STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Dale Edward Guthrie, 

Petitioner Below, Petitioner FILED 

vs) No. 13-1201 (Kanawha County 13-P-290) June 6, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

Marvin Plumley, Warden, Huttonsville Correctional Center, OF WEST VIRGINIA 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Dale Edward Guthrie, appearing pro se, appeals the November 8, 2013, order of 

the Circuit Court of Kanawha County that denied his instant petition for a writ of habeas corpus. 

Respondent warden, by counsel Laura Young, filed a response. 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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In 1994, petitioner was convicted of first degree murder in the death of Stephen Todd 

Farley. Petitioner was sentenced to life in prison with the possibility of parole. In State v. Guthrie, 

194 W.Va. 657, 461 S.E.2d 163 (1995), this Court reversed petitioner’s conviction and remanded 

the case for a new trial. Following his second trial, petitioner was again convicted of first degree 

murder and sentenced to life in prison with the possibility of parole. 

In October of 1996, petitioner appealed his second conviction to this Court making the 

following assignments of error: (1) the circuit court erred in instructing the jury that gross 

provocation constituted an element of voluntary manslaughter; (2) the circuit court erred in 

instructing the jury that the gross provocation necessary for manslaughter was objective, and not 

subjective; and (3) the circuit court erred in refusing to give instructions taken verbatim from the 

body of this Court’s opinion in Guthrie, which provided examples and factors for a jury to 

consider in determining first degree murder. This Court refused petitioner’s appeal in January of 

1997. 

On November 15, 2007, petitioner filed his first petition for a writ of habeas corpus raising 

the following issues: (1) trial counsel was ineffective in not addressing whether there was 

sufficient evidence of first degree murder; (2) petitioner’s constitutional rights were violated 

because he was not promptly presented to a magistrate following his arrest; and (3) insufficient 

evidence existed to support a conviction on first degree murder. The circuit court did not appoint 

habeas counsel for petitioner, but did require respondent warden to respond to the petition. 

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Following respondent warden’s response, the circuit court denied the petition on September 19, 

2008. 

Petitioner filed the instant habeas petition on May 28, 2013, raising the following grounds 

for relief: (1) trial counsel was ineffective (a) by not arguing that the State did not promptly present 

petitioner to a magistrate, (b) by not moving to exclude testimony with regard to the occupation of 

the victim’s father; and (c) by not appealing the circuit court’s decision to allow an inflammatory 

line of questioning by the State; (2) the circuit court denied petitioner a fair trial by 

overemphasizing “gross provocation” at the expense of the element of malice in instructing the 

jury on voluntary manslaughter; and (3) the cumulative effect of these errors by counsel and the 

circuit court deprived petitioner of a fair trial. Once again, the circuit court did not appoint habeas 

counsel for petitioner, but required respondent warden to respond to the petition. Petitioner filed 

objections to the circuit court’s refusal to appoint him counsel. Petitioner also filed a reply to 

respondent warden’s response. On November 8, 2013, the circuit court denied the petition in a 

twenty-three page order. 

Petitioner now appeals the circuit court’s November 8, 2013, denial of his instant petition. 

We apply the following standard of review in habeas cases: 

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 asserts that he made factual allegations sufficient to entitle him to the 

appointment of counsel and an omnibus habeas corpus hearing. Petitioner argues that the circuit 

court acted unfairly in not appointing him counsel when the court ordered a response be filed by 

respondent warden’s counsel. Petitioner argues that the circuit court also erred in ruling that the 

denial of petitioner’s first petition in 2007 barred consideration of the instant petition under the 

doctrine of res judicata. Finally, petitioner asserts that the circuit court exhibited bias against him 

in making various rulings unfavorable to him. 

Respondent warden counters that “[a] court having jurisdiction over habeas corpus 

proceedings may deny a petition for a writ of habeas corpus without a hearing and without 

appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary 

evidence filed therewith show to such court’s satisfaction that the petitioner is entitled to no 

relief.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). Respondent warden 

further argues that the circuit court did not rely on the doctrine of res judicata,1 but rather 

1 As petitioner correctly notes, the doctrine of res judicata bars subsequent habeas 

petitions only “where there has been an omnibus habeas corpus hearing at which the applicant for 

habeas corpus was represented by counsel or appeared pro se having knowingly and intelligently 

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reexamined the record and disposed of each of the issues in the 2013 petition with adequate 

findings. Last, respondent warden asserts that not only did petitioner not follow the proper 

procedure for moving for the circuit judge’s recusal, but also that the only basis petitioner now 

alleges for seeking recusal is that the judge ruled against him. 

This Court finds that the circuit court’s order denying habeas relief adequately addresses 

the three issues raised in the instant petition. As to the issues petitioner raises solely on appeal, we 

reject those arguments as well. First, while petitioner complains of the circuit court’s practice of 

requiring a response to the petition, that practice did not deprive the circuit court of its authority 

under Perdue to deny the petition without a hearing and without appointing counsel for petitioner. 

Second, the Court finds that, from a review of the circuit court’s order and the appendix record, 

respondent warden is correct that the circuit court did not rely on the doctrine of res judicata in 

denying the instant petition. Third, the mere fact that the circuit court ruled against petitioner does 

not constitute a sufficient basis to question the circuit court’s impartiality. 

Having reviewed the circuit court’s “Final Order Denying Amended Petition for Writ of 

Habeas Corpus,” entered November 8, 2013, we hereby adopt and incorporate the circuit court’s 

well-reasoned findings and conclusions as to the assignments of error remaining in this appeal.2 

The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. 

For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha 

County and affirm its November 8, 2013, order, denying petitioner’s instant petition for a writ of 

habeas corpus. 

Affirmed. 

waived his right to counsel.” Syl. Pt. 2, in part, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 

(1981). 

2 Petitioner contends that in denying relief on his prompt presentment claim, the circuit 

court should have addressed State v. [George] Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984), 

which he alleges is analogous to his case. This Court finds that the circuit court did not need to 

address [George] Guthrie because that case is readily distinguishable from petitioner’s. In 

petitioner’s case, upon his arrest, petitioner was willing to give a statement to the police. In fact, 

the circuit court found that the 1995 trial transcript reflected that petitioner wanted to write out his 

statement himself because “he didn’t want to leave anything out.” See also State v. [Dale] Guthrie, 

194 W.Va. 657, 665-66, 461 S.E.2d 163, 171-72 (1995) (petitioner made a statement at the police 

station and was described as “willing to cooperate.”). The evil the prompt presentment rule seeks 

to prevent is a delay by the police in order “to encourage the suspect to make a statement,” but “our 

prior cases do permit delay in bringing a suspect before a magistrate when the suspect wishes to 

make a statement.” State v. DeWeese, 213 W.Va. 339, 345 n. 10, 582 S.E.2d 786, 792 n. 10 (2003) 

(Emphasis added.). 

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ISSUED: June 6, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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