IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

_____________

No. 18-0882

_____________

STATE OF WEST VIRGINIA EX REL.

DAVID E. TACKETT,

Petitioner

V.

HONORABLE DARL W. POLING,

JUDGE OF THE CIRCUIT COURT OF RALEIGH COUNTY,

Respondent

________________________________________________

PETITION FOR WRIT OF MANDAMUS

WRIT GRANTED AS MOULDED

________________________________________________

Submitted: January 14, 2020

Filed: May 22, 2020

Dana F. Eddy

Appellate Advocacy Division

Public Defender Services

Charleston, West Virginia

Attorney for the Petitioner

Patrick Morrisey

Attorney General

Karen Villanueva-Matkovich

Deputy Attorney General

Charleston, West Virginia

Attorneys for the Respondent

JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE HUTCHISON, deeming himself disqualified, did not participate in the 

decision of this case.

JUDGE PAUL T. FARRELL, sitting by temporary assignment.

FILED

May 22, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “Upon request, an indigent defendant in a criminal case who enters a 

guilty plea is entitled to a transcript of all proceedings against him, including the 

indictment, pre-trial motions, pre-trial hearings, and any other matter of record.” Syllabus 

point 1, Call v. McKenzie, 159 W. Va. 191, 220 S.E.2d 665 (1975).

2. An indigent criminal defendant’s entitlement to a free copy of the 

transcript of the proceedings against him or her, and to all other matters of record, does not 

include copies of any transcripts or other documents or matters of record that are protected 

from disclosure, such as copies of any recorded interview of a child victim or any transcript 

or related documentation of such an interview, which are protected from disclosure under 

Rule 18.03 of the West Virginia Trial Court Rules.

3. An inmate may not engage in discovery in relation to a postconviction habeas corpus proceeding prior to the filing of his or her petition seeking a writ 

of habeas corpus. Discovery may be had in a post-conviction habeas corpus proceeding 

only after a petition has been filed and only as permitted by Rule 7 of the West Virginia 

Rules Governing Post-Conviction Habeas Corpus Proceedings.
1

Jenkins, Justice:

This original jurisdiction action in mandamus revisits an indigent inmate’s 

entitlement to transcripts and other material contained in a circuit court’s record of a 

criminal proceeding for the purposes of preparing a post-conviction petition for writ of 

habeas corpus. We also contemplate whether these documents may be obtained by use of

discovery. After considering the parties’ briefs, the relevant legal authority, the record 

submitted for our review, and the oral arguments presented, we reaffirm that an indigent 

inmate who has entered a plea of guilty is entitled to one free copy of transcripts and other 

matters of record that are not protected from disclosure for purposes of preparing a postconviction petition for writ of habeas corpus. In addition, we conclude that discovery may 

not be used to obtain court records for purposes of preparing a post-conviction petition for 

writ of habeas corpus, but may be utilized in accordance with Rule 7 of the West Virginia 

Rules Governing Post-Conviction Habeas Corpus Proceedings after a petition has been 

filed. Because the petitioner in this case filed a petition in the circuit court in which he 

entered his guilty plea seeking documents related to his criminal case, and he had not 

previously received a free copy of his court records, we grant the requested writ. However, 

because he seeks materials to which he may not be entitled, and that may not be in the 

circuit court’s possession, we grant the requested writ as moulded. 
2

I.

FACTUAL AND PROCEDURAL HISTORY

In May of 2017, an indictment was issued against the petitioner, David E.

Tackett (“Mr. Tackett”), charging him with four offenses related to the first-degree sexual 

assault of a child under the age of twelve. According to the circuit court judge who presided 

over the case,1 during the pretrial phase of the criminal action Mr. Tackett repeatedly filed

motions demanding new counsel.

2

 As a result, the presiding judge filed an order on April 

17, 2018, that denied a motion by defense counsel to withdraw and prohibited Mr. Tackett 

from continuing to submit filings as a self-represented litigant.

3

On August 7, 2018, Mr. Tackett entered a plea of guilty to one count of 

nighttime burglary, two counts of first degree sexual assault of a child, and mandatory 

1 The Honorable John A. Hutchison, as Judge of the Circuit Court of Raleigh 

County, presided over Mr. Tackett’s criminal proceedings and filed, as a self-represented 

litigant, the initial brief responding to Mr. Tackett’s petition for writ of mandamus in this 

Court. Thereafter, Judge Hutchison was appointed to serve as a Justice on this Court. As 

a result, the Honorable Darl W. Poling, Judge of the Circuit Court of Raleigh County, was 

substituted as the respondent. Justice Hutchison disqualified himself from participating in 

the decision of this case.

2 These filings are reflected in the docket sheet contained in the supplemental

appendix record filed in this Court; however, the documents themselves are not included 

in the appendix record. 

3 In his reply to Mr. Tackett’s petition for writ of mandamus, the presiding 

judge explained that the order directing Mr. Tackett to cease filing motions and sending 

correspondence to the court was entered, in part, due to the fact that Mr. Tackett requested 

that the court not inform his lawyer of the correspondence and/or the motions attached 

thereto.
3

sentencing for certain sex offenses against children. The circuit court’s order 

memorializing the plea was entered on August 28, 2018.4

Despite the presiding judge’s order prohibiting Mr. Tackett from submitting 

filings as a self-represented litigant, Mr. Tackett, as a self-represented litigant, petitioned 

the Circuit Court of Raleigh County for the “production of documents” on August 27, 2018, 

which was approximately twenty days after he entered a plea of guilty and one day before 

the trial court’s order memorializing the same was entered. In his petition, Mr. Tackett 

apparently sought:5

1. Copy of all Court orders entered in the above-mentioned 

Indictment case number.

2. Copy of all transcripts of hearings pertaining to the above 

mentioned Indictment case number.

3. Copy of all plea agreements and transcripts of plea hearing.

4 Mr. Tackett is serving a life sentence and is not eligible for parole until after 

he has served fifteen years of that sentence. If he is released from custody, he is subject to 

extended post-release supervision for a term of fifty years following his release.

5 It is not clear from the record that this is an accurate recitation of the exact 

documents Mr. Tackett sought in his August 27, 2018 petition. The Respondent’s

supplemental brief explains that Mr. Tackett filed two similar petitions seeking documents. 

The first, filed on August 27, 2018, apparently referenced Mr. Tackett’s desire to file a 

petition for writ of habeas corpus. The second, filed on October 28, 2019, after he filed his 

petition for writ of mandamus in this Court, did not. The copy of Mr. Tackett’s petition 

contained in the Respondent’s supplemental appendix includes a cover letter date stamped 

August 27, 2018, which is the date of the first petition Mr. Tackett filed in the circuit court, 

but the petition itself has no date stamp. The petition accompanying the August 27, 2018 

cover letter makes no reference to habeas corpus, thus it would appear to be the October 

28, 2019 filing. In the record filed in this Court, there is no copy of a petition filed by Mr. 

Tackett that references habeas corpus relief.
4

4. Copy of sentencing and commitment order.

The presiding judge did not respond to his request. On October 11, 2018, Mr. Tackett filed 

in this Court his “Petition for Writ of Mandamus for the Production of Documents.” Mr. 

Tackett asserts that he requires certain documents6 to file his habeas corpus petition in 

which he intends to claim that his guilty plea was not voluntarily and intelligently made. 

The presiding judge, as a self-represented litigant, filed a reply on November 

13, 2018, which asserts that Mr. Tackett is not entitled to discovery because, pursuant to 

State ex rel. Wyant v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003), a defendant is 

not entitled to discovery prior to filing a petition for writ of habeas corpus. The presiding 

judge did, however, concede that Mr. Tackett may be entitled to certain documents and 

stated that he would order the clerk to produce a copy of the docket sheet, the indictment, 

the information, and the final order. Due to the presiding judge’s appointment to serve on 

this Court, Judge Darl W. Poling (“Judge Poling”) was substituted as the Respondent in 

this case.7

6 The list of documents requested in Mr. Tackett’s petition for writ of 

mandamus filed in this Court does not exactly match the “Petition for Production of 

Documents” that is in the appendix record or what the presiding judge’s initial response 

brief filed in this Court states that Mr. Tackett requested below. Mr. Tackett now requests, 

in addition to his prior request, “copy [sic] of all evidentiary disk [sic], including the West 

Virginia State Police Forensic Laboratory Discovery Disk.” In his supplemental brief, Mr. 

Tackett states that one category of documents or information he seeks is not in the court’s 

records.

7 See note 1 supra.
5

This Court assigned counsel for both parties and directed the parties to 

provide supplemental briefing to address whether an inmate is entitled to discovery prior 

to filing a habeas corpus petition.

8

 Following the filing of the supplemental briefs, and the 

presentation of oral arguments, this case was submitted for decision. We now grant the 

requested writ as moulded.

II.

STANDARD FOR ISSUANCE OF WRIT

This is an original jurisdiction proceeding seeking a writ of mandamus. 

“Mandamus lies to require the discharge by a public officer of a nondiscretionary duty.” 

Syl. pt. 3, State ex rel. Greenbrier Cty. Airport Auth. v. Hanna, 151 W. Va. 479, 153 S.E.2d 

284 (1967). Certain criteria must exist to warrant issuance of the requested writ. 

Before this Court may properly issue a writ of 

mandamus three elements must coexist: (1) the existence of a 

clear right in the petitioner to the relief sought; (2) the existence 

of a legal duty on the part of the respondent to do the thing the 

petitioner seeks to compel; and (3) the absence of another 

adequate remedy at law.

Syl. pt. 3, Cooper v. Gwinn, 171 W. Va. 245, 298 S.E.2d 781 (1981). Guided by these 

standards, we address the issues raised.

8 The parties also were directed to provide supplemental briefing to address 

whether an inmate may use the West Virginia Freedom of Information Act to obtain court 

records for the purpose of filing a habeas corpus petition. Upon further consideration, we 

have determined that this issue need not be addressed to resolve this case and we, therefore, 

decline to address it.
6

III.

DISCUSSION

The issues presented in this case involve whether an indigent inmate who has 

entered a plea of guilty and who has not previously received a copy of transcripts and other 

material contained in the record of his or her criminal proceeding is entitled to those 

documents when they are sought for purposes of preparing a petition for writ of habeas 

corpus, and whether discovery is a proper method of obtaining such documents. We 

address each issue in turn.

A. Indigent Inmate’s Entitlement to

One Free Copy of Transcripts and Other Matters of Record

Mr. Tackett argues that, under this Court’s holding in Call v. McKenzie, 159 

W. Va. 191, 220 S.E.2d 665 (1975), he is entitled to a free copy of relevant transcripts and 

court records from his criminal proceeding because he has not filed a direct appeal and has 

not yet received a copy of the record of his criminal case.9

 Judge Poling asserts that Mr. 

Tackett’s second petition seeking materials from his criminal proceedings, which was filed 

on October 28, 2019, did not state a purpose for the request.10 He then suggests that, 

because of the absence of a stated purpose for the request of documents, the case should be 

remanded with directions to determine whether Mr. Tackett’s request should be granted in 

9 The fact of Mr. Tackett’s indigency has not been disputed in this Court.

10 See note 5 supra for a discussion of the petitions seeking documents that 

have been filed in the circuit court by Mr. Tackett.
7

accordance with the Call opinion. We find that remand for such a determination is not 

necessary as the Call opinion resolves this matter.

This Court, in Call, established that an indigent criminal defendant who has 

entered a plea of guilty is entitled to a free copy of the record of his or her case. The Court 

in Call stated that “henceforth an indigent criminal defendant shall always be entitled, upon 

request, to a free transcript of the entire record of his case.” Id. at 193, 220 S.E.2d at 668. 

The Court then expressly held that, “[u]pon request, an indigent defendant in a criminal 

case who enters a guilty plea is entitled to a transcript of all proceedings against him, 

including the indictment, pre-trial motions, pre-trial hearings, and any other matter of 

record.” Syl. pt. 1, Call, 159 W. Va. 191, 220 S.E.2d 665.11 Call further observed that this 

is a constitutional right, commenting that “the denial of a free transcript to [Mr. Call] is 

unconstitutional.” Id. at 193, 220 S.E.2d at 668.12 The Call opinion acknowledged that 

Mr. Call sought his trial record “to prepare his case on habeas corpus.” Call, 159 W. Va.

at 193, 220 S.E.2d at 668. Thus, under Call, Mr. Tackett clearly is entitled to “a transcript 

11 The Call opinion overruled an earlier case in which the Court had held 

that, “[u]nder the provisions of Code, 51-7-7, as amended, there is no duty on the part of 

the state to furnish to the accused a transcript of the testimony and proceedings of a trial 

where the accused has entered a plea of guilty.” State ex rel. Wright v. Boles, 149 W. Va.

371, 141 S.E.2d 76 (1965), overruled by Call v. McKenzie, 159 W. Va. 191, 220 S.E.2d 

665 (1975).

12 Cf. Syl. pt. 1, in part, Rhodes v. Leverette, 160 W. Va. 781, 239 S.E.2d 136 

(1977) (holding, in the context of a criminal defendant’s preparation for an appeal, that 

“[a]n indigent criminal defendant . . . is . . . constitutionally entitled to a copy of the trial 

court record, including the transcript of the testimony, without cost to him. West Virginia 

Constitution, Article III, Sections 10 and 17.”).
8

of all proceedings against him, including the indictment, pre-trial motions, pre-trial 

hearings, and any other matter of record.” Syl. pt. 1, in part, Call, 159 W. Va. 191, 220 

S.E.2d 665.

In the context of the instant matter, though, it is important to note that an 

indigent criminal defendant’s entitlement to his or her trial record is not without limitation. 

This is particularly true where, as here, the underlying offenses involve sensitive facts and 

a victim of tender years. For example, under Rule 18.03 of the West Virginia Trial Court 

Rules,13 Mr. Tackett is not entitled to a copy of any recorded interview of his child victim 

or to any transcript or related documentation of such an interview. Accordingly, we now 

hold that an indigent criminal defendant’s entitlement to a free copy of the transcript of the 

proceedings against him or her, and to all other matters of record, does not include copies 

of any transcripts or other documents or matters of record that are protected from 

disclosure, such as copies of any recorded interview of a child victim or any transcript or 

related documentation of such an interview, which are protected from disclosure under 

Rule 18.03 of the West Virginia Trial Court Rules.

13 Rule 18.03 of the West Virginia Trial Court Rules is part of a series of 

rules pertaining to recorded interviews of children. See W. Va. T.C.R. §§ 18.01 to 18.04. 

Rule 18.03 governs access to and use of such recordings, transcripts of recordings, and 

other related documentation.
9

B. Use of Discovery to Obtain Transcripts and Other Matters of Record 

for Preparing a Post-Conviction Petition for Writ of Habeas Corpus

As to use of discovery, Mr. Tackett concedes that a request for information 

and documents relevant to the completion of a petition for a writ of habeas corpus is not 

discovery. He claims, however, that he must have the information he seeks to enable him 

to review the process below “to ensure that all his constitutional rights . . . have been 

honored,” and to accurately complete the “Post-Conviction Habeas Corpus Form” set forth 

in the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings (“PostConviction Habeas Rules”). See W. Va. Post-Conviction Habeas R. App. A. Mr. Tackett 

complains that this form requires “provision of detail that a lay person should not be 

expected to possess as a matter of course” and that the form itself warns that a failure to 

set forth all grounds in the petition may result in the petitioner being barred from presenting 

additional grounds at a later date. Mr. Tackett additionally asserts that this Court’s decision 

in State ex rel Wyant v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812, incorrectly minimizes 

the requirements for completing the form and is distinguishable on the facts. Judge Poling 

replies that, pursuant to West Virginia Code section 53-4A-4(a) (LexisNexis 2016) and the 

Post-Conviction Habeas Rules, an inmate is not entitled to discovery prior to the filing of 

a habeas corpus petition. We agree with Judge Poling.
10

“Discovery” in the context of seeking the production of documents or other 

evidentiary material generally does not occur outside of some form of litigation.14 See

Black’s Law Dictionary 419 (5th ed. 1979) (defining “discovery,” in part, as “[t]he pre-trial 

devices that can be used by one party to obtain facts and information about the case from 

the other party in order to assist the party’s preparation for trial”). See, e.g., W. Va. R. Civ. 

P. 26 to 37 (pertaining to depositions and discovery);15 W. Va. R. Crim. P. 16 (providing 

generally rules for disclosure of evidence by the State and by the defendant in preparation 

for a criminal trial).

16

The use of discovery in connection with a post-conviction habeas corpus 

proceeding is governed by Rule 7 of the Post-Conviction Habeas Rules. Under Rule 7, 

discovery may be had in post-conviction habeas corpus proceedings only upon leave of the 

court:

(a) Leave of court required. — In post-conviction 

habeas corpus proceedings, a prisoner may invoke the 

14 But see W. Va. R. Civ. P. 27 (providing for the taking of certain depositions 

before an action or pending appeal has been brought when the requirements set out in the 

rule have been met).

15 The West Virginia Rules of Civil Procedure “govern the procedure in all 

trial courts of record in all actions, suits, or other judicial proceedings of a civil nature

whether cognizable as cases at law or in equity . . . .” W. Va. R. Civ. P. 1 (emphasis 

added).

16 The West Virginia Rules of Criminal Procedure “govern the procedure in 

all criminal proceedings in the circuit courts of West Virginia . . . and whenever 

specifically provided in one of the rules, to criminal proceedings before West Virginia 

magistrates.” W. Va. R. Crim. P. 1 (emphasis added).
11

processes of discovery available under the West Virginia Rules 

of Civil Procedure if, and to the extent that, the court in the 

exercise of its discretion, and for good cause shown, grants 

leave to do so. If necessary for effective utilization of discovery 

procedures, counsel shall be appointed by the court for a 

petitioner who qualifies for the appointment of counsel under 

Rule 3(a).

(b) Requests for discovery. — Requests for discovery 

shall be accompanied by a statement of the interrogatories or 

requests for admission and a list of the documents, if any, 

sought to be produced.

(c) Expenses. — If the respondent is granted leave to 

take the deposition of the petitioner or any other person, the 

court may, as a condition of taking the deposition, direct the 

respondent to pay the expenses of travel, subsistence and fees 

of counsel for the petitioner to attend the taking of the 

deposition.

W. Va. Post-Conviction Habeas R. 7. Interpreting this rule, this Court has previously 

explained that, “unlike an ordinary civil litigant, a habeas petitioner ‘is not entitled to 

discovery as a matter of ordinary course.’ Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 

1793, 1797, 138 L. Ed. 2d 97, 103 (1997).” State ex rel. Parsons v. Zakaib, 207 W. Va.

385, 390, 532 S.E.2d 654, 659 (2000). Thus, we have held that,

[i]n proceedings under the West Virginia Post–

Conviction Habeas Corpus Act, W. Va. Code §§ 53-4A-1 

to -11, discovery is available only where a court in the exercise 

of its discretion determines that such process would assist in 

resolving a factual dispute that, if resolved in the petitioner’s 

favor, would entitle him or her to relief.

Syl. pt. 3, Parsons, 207 W. Va. 385, 532 S.E.2d 654.17

17 Discussing the adoption of the Post-Conviction Habeas Rules, the Court 

observed that
12

Nothing in Rule 7 provides for discovery prior to the filing of a postconviction petition for writ of habeas corpus. Similarly, under West Virginia Code section 

53-4A-4(a), which is part of the West Virginia Code article pertaining to post-conviction 

habeas corpus, discovery is available only after a petition for writ of habeas corpus has 

been filed and the circuit court has made certain determinations.18

[t]he most significant aspects of the Habeas Corpus Rules 

largely codify habeas practice as it was prior to 1998.

This is clearly evident in the area of discovery. In

accord with our earlier holding in Gibson[ v. Dale], where we 

limited discovery to circumstances where a “petitioner can 

demonstrate that the materials in the possession of the State 

contain relevant evidence which would enable . . . [the 

petitioner] to prove specific allegations entitling him to relief,” 

[173 W. Va. 681, 689, 319 S.E.2d 806, 814 (1984)], Habeas 

Corpus Rule 7(a) now similarly requires that a habeas 

petitioner obtain leave of court through “good cause shown” 

before invoking discovery procedures. Rule 7(a) is intended to 

be consistent with the standard enunciated in Gibson.

State ex rel. Parsons v. Zakaib, 207 W. Va. 385, 389-90, 532 S.E.2d 654, 658-59 (2000) 

(footnotes omitted).

18See W. Va. Code § 53-4A-4(a) (LexisNexis 2016) (providing, in part, that 

“[i]f it shall appear to the court that the record in the proceedings which resulted in the 

conviction and sentence, including, but not limited to, a transcript of the testimony therein, 

or the record or records in a proceeding or proceedings on a prior petition or petitions filed 

under the provisions of this article, or the record or records in any other proceeding or 

proceedings instituted by the petitioner to secure relief from his conviction or sentence, or 

all of such records, or any part or parts thereof, are necessary for a proper determination of 

the contention or contentions and grounds (in fact or law) advanced in the petition, the 

court shall, by order entered of record, direct the state to make arrangements for copies of 

any such record or records, or all of such records, or such part or parts thereof as may be 

sufficient, to be obtained for examination and review by the court, the state and the 

petitioner” (emphasis added)). See also Gibson v. Dale, 173 W. Va. 681, 688, 319 S.E.2d 

806, 813 (1984) (“Nor does it appear that the statute entitles a petitioner for post-conviction 

habeas corpus relief to unlimited compulsory discovery. Although the statute allows the 
13

Although Mr. Tackett protests that the form petition to be used in filing a 

post-conviction petition for writ of habeas corpus is complex and requires a copy of the 

record, we disagree. Under the Post-Conviction Habeas Rules,

[t]he petition shall be in substantially the form annexed to these 

rules as Appendix A. The petition shall specify: (1) all the 

grounds for relief which are available to the petitioner; (2) a 

summary of the facts supporting each of the grounds specified; 

and (3) a specific statement of the relief requested. The petition 

shall be typewritten or legibly handwritten and shall be signed 

or verified under penalty of perjury by the petitioner.

Rule 2(a), in part, id. We have previously observed that, 

[p]lainly absent from this rule is any requirement for the 

attachment of supporting documentation. Similarly, the 

instructions for the form petition provided in Appendix A 

permit, but do not require, the attachment of supporting 

documentation. Instruction number 2 states, in relevant part: 

“[a]dditional pages are not permitted except with respect to the 

facts which you rely upon to support your grounds for relief.” 

The form petition provided in the appendix to the rules is 

intended to assist a petitioner in stating simply and concisely 

the grounds upon which the petitioner claims he or she is being 

held unlawfully, and in providing a brief statement of the facts 

supporting such claims. To reach this end, the form even goes 

so far as to provide “a list of the most frequently raised grounds 

for relief in habeas corpus proceedings.” Appendix A, Rules 

Governing Post-Conviction Habeas Corpus Proceedings.

State ex rel. Wyant v. Brotherton, 214 W. Va. at 439, 589 S.E.2d at 817 (footnote omitted). 

Even though the form petition requires a brief statement of supporting facts, records from 

court considerable flexibility in receiving evidence offered by the petitioner, W. Va. Code 

§ 53-4A-4(a) (1983 Cum. Supp.) requires the court to order production of records and 

documents in the possession of the State only if it appears to the court that ‘such records, 

or any part or parts thereof, are necessary for a proper determination of the contention or 

contentions and grounds (in fact or law) advanced in the petition.’” (emphasis added) 

(footnote omitted)).
14

the circuit court are not necessary to provide them at the petition stage. As the United 

States Supreme Court has remarked,

“[t]he usual grounds for successful collateral attacks 

upon convictions arise out of occurrences outside of the 

courtroom or of events in the courtroom of which the defendant 

was aware and can recall without the need of having his 

memory refreshed by reading a transcript. He may well have 

a need of a transcript [to support his claim] but rarely, if 

ever, . . . to become aware of the events or occurrences which 

constitute a ground for collateral attack.” [United States v. 

Shoaf, 341 F.2d 832, 835 (4th Cir. 1964)].

United States v. MacCollom, 426 U.S. 317, 327-28, 96 S. Ct. 2086, 2092-93, 48 L. Ed. 2d 

666 (1976).

Furthermore, protections, such as appointing counsel and allowing an 

amended petition, are built into the rules for circumstances where a petition may have merit 

but is insufficient to support a fair adjudication of the petitioner’s claims:

If, upon initial review of the petition and any exhibits in 

support thereof, the court determines that the petitioner may 

have grounds for relief but the petition, as filed, is not sufficient 

for the court to conduct a fair adjudication of the matters raised 

in the petition, the court shall appoint an attorney to represent 

the petitioner’s claims in the matter, provided that the 

petitioner qualifies for the appointment of counsel under Rule 

3(a). The court may order appointed counsel to file an 

amended petition for post-conviction habeas corpus relief 

within the time period set by the court.

W. Va. Post-Conviction Habeas R. 4(b). This process is commonly used. See, e.g., Allman 

v. Sallaz, No. 19-0012, 2020 WL 1674263 (W. Va. Apr. 6, 2020) (memorandum decision) 

(relating that, after petitioner filed petition for writ of habeas corpus without representation, 
15

petitioner was appointed counsel who filed an amended petition); Keith Ray H. v. Harlan, 

No. 19-0186, 2020 WL 1674274 (W. Va. Apr. 6, 2020) (memorandum decision) (same); 

Galloway v. Ames, No. 18-0688, 2019 WL 6048283 (W. Va. Nov. 15, 2019) (memorandum 

decision) (same); Finley v. Ames, No. 18-0312, 2019 WL 5854042, (W. Va. Nov. 8, 2019) 

(memorandum decision) (same); Jessica M. v. Sallaz, No. 17-1142, 2019 WL 2404582 

(W. Va. June 7, 2019) (memorandum decision) (same); Cline v. Mirandy, 234 W. Va. 427, 

429, 765 S.E.2d 583, 585 (2014) (“Petitioner filed the current petition for writ of habeas 

corpus in 2006. The circuit court appointed counsel and directed that he file an amended 

petition if required.”). 

In fact, when a petition fails to provide adequate factual support, a circuit 

court is permitted to dismiss the petition without prejudice and direct that it be refiled with 

adequate factual support. W. Va. Post-Conviction Habeas R. 4(c). See also W. Va. PostConviction Habeas R. App. A, Instruction 7 (advising that “[p]etitions [that] do not 

conform to these instructions will be returned with a notation as to the deficiency”). Based 

upon the foregoing reasoning, we hold that an inmate may not engage in discovery in 

relation to a post-conviction habeas corpus proceeding prior to the filing of his or her 

petition seeking a writ of habeas corpus. Discovery may be had in a post-conviction habeas 

corpus proceeding only after a petition has been filed and only as permitted by Rule 7 of 

the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings.
16

IV.

CONCLUSION

For the reasons explained in the body of this opinion, we conclude that an 

indigent criminal defendant who has entered a plea of guilty and has not previously 

obtained the documents to which he or she is entitled, which includes a free copy of the 

transcript of the proceedings against him or her and other matters of record, may obtain 

those documents, upon request, for purposes of preparing a petition for writ of habeas 

corpus. However, the defendant’s entitlement to those transcripts and records does not 

include copies of any transcripts or other documents or matters of record that are protected 

from disclosure. We additionally conclude that discovery under Rule 7 of the West 

Virginia Post-Conviction Habeas Rules may not be used to obtain court records for 

purposes of preparing a petition for writ of habeas corpus. 

To the extent that Mr. Tackett is an indigent inmate who has never received 

a copy of a transcript of the proceedings against him or other matters of record, he is entitled 

to those records with the exception of any material that is subject to protection from 

disclosure, such as copies of any recorded interview of his child victim or any transcript or 

related documentation of such an interview. Thus, Mr. Tackett has met the standard for 

the issuance of a writ of mandamus. He has a clear right to the relief he seeks and has no 

other adequate remedy at law, and the circuit court has a duty to provide the requested 

relief. Accordingly, we grant the writ of mandamus. However, because Mr. Tackett may 

not be entitled to all of the documents he seeks, and because he admits that some of the 
17

records he seeks may not be in the possession of the circuit court and therefore are not 

subject to disclosure by the court, we grant the writ as moulded.

Writ Granted as Moulded.