Under the Constructive Amendment, any substantial amendment, direct or indirect, of an indictment must be resubmitted to the grand jury. Pendleton newly discovered ineffectiveness by trial counsel's failure to object that the lower court's instructions to the petit jury on three substantial elements such as Couceal, Enticement, and Entice Away, which were not alleged in the indictment for Kidnapping. Does this violate Fifth and Sixth Amendments of the U.S. Constitution?

Under the Malicious Assault statute, W.Va. Code §61-2-9(a) states, in part: any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill. Pendleton newly discovered ineffectiveness by trial counsel's failure to object that the indictment had wrongfully alleged ["with the intent to cause bodily injury"]. Does this violate Sixth and Fourteenth Amendments of the U.S. Constitution?

Under West Virginia Common law definition of robbery is: the unlawful taking and carrying away, of money or goods, from the person of another or in his presence, by force or putting him in fear, with intent to Steal the money or goods. Pendleton's indictment alleged the surplusage: "did violently steal" pursuant to West Virginia Code §62-9-6. Does this violate clearly established federal law in U.S. v. Russell, 369 U.S. 749?

Under Blockburger v. United States, 284 U.S. 299 (1932), to determine there are two offenses or only one, each provision requires proof of a fact the other does not. Charges of robbery and larceny, Pendleton's indictment failed to allege two additional elements: that the taking has been from the person of another or in his presence; and that the taking is by force or putting the person in fear; separating robbery from larceny. Does this violates the Blockburger test?

Question not identified