California Dep't of Corrections v. Morales, 514 U.S. 499, 509 (1995). As noted in State ex rel. Carper v. W. Va. Parole Bd., 509 S.E.2d 864, 869 (W. Va. 1998), "a 'setoff' is a term used to describe the time until the next parole review is given by a parole board when it denies parole to a prisoner[.]" Before July 10, 1997, the West Virginia parole review statute, which was then codified in West Virginia Code § 62-12-13(a)(5), provided that "the [Parole] [B]oard shall at least once a year reconsider and review the case of every prisoner so eligible."

Based on our review of the board's decision and the hearing transcript, we concur with respondent and determine that petitioner's positive HIV status was not a factor in the board's denial of parole. Finally, petitioner argues that the board violated our holdings in State ex rel. Carper v. West Virginia Parole Board, 203 W.Va. 583, 509 S.E.2d 864 (1998), in determining that he would not receive another parole hearing for three years without performing a case-specific analysis. Petitioner committed his offense at a time when eligible inmates serving a life sentence were statutorily entitled to yearly reviews by the board; therefore, Carper applies to this case.

"This Court has determined repeatedly that the West Virginia Constitution may be more protective of individual rights than its federal counterpart." State ex rel. Carper v. West Virginia, Parole Bd., 203 W. Va. 583, 590 n. 6, 509 S.E.2d 864, 871 n. 6 (1998). In other words, we may "interpret state constitutional guarantees in a manner different than the United States Supreme Court has interpreted comparable federal constitutional guarantees."

The petitioner also argues that the retroactive application of West Virginia Code § 62-12-13(e) violates both federal and state ex post facto laws because it creates a significant risk of increased punishment. The petitioner then contends that the decision of the West Virginia Supreme Court of Appeals in State ex rel. Carper v. West Virginia Parole Board, 509 S.E.2d 864 (W. Va. 1998), violates the separation of powers doctrine because it effectively rewrote § 62-12-13(e) by adding vague procedural safeguards in order to permit the statute to pass constitutional muster. Lastly, the petitioner argues that he was wrongly denied parole based, at least in part, on the basis of his HIV condition, in violation of the ADA.

This amendment affected the "setoff" date for those serving life with mercy sentences, which the West Virginia Supreme Court of Appeals ("WVSCA") has described as meaning "the time until the next parole review is given by a parole board when it denies parole to a prisoner . . . ." State ex rel. Carper v. W. Virginia Parole Bd., 509 S.E.2d 864, 869 (W. Va. 1998). Despite the section's re-codification and subsequent amendment, the pertinent language concerning the current three-year setoff has not changed.

This amendment affected the "setoff" date for those serving life with mercy sentences, which the West Virginia Supreme Court of Appeals ("WVSCA") has described as meaning "the time until the next parole review is given by a parole board when it denies parole to a prisoner . . . ." State ex rel. Carper v. W. Va. Parole Bd., 509 S.E.2d 864, 869 (W. Va. 1998). Despite the section's re-codification and a subsequent amendment, as noted in the PF&R, the pertinent language concerning the current three-year setoff has not changed. See W. Va. Code § 62-12-13(e) (2017).

Accordingly, plaintiff's objection is OVERRULED. Plaintiff also objects to Magistrate Judge VanDervort's conclusion that West Virginia Code § 62-12-13(e), as amended, does not violate the ex post facto clause based upon the decision of the West Virginia Supreme Court of Appeals in State ex rel. Carper v. West Virginia Parole Board, 509 S.E.2d 864, 871 (W. Va. 1998). According to Neuman, "[t]he ruling that the West Virginia Parole Board can violate ex post facto rules is clearly illegal and needs to be overturned by this Honorable Court."

In that regard, it is well established in our precedents that this Court has the authority to "interpret [the West Virginia] Constitution to require higher standards of protection than afforded by comparable federal constitutional standards," Pauley v. Kelly , 162 W. Va. 672, 679, 255 S.E.2d 859, 864 (1979) (internal citation omitted); see alsoState v. Mullens , 221 W. Va. 70, 89, 650 S.E.2d 169, 188 (2007) (" ‘This Court has determined repeatedly that the West Virginia Constitution may be more protective of individual rights than its federal counterpart.’ State ex rel. Carper v. West Virginia Parole Bd., 203 W.Va. 583, 590 n. 6, 509 S.E.2d 864, 871 n. 6 (1998). In other words, we may ‘interpret state constitutional guarantees in a manner different than the United States Supreme Court has interpreted comparable federal constitutional guarantees.’

Syllabus Point 3, Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994). State ex rel. Carper v. W. Va. Parole Bd. , 203 W. Va. 583, 586, 509 S.E.2d 864, 867 (1998).

the eighth amendment to the United States Constitution, criminal punishment of chronic alcoholics for public intoxication held unconstitutional); Syl. Pt. 1, State v. Bonham, 173 W. Va. 416, 317 S.E.2d 501 (1984); Queen v. W. Virginia Univ. Hosps., Inc., 179 W. Va. 95, 106, 365 S.E.2d 375, 386 (1987) ("It is not yet clear just what the federal courts will determine to be adequate notice and a meaningful opportunity to respond, and we, of course, reserve our option to extend broader protections to workers than the federal courts may require."); Syl. Pt. 3, State v. Neuman, 179 W. Va. 580, 581, 371 S.E.2d 77, 78 (1988) ("The West Virginia Constitution, art. III, § 10, provides a criminal defendant a level of due process protection at least equal to that provided through the fifth and fourteenth amendments to the United States Constitution, and may, in certain circumstances, require higher standards of protection."); Syl. Pt. 1, State v. Osakalumi, 194 W Va. 758, 461 S.E.2d 504 (1995); State ex rel. Carper v. W. Va. Parole Board, 203 W. Va. 583, 590 & n.6, 509 S.E.2d 864, 871 & n.6 (1998) ("This Court has determined repeatedly that the West Virginia Constitution may be more protective of individual rights than its federal counterpart."); State v. Mullens, 221 W. Va. 70, 89, 650 S.E.2d 169, 188 (2007) ("we may interpret state constitutional guarantees in a manner different than the United States Supreme Court has interpreted comparable federal constitutional guarantees") (internal citation omitted). In a scholarly article in the West Virginia Law Review, the late Justice Thomas B. Miller reviewed this Court's precedents and found two common analytical strands in the relevant cases.