Prisoner names McGraw in extradition-related suit

By Kelly Holleran | Oct 9, 2008

CHARLESTON -- A prisoner in St. Mary's Correctional Center has filed a petition against state Attorney General Darrell McGraw, alleging his Fourth Amendment rights were violated when he was seized and extradited to West Virginia after he fled to North Carolina.

CHARLESTON -- A prisoner in St. Mary's Correctional Center has filed a petition against state Attorney General Darrell McGraw, alleging his Fourth Amendment rights were violated when he was seized and extradited to West Virginia after he fled to North Carolina.

Henry William Johnson claims he should not remain in prison because he was brought back to the Mountain State after a judge in Wake Circuit Court in North Carolina had already disposed of his extradition.

In the suit filed Sept. 25 in U.S. District Court, Johnson also claims that when he was returned to West Virginia, his due process rights were violated because he was not allowed to appear before a magistrate for an arraignment hearing until 26 days after he had been in jail.

Johnson, a convicted sex offender, left West Virginia to travel to North Carolina on Nov. 9, 2006, the suit states.

He claims he made the decision to leave the state after he had been arrested twice by Beckley police and charged with fleeing on a bicycle, obstructing, possession of one gram of marijuana, public intoxication and littering.

After both arrests, Johnson was sentenced to one year in Southern Regional Jail.

His public defender appealed that decision on the grounds that Johnson's sentence was unreasonable and he had only been imposed because of his previous record as a convicted sex offender.

Johnson was then released from jail on Sept. 18, 2006, but placed on home confinement while his appeal was pending, according to the complaint.

Because Johnson is a registered sex offender, he is required to inform police of his every location.

So when he got out of jail, Johnson claims he called the West Virginia State Police to inform them of his stay at Southern Regional Jail.

He could not appear at the station in person because an electronic bracelet was monitoring his movements and he was required to stay home, the suit states.

Johnson filed for his annual re-registration as a convicted sex offender Nov. 1, 2006, this time in person, according to the complaint.

But Johnson claims one of the West Virginia State police corporals told him that since he had called in his report the previous time and not appeared at the barracks in person, the corporal may inform the Raleigh County prosecutor.

That is when Johnson, who was still on home confinement, made plans to travel to North Carolina, he claims.

"Note well that I had left Beckley Nov. 9, 2006, entirely due to evading being subjected to any more jail time in SRJ," Johnson wrote in the suit. "I cut off and chucked the ankle bracelet into the New River in Hinton, along the way."

Johnson was in North Carolina for about five months before he was stopped by Wake County bicycle police officers on March 15, 2007, according to the complaint.

He claims they had stopped him after he asked a citizen if he wanted to buy LSD.

The police discovered Johnson was wanted in West Virginia on a misdemeanor charge of escape from custody and for failure to register as a sex offender, according to the complaint.

West Virginia police were given 90 days from the time of Johnson's arrest to obtain a Governor's Warrant and to extradite Johnson back to West Virginia, the suit states.

Johnson claims they failed to do so, and a Wake Circuit Judge disposed of the extradition, but placed a $35,000 bond on Johnson, so he was forced to stay in jail.

But on July 21, 2007, TransCor showed up to extradite Johnson to West Virginia, despite the extradition being disposed of, the suit states.

Johnson was brought to Southern Regional Jail on July 28, 2007, but was not arraigned until Aug. 23, 2007, according to the complaint.

During his arraignment, Johnson claims his public defender tried to get the case dismissed on the grounds Johnson was not given his due process rights.

The defender argued the governor failed to extradite him in a timely manner and that Johnson was not allowed a timely arraignment.

Raleigh Circuit Judge Roger Burnside concluded Johnson and his defender were correct, but denied their motion after the prosecutor, Kristen Keller, said, "But, he has a record; he is a bad guy!" the suit states.

Johnson agreed to a plea deal of one to five years in imprisonment on the offense charged, according to the complaint.

He claims that as part of the deal, no further charges would be filed, his prior sentence of one year in jail would run concurrent with his new sentence, his escape from custody charge would be dismissed and he would be given commencement credit from March 15, 2007.

Johnson agreed to the plea bargain with a Kennedy Plea – he accepted the deal, but did not admit his guilt.

"My decision was based upon the conflict of interest – Kristen Keller being Judge Burnside's former wife – and my reservations that I would not have received a fair trial; and also by entering into a Kennedy plea," Johnson wrote in the suit.

Johnson is seeking a declaratory judgment that he was unlawfully seized and extradited and was deprived of his right of initial appearance.

He is representing himself.

U.S. District Court case number: 5:08-1124

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