the 278 inmates who were in the main yard. Petitioners were
in Birch Hall when Mt. Olive was locked down.
                                              -1­
2002.

        During the lockdown and subsequent investigation into the demonstration, petitioners were
placed in administrative segregation. During interviews, numerous inmates identified petitioners
as having helped instigate and plan the October 2, 2002 demonstration. After the state of
emergency was lifted, petitioners were issued violation reports charging them with
“demonstrations” under Division of Corrections (“DOC”) Policy Directive 325.00 which provided
that “[n]o inmate shall organize, participate in the organization of, or participate in a group
demonstration, protest, sit-down strike, ‘sick-out’, hunger strike, work stoppage or any other joint
demonstration, or attempt to do any of the above.” § 1.12.3

        Separate disciplinary proceedings were conducted against both petitioners on October 25,
2002. Petitioner Warren Franklin was found guilty of violating § 1.12 and was sentenced to
punitive segregation from October 2, 2002, to October 2, 2003 with a ninety-day loss of privileges
and six months loss of “good time” credit.4 Petitioner Charles Franklin was found guilty of being
the “key person/organizer” of the October 2, 2002 demonstration and was sentenced to eighteen
months of punitive segregation beginning October 2, 2002, with a ninety-day loss of all privileges
and a one year loss of “good time.”

        After their terms in punitive segregation, each petitioner was placed in administrative
segregation under Mt. Olive Operational Procedure # 3.31. Administrative segregation for
Petitioner Warren Franklin was necessary in part because there were unresolved issues with
inmate Russell Lassiter. According to his deposition testimony, Petitioner Warren Franklin
believed that Inmate Lassiter had set him up regarding the October 2, 2002 demonstration and that
placing him and Inmate Lassiter in the same general population would not be safe. Administrative
segregation for Petitioner Charles Franklin was necessary in part because he had written letters
that indicated his feud with Inmate Lassiter would end violently.

       On January 5, 2004, Mt. Olive Operational Procedure # 3.31 was replaced by Operational
Procedure # 3.36, the “Quality of Life” program. Petitioner Warren Franklin was placed at Level
Three of the “Quality of Life” program.5 Petitioner Warren Franklin completed Levels Three,
Four, and Five and was released into the general population of Mt. Olive in the spring of 2005.

        Petitioner Charles Franklin was also initially placed at Level Three of the “Quality of Life”
program. However, in October of 2004, he was found guilty of violating § 1.19 of DOC Policy
Directive 325.00, which prohibits the use and possession of drugs, intoxicants, or paraphernalia.
Petitioner Charles Franklin was found with a cup of red liquid giving off a strong odor. The liquid

        3
            The version of Policy Directive 325.00 then in effect was dated July 1, 2000.
        4
         “Good time” is a statutory commutation of an inmate’s sentence for good conduct based
on each day the inmate serves his sentence. See W .Va. Code §§ 28–5–27(b) and (c).
        5
            The “Quality of Life” program has five levels.

                                                 -2­
tested positive for alcohol content. Petitioner Charles Franklin was sentenced to sixty days of
punitive segregation and a sixty-day loss of all privileges.

        During the sixty-day loss of all privileges, Petitioner Charles Franklin made numerous
phone calls and was, therefore, found guilty of additional disciplinary violations in November of
2004. In April of 2005, Petitioner Charles Franklin made an unauthorized phone call using his
brother’s DOC number and was, therefore, found guilty of an additional disciplinary violation. As
a result of these disciplinary violations, Petitioner Charles Franklin was reduced from Level Three
to Level One of the “Quality of Life” program. However, subsequently, Petitioner Charles
Franklin completed the “Quality of Life” program and was released into the general population of
Mt. Olive in May of 2006.

        In April of 2002, petitioners filed identical petitions for a writ of habeas corpus seeking
immediate release from segregation and return to a pre-detention status with the expungement of
all disciplinary and administrative records since July 1, 2000. After each petitioner was released
back into the general population, they altered their demands to include monetary relief for lost
wages and pain and suffering. Petitioners were appointed counsel and were afforded the
opportunity to present witnesses and documentary evidence. By an order dated August 10, 2007
the circuit court allowed the parties the opportunity to submit proposed findings of fact and
conclusions of law.

        On September 13, 2012, the circuit court entered an order submitted by respondent. The
twenty-six page order contained numerous findings of fact and conclusions of law that addressed
petitioners’ various claims and found them to be without merit. The circuit court denied
petitioners’ petitions. Petitioners now appeal the circuit court’s September 13, 2012 order.

       We review the circuit court’s order denying the petitions 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, petitioners assert that their second attorney failed to submit proposed findings
of fact and conclusions of law as allowed by the August 10, 2007 order. Petitioners assert that they
attempted to communicate with their attorney to no avail. Petitioners also requested that the circuit
court appoint new counsel. The circuit court did not appoint new counsel; instead, it entered an
order denying the petitions that was proposed by respondents. Petitioners assert that they were not
served with a copy of the proposed order before it was entered. Petitioners argue that their due
process rights were violated by their second attorney’s failure to submit proposed findings of fact
and conclusions of law and by the circuit court’s failure to appoint them new counsel.

                                                -3­
        Respondents note that petitioners were represented by their first attorney up until the time
all evidence was submitted and that petitioners state that the first attorney performed his duties
professionally. The only task remaining for the second attorney was to review the transcripts and
propose findings of fact and conclusions of law on petitioners’ behalf. While the second attorney
did not submit proposed findings of fact and conclusions of law, respondents assert the circuit
court was fully capable of reviewing evidence, canvassing the law, and then applying the law to
the facts of this case. Respondents argue that the circuit court had a strong factual and legal basis to
deny the petitions. Respondents note that no general right to counsel exists in habeas cases that
challenge the terms and conditions of confinement. Respondents argue that the circuit court’s
order denying the petitions should be affirmed.

        “Failure to observe a constitutional right constitutes reversible error unless it can be shown
that the error was harmless beyond a reasonable doubt.” Syl. Pt. 5, State ex rel. Grob v. Blair, 158
W.Va. 647, 214 S.E.2d 330 (1975). Petitioners contend that their constitutional rights to due
process of law were violated by the manner in which their case was conducted after the submission
of all evidence.6 However, after reviewing the circuit court’s September 13, 2012 order that set
forth in detail the circuit court’s factual and legal basis for denying the petitions, this Court finds
that any error was harmless beyond a reasonable doubt because petitioners cannot demonstrate that
the outcome of their habeas cases would have been different even if their second attorney had
submitted proposed findings of fact and conclusions of law. 7 Therefore, after careful
consideration, this Court concludes that the circuit court did not abuse its discretion in denying the
petitions.

        Having reviewed the circuit court’s “Order Denying Petition for Writ of Habeas Corpus,”
entered September 13, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed
to attach a copy of the circuit court’s order to this memorandum decision.



       6
          In their reply brief, petitioners complain that the circuit court restricted their personal
access to materials produced during discovery. However, petitioners further indicate that their first
attorney, who adequately represented their interests, had permission to handle and possess
discovery materials. Therefore, petitioner’s late complaint about how discovery was conducted
lacks substantial merit.
       7
          Similarly, even if there was a general right to counsel in habeas cases that challenge the
terms and conditions of confinement, petitioners would not be able to meet the applicable standard
to show that their second attorney was ineffective by failing to submit proposed findings of fact
and conclusions of law. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (“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.”) (Emphasis added.).
                                                  -4­
      For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha
County and affirm its September 13, 2012 order denying the petitions.

                                                                                       Affirmed.

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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