STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Justin Adams, FILED Petitioner Below, Petitioner 

June 2, 2017 

vs) No. 16-0733 (Taylor County 16-C-35) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Marvin Plumley, Warden, 

Huttonsville Correctional Center, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Justin Adams, pro se, appeals the July 15, 2016, order of the Circuit Court of 

Taylor County denying his petition for a writ of habeas corpus. Respondent Marvin Plumley, 

Warden, Huttonsville Correctional Center, by counsel Zachary Aaron Viglianco, filed a summary 

response in support of the circuit court’s order. 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. 

Petitioner committed a bank robbery in Harrison County, West Virginia, in 2004 and 

another bank robbery in Taylor County, West Virginia, in 2010. The federal government 

prosecuted petitioner for the 2004 bank robbery, and petitioner received a sentence of thirty-seven 

months of incarceration. In 2007, petitioner was placed on supervised release. Petitioner was still 

serving his federal supervised release when he committed the second bank robbery, for which he 

was arrested and indicted by the State of West Virginia in February of 2010. On or about April 9, 

2010, petitioner was transferred to federal custody because he violated the terms and conditions of 

his supervised release. The federal government re-incarcerated petitioner from April 10, 2010, to 

April 21, 2011, and then discharged him. The State of West Virginia re-arrested petitioner for the 

2010 bank robbery on July 7, 2011. 

In January of 2012, petitioner pled guilty to one count of bank robbery pursuant to a plea 

agreement in which the State agreed not to file a recidivist information against him. The circuit 

court sentenced petitioner to ten to twenty years of incarceration, but stated that it would be willing 

to allow petitioner to attend an inpatient drug rehabilitation center if his attorney could find him a 

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placement, and on the condition that he would be recommitted to the custody of the West Virginia 

Division of Corrections (“DOC”) following his completion of the program. Petitioner’s attorney 

found him an appropriate placement and accordingly filed a motion for reconsideration of sentence 

pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The circuit court granted 

the motion and allowed petitioner to attend the inpatient drug rehabilitation program. However, the 

circuit court had to recommit petitioner to the DOC’s custody earlier than expected because, 

instead of completing the program, he absconded from the treatment facility resulting in a capias 

being issued for his arrest. 

Following his recommitment to the DOC’s custody, petitioner filed a Rule 35(a) motion 

for correction of sentence on January 29, 2015, asserting that he was entitled to credit for time 

served for the period when he was in the State’s custody from February 9, 2010, to April 9, 2010, 

and for the period from April 10, 2010, to April 21, 2011, when he was incarcerated at a federal 

correctional institution for violating his supervised release regarding the 2004 bank robbery. By 

order entered on February 3, 2015, the circuit court granted petitioner sixty days of credit for time 

served for the period from February 9, 2010, to April 9, 2010, but denied any such credit for his 

incarceration that resulted from “his violation of his federal [supervised release that] was served on 

a separate sentence from [a f]ederal court.” 

On July 11, 2016, petitioner filed a petition for a writ of habeas corpus alleging that (1) the 

circuit court failed to grant him credit for time served for the period from April 10, 2010, to April 

21, 2011, when he was incarcerated at a federal correctional institution for violating his supervised 

release; and (2) his attorney in his criminal case was ineffective in failing to file an appeal that 

raised the issue of credit for time served for his federal incarceration during 2010 and 2011. By 

order entered on July 15, 2016, the circuit court denied habeas relief. The circuit court rejected 

petitioner’s claim that the State of West Virginia still had legal custody of him while he was 

incarcerated by the federal government from April 10, 2010, to April 21, 2011, given his release 

into the community (rather than back into the State’s custody) upon his discharge from the federal 

correctional institution. With regard to petitioner’s second ground for relief, the circuit court found 

that, “as [petitioner] is not entitled to credit for time served while in federal prison for his 2004 

offense, [petitioner’s attorney] could not have been ineffective by failing to appeal this issue.” 

Petitioner now appeals the circuit court’s July 15, 2016, order denying his habeas petition. 

We apply the following standard of review in habeas appeals: 

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). “In habeas corpus 

proceedings . . ., the petitioner [generally] has the burden of proof; the degree of proof is by a 

preponderance of the evidence.” Stanley v. Dale, 171 W.Va. 192, 194, 298 S.E.2d 225, 227-28 

(1982); see Syl. Pt. 1, Woods v. Whyte, 162 W.Va. 157, 247 S.E.2d 830 (1978) (holding that “[i]n 

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a habeas corpus proceeding where prisoners allege but do not prove that they are being illegally 

held, relief will be denied”). 

On appeal, petitioner raises the same two issues he raised in his habeas petition. With 

regard to his alleged entitlement to additional credit for time served, petitioner contends that this 

State still had legal custody of him during his federal incarceration from April 10, 2010, to April 

21, 2011, given his arrest for the 2010 bank robbery prior to his transfer to federal authorities. 

Petitioner notes that his commission of the 2010 offense meant that he violated his federal 

supervised release with regard to his 2004 conviction. We disagree with petitioner that the 

violation of his supervised release due to his later offense required that he be given credit for time 

served for his federal incarceration from April 10, 2010, to April 21, 2011. We agree with the 

circuit court’s finding that petitioner was not entitled to credit for that period of incarceration 

because it did not result from his arrest for the 2010 offense, but from “his violation of his federal 

[supervised release that] was served on a separate sentence from [a f]ederal court.” The two cases 

are distinct involving not only separate sovereigns, but also different operative facts given that the 

two bank robberies were committed in different counties and six years apart. In Echard v. Holland, 

177 W.Va. 138, 144, 351 S.E.2d 51, 57 (1986), and Miller v. Luff, 175 W.Va. 150, 153, 332 S.E.2d 

111, 114 (1985), we found that there are cases in which double jeopardy and other constitutional 

principles that require that credit be given for time served are not implicated. We find that this is 

such a case. Therefore, we conclude that petitioner has failed to prove that he was entitled to credit 

for time served for the period from April 10, 2010, to April 21, 2011. 

With regard to petitioner’s claim of ineffective assistance of counsel, we agree with the 

circuit court’s finding that “as [petitioner] is not entitled to credit for time served while in federal 

prison for his 2004 offense, [petitioner’s attorney] could not have been ineffective by failing to 

appeal this issue.”1 Petitioner attempts to evade this finding by noting that his request to the circuit 

court was that it resentence him so that he could raise the issue of credit for time served in a 

criminal appeal rather than in this habeas appeal. Respondent appears to concede that petitioner 

was denied his right to appeal by arguing that such denial was harmless beyond a reasonable doubt 

given that petitioner’s substantive issue is without merit. 

We do not accept respondent’s concession. See Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 

408 S.E.2d 1 (1991) (holding that we are not obligated to accept the State’s confession of error). 

While petitioner contends that he did not waive his right to appeal,2 there is no dispute that a 

criminal defendant may choose not to appeal. We find that the record in this case supports the clear 

1

We note that, in West Virginia, claims of ineffective assistance of counsel are governed by 

the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (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

In Asbury v. Mohn, 162 W.Va. 662, 665, 256 S.E.2d 547, 549 (1979), we found that, 

although a constitutional right, “the right to appeal may be waived.” 

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inference that there was no appeal in petitioner’s criminal case because he already had a 

post-sentencing strategy of persuading the circuit court to allow him to attend an inpatient drug 

rehabilitation program if his attorney could find him a placement. Petitioner’s attorney did find 

him an appropriate placement, and the circuit court permitted petitioner to attend the program until 

he absconded from the treatment facility and was recommitted to the DOC’s custody. Therefore, 

we find that petitioner has failed to prove that he was denied the right to appeal in his criminal case. 

We conclude that the circuit court did not abuse its discretion in denying petitioner’s habeas 

petition. 

For the foregoing reasons, we affirm the circuit court’s July 15, 2016, order denying 

petitioner’s petition for a writ of habeas corpus. 

Affirmed. 

ISSUED: June 2, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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