Timothy Austin v. Marvin Plumley , 565 F. App'x 175 ( 2014 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-6661
    TIMOTHY JARED AUSTIN,
    Petitioner – Appellant,
    v.
    MARVIN PLUMLEY, Warden, 1
    Respondent - Appellee.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Bluefield. David A. Faber, Senior
    District Judge. (1:11-cv-00892)
    Argued:   January 28, 2014                 Decided:   April 7, 2014
    Before KING, SHEDD, and THACKER, Circuit Judges.
    Vacated and remanded by unpublished per curiam opinion. Judge
    Shedd wrote a dissenting opinion.
    ARGUED: Steven Strasberg, UNIVERSITY OF GEORGIA SCHOOL OF LAW,
    Athens, Georgia, for Appellant.     Elbert Lin, OFFICE OF THE
    ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia,
    for Appellee.     ON BRIEF: Erica Joan Hashimoto, Associate
    Professor, Victoria Cuneo, Third Year Law Student, Appellate
    1
    Marvin Plumley is substituted as Respondent for his
    predecessor, Adrian Hoke, as Warden of the Huttonsville, West
    Virginia, Correctional Center. See Fed. R. App. P. 43(c)(2).
    Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens,
    Georgia, for Appellant.    Patrick Morrisey, Attorney General,
    Christopher S. Dodrill, Assistant Attorney General, OFFICE OF
    THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Timothy        Jared        Austin       (“Appellant”)           appeals        the
    district court’s dismissal of his federal habeas petition, filed
    against     the        Warden     of     the        Huttonsville,           West     Virginia
    Correctional Center (hereinafter, the “State”), pursuant to 
    28 U.S.C. § 2254
    .           While serving a term of incarceration in the
    West Virginia prison system for breaking and entering, Appellant
    walked    away    from    an     inmate    road       crew      and    subsequently     pled
    guilty to attempted escape.
    At his sentencing for the attempted escape conviction,
    the West Virginia court (the “State Sentencing Court”) sentenced
    Appellant    to    a    term    of     imprisonment        that       was   neither    purely
    concurrent       nor    purely    consecutive         to       his    original      sentence.
    Appellant filed an expedited motion to correct that sentence
    with the State Sentencing Court, and when it was not ruled upon
    for   nearly     50    days,     Appellant         filed   a    petition      for    writ    of
    mandamus, or in the alternative, an original petition for habeas
    corpus to the Supreme Court of Appeals of West Virginia (the
    “State Supreme Court”).                That petition asked the State Supreme
    Court to direct the State Sentencing Court to act on Appellant’s
    motion to correct the sentence, or to rescind his sentence as
    violative of the Due Process Clause.                       Four days after the State
    Sentencing Court received a copy of the petition, it entered an
    amended   sentencing       order,       changing       Appellant’s          sentence    to    a
    3
    purely consecutive one, thereby extending Appellant’s time in
    prison.
    Appellant appealed the amended sentencing order to the
    State     Supreme      Court,   arguing          that   he     was       entitled    to    a
    presumption       of    judicial    vindictiveness.                The    State     Supreme
    Court, however, found that in the amended sentencing order, the
    State Sentencing Court only meant to clarify its original intent
    in   sentencing        Appellant,    and,       thus,   the    presumption        did     not
    attach.      In considering Appellant’s subsequent federal habeas
    petition, the district court concluded that this finding was not
    based on an unreasonable determination of the facts; therefore,
    a presumption of judicial vindictiveness did not arise.
    We disagree.          The State Supreme Court’s decision was
    based   on   an     unreasonable     determination            of   the    facts     in    the
    record, and the unique facts presented in this case give rise to
    a presumption of vindictiveness, which the State fails to rebut.
    As   such,   we    vacate    the    judgment       of   the    district      court,       and
    remand with instructions to grant a conditional writ of habeas
    corpus.
    I.
    A.
    State Proceedings
    In 2004, Appellant was convicted in Wood County, West
    Virginia, of breaking and entering and was sentenced to one to
    4
    fifteen      years’    imprisonment,        beginning    December      29,     2004.
    Appellant was to be eligible for parole in March 2010.                         While
    serving   the    breaking    and    entering    sentence,      Appellant      walked
    away from an inmate road crew, was arrested two days later, and
    charged   with    escape.      On   September     24,   2009,    Appellant      pled
    guilty to the lesser-included offense of attempted escape, which
    carried a sentence of one to three years’ imprisonment.
    1.
    Original Sentence
    On November 12, 2009, Appellant was sentenced for the
    attempted     escape    by   the    State    Sentencing      Court   in     McDowell
    County, West Virginia.             At the sentencing hearing, the State
    Sentencing Court first asked for Appellant’s discharge date on
    the   breaking    and    entering     conviction,       to   which    Appellant’s
    counsel   responded,     “December     2014,    he   believes,       Your    Honor.”
    J.A. 13. 2      The court then asked, “[W]hen is he eligible for
    parole again?” to which counsel responded, “This March [i.e.,
    March 2010].”     
    Id.
        The State Sentencing Court then explained,
    [I]f I remember correctly, you were out on a work
    crew.   . . .  And you just walked off.    That’s not
    good. It’s not the type of jail escape that we see in
    the movies where there’s guns blazing and everything
    of that nature, and it’s not a jail escape where
    somebody has tunneled under to get out, but this is
    2
    Citations to the “J.A.” refer to the Joint Appendix filed
    by the parties in this appeal.
    5
    still bad because you have breached the trust, and
    when you breach a trust, it makes it harder on your
    fellow inmates because the correctional facility may
    take the position that, we’re just not going to do
    this anymore, and that’s not good. That’s not good.
    
    Id.
       The court continued,
    Now, I’ve got several ways that I can sentence you. I
    can sentence you to a one to three, starting today
    [November 12, 2009], or I can sentence you to a one to
    three starting when you’re discharged, but I’m going
    to split the baby in half. I’m going to sentence you
    to a one to three, and your one to three is going to
    begin March of 2010, which means you’re not going to
    get out on parole in March, but you will start your
    one year then.
    Now, why am I doing it that way?       Well, I’m sure
    you’ve suffered some punishment by losing good time
    and stuff because of this but because that’s not a
    good thing to do, to walk off.      Now, had you done
    those other ways and there had been a violent type
    jail escape or whatever, I would have put that at the
    end of your sentence, but it wasn’t.    If I remember,
    you just walked off in the Berwind area and spent two
    or three days out in the woods, and they got you in
    the Town of War, and for that, you’ve already received
    some punishment because of your loss of good time and
    probably, loss of the possibility of being paroled,
    but I do think you should serve some time for it; so,
    by making [the sentence] beginning in March of 2010,
    which is about 4 or 5 months from now and not giving
    you any back credit, that’s probably going to cost you
    -- well, it will cost you your opportunity for parole
    because you won’t be eligible then until March of
    2011, and if the parole board wants to parole you on
    both of those, that’s fine, and if not, well, you’ll
    remember that the next time you go for a little
    stroll. Okay?
    
    Id. at 15-16
     (emphases supplied).    The sentencing order, which
    was entered November 23, 2009, correspondingly stated,
    It is, therefore, ORDERED that the defendant . . . be
    sentenced to the custody of the Commissioner of the
    6
    West   Virginia   Division   of  Corrections   for   an
    indeterminate period of not less than one (1) year nor
    more   than   three  (3)   years   at  an   appropriate
    correctional facility designated by said Commissioner
    and no fine. It is further ORDERED that the defendant
    serve this sentence beginning March 2010.
    
    Id. at 20
     (emphasis supplied).
    2.
    Motion to Correct Sentence
    On August 31, 2010, nearly six months after he began
    serving     his   sentence     on    the        attempted     escape   conviction,
    Appellant    filed   a    motion    with       the   State   Sentencing   Court   to
    correct that sentence pursuant to West Virginia Rule of Criminal
    Procedure 35(a). 3       Appellant contended,
    the Court was under the misapprehension that it could
    defer the start of the instant sentence until
    Defendant discharged his previous sentence, [but] the
    Court’s sentencing discretion was limited [to] whether
    Defendant’s instant one-to-three (1-3) year sentence
    would run concurrent with or consecutive to his
    previous one-to-fifteen (1-15) year sentence[.]
    . . .
    [A]t   the  November   12,  2009,  Sentencing  Hearing
    Defendant    was    already   eligible    for   parole
    consideration on the [breaking and entering] sentence
    . . . . Therefore, by delaying Defendant’s effective
    sentence date . . . to March 1, 2010, three and a half
    (3 1/2) months past his actual sentence date of
    3
    This rule provides, “The court may correct an illegal
    sentence at any time and may correct a sentence imposed in an
    illegal manner within the time period provided herein for the
    reduction of sentence [i.e., within 120 days after the sentence
    is imposed].” W. Va. R. Crim. P. 35(a).
    7
    November 12, 2009, the [State Sentencing Court]
    increased Defendant’s minimum term on the instant
    offense to fifteen and a half (15 1/2) months.
    Def.’s Mot. for Summ. J., Ex. 5, Austin v. Hoke, No. 1:11-cv-892
    (S.D. W. Va. Nov. 10, 2011; filed Sept. 24, 2012), ECF No. 27-1
    at   52-53       (first   emphasis       supplied,      others     in     original).
    Attached to the motion was a proposed amended sentencing order,
    which ostensibly set forth a purely concurrent sentence and an
    effective       sentencing   date   of    November   12,    2009,       rather   than
    March 2010.        Appellant also asked that the motion be expedited
    because    he    was   scheduled    to    meet   with    the     parole    board   in
    November 2010.
    3.
    Amended Sentence
    By mid-October 2010, when the motion had not yet been
    ruled upon, Appellant submitted a “Petition for Writ of Mandamus
    or   in   the    alternative   Original       Petition    for     Writ    of   Habeas
    Corpus” (the “Petition”) to the State Supreme Court, which was
    formally filed on October 19, 2010.              The State Sentencing Court
    received a copy of the Petition on October 18, 2010, and four
    days later, on October 22, 2010 -- before the State Supreme
    Court ruled on the Petition -- the State Sentencing Court issued
    an order amending the original sentence (the “Amended Sentencing
    Order”), which stated,
    8
    On the 18th day of October, 2010, the undersigned
    Judge received a copy of a Writ of Mandamus or in the
    alternative Original Petition for Writ of Habeas
    Corpus [and a] proposed Amended Sentencing Order.
    After reviewing this matter, it is clear to this Court
    that an Amended Scheduling [sic] Order is needed to
    clarify the original Sentencing Order entered on
    November 23, 2009. . . .    It was the intent of this
    sentencing court that the sentence imposed on November
    12, 2009 be served consecutively with the unrelated
    sentence the defendant was already serving on November
    12, 2009.   It was the intent of the sentencing court
    to give the defendant credit for time served from his
    arraignment to the date of sentencing and that the
    balance of his sentence be served consecutively to the
    sentence he was already serving in an unrelated
    matter.
    J.A.   22    (emphasis      supplied).         The   State   Supreme   Court    then
    denied the Petition on November 22, 2010, simply stating, “the
    Court is of opinion that a rule should not be awarded, and the
    writ prayed for by the petitioner is hereby refused.”                     Austin,
    No. 1:11-cv-892, ECF No. 27-1 at 57.
    4.
    Appeal of Amended Sentence
    Appellant appealed the Amended Sentencing Order to the
    State Supreme Court.           Appellant argued that after he “invoked
    lawful      remedies   to    correct     an    illegal   sentence,”    the     State
    Sentencing Court “increased [his] aggregate sentence based on
    purported, but unreasoned, judicial intent that is controverted
    by the . . . record, thereby creating a presumption of judicial
    vindictiveness . . . .”           Austin, No. 1:11-cv-892, ECF No. 27-1
    9
    at 83.   On October 25, 2011, the State Supreme Court rejected
    the appeal, explaining,
    It is clear from the amended sentencing order that
    some confusion arose from the language of the original
    sentencing order.    In clarifying its intention, the
    circuit court stated in the amended sentencing order
    that, “[i]t was the intent of the sentencing court
    that the sentence imposed on November 12, 2009[,] be
    served consecutively with the unrelated sentence that
    the [petitioner] was already serving on November 12,
    2009.”      . . .   It is from the resulting confusion
    that petitioner finds the basis for his argument that
    his sentence was impermissibly increased by thirty-
    three months upon entry of the amended sentencing
    order.     However, this Court finds no merit in
    petitioner’s   argument.     Had   the   circuit  court
    originally intended for these two sentences to run
    concurrently, it is hard to imagine how the subsequent
    sentence would have punished the petitioner or served
    to deter him from future escapes.      It is clear from
    the record that the circuit court intended for the
    sentences to run consecutively, and that the sentence
    was not impermissibly increased.         As such, the
    petitioner’s due process rights were not violated by
    the entry of the amended sentencing order.
    J.A. 25 (emphasis supplied).
    B.
    Federal Proceedings
    Two weeks after the State Supreme Court’s decision, on
    November 10, 2011, Appellant filed a habeas petition pursuant to
    
    28 U.S.C. § 2254
     in the United States District Court for the
    Northern District of West Virginia.      The matter was transferred
    to the Southern District of West Virginia, and the State filed a
    motion for summary judgment on September 24, 2012.      The habeas
    petition and the motion were referred to the federal magistrate
    10
    judge.    The    magistrate     judge   issued     a   proposed   findings   and
    recommendation (“PF&R”) on December 4, 2012, recommending that
    Appellant’s     petition   be    granted     and   the    State’s   motion   be
    denied.   The PF&R explained,
    Petitioner argues that the West Virginia Supreme Court
    erred in finding that “[i]t is clear from the record
    that the circuit court intended for the sentences to
    run consecutively.”      Based on a review of the
    [pertinent] documents, the undersigned finds that
    Petitioner has rebutted the presumption of correctness
    by clear and convincing evidence. During Petitioner’s
    sentencing hearing conducted on November 12, 2009, the
    [State    Sentencing   Court]    specifically  ordered
    Petitioner’s escape sentence to begin in March, 2010.
    The record reveals that the [State Sentencing Court]
    ordered Petitioner’s escape sentence to begin in
    March, 2010, after being advised that Petitioner’s
    discharge date for his prior sentence was December,
    2014.   The [State Sentencing Court] explained that if
    Petitioner’s escape had involved violence, the Court
    would have directed Petitioner’s escape sentence to
    run consecutive to his prior sentence.
    J.A. 49 (internal citations and footnote omitted).                   Then, the
    magistrate court explained that Appellant met the requirements
    for the presumption of vindictiveness:
    A presumption of vindictiveness arises when “there is
    a ‘reasonable likelihood’ that an unexplained increase
    in sentence is the product of actual vindictiveness on
    the part of the sentencing authority.”     [Alabama v.]
    Smith, 
    490 U.S. 794
     [(1989)]. In the instant case, the
    [State Sentencing Court] merely explained that an
    Amended Sentencing Order was necessary “to clarify the
    original Sentencing Order entered on November 23,
    2009.”   The [State Sentencing Court], however, failed
    to adequately explain the increase in Petitioner’s
    sentence.    Accordingly, the undersigned finds that
    Petitioner’s   amended   sentence  gives   rise   to  a
    presumption   of   vindictiveness   as   there   is   a
    “reasonable likelihood” that the unexplained increase
    11
    is the product of actual vindictiveness on the part of
    the sentencing authority.
    Id. at 52-53 (internal citation omitted).                 The magistrate court
    also considered whether the State could rebut this presumption,
    and concluded that it could not.              See id. at 53-54.
    The   district   court,   however,    disagreed.       After   the
    State filed objections to the PF&R, the district court reviewed
    the matter and concluded the PF&R did not take into account the
    level of deference owed to the State Supreme Court’s decision.
    The district court explained,
    It is fair to say that the record contains conflicting
    evidence as to the trial court’s intentions with
    respect to Austin’s sentence and is susceptible to
    several different interpretations.        One of those
    possible interpretations -- that the [State Sentencing
    Court] intended for Austin’s sentence on the Attempted
    Escape to run consecutive to his undischarged term of
    imprisonment -- “is fairly and adequately supported by
    the record, and is therefore entitled to section
    2254’s   presumption   of   correctness.”      Lenz v.
    Washington, 
    444 F.3d 295
    , 299 (4th Cir. 2006).
    . . .
    Furthermore, [Appellant] has not shown that the
    [S]tate [Supreme] [C]ourt’s determination “was based
    on an unreasonable determination of the facts in light
    of   the  evidence    presented   in   the  State   court
    proceeding.” Merzbacher [v. Shearin], 706 F.3d [356,]
    367 [(4th Cir. 2013)].       Given that there was some
    evidence   that   the    [State]   [S]entencing   [C]ourt
    intended to impose a consecutive sentence, this court
    cannot conclude that the [S]tate [Supreme] [C]ourt’s
    determination in this regard was unreasonable.
    J.A.   64,     65.     The   district    court     also   disagreed   that    the
    presumption of vindictiveness was met, stating,
    12
    [W]hile   his   Rule   35  motion   remained  pending,
    [Appellant] filed a petition for writ of mandamus with
    the [State Supreme Court].      The amended sentencing
    order was issued prior to the higher court ruling on
    the mandamus petition.     Accordingly, there was no
    reversal or similar event “prod[ding] the sentencing
    court into a posture of self-vindication.”
    Id.    at   67    (quoting        Texas    v.        McCullough,      
    475 U.S. 134
    ,      139
    (1986)).         Therefore, the district court dismissed Appellant’s
    petition. 4
    Appellant      filed        a     timely       notice    of       appeal    and    a
    petition      for    certificate          of    appealability,         which       this    court
    granted on September 6, 2013.
    II.
    We review de novo a district court’s denial of relief
    in habeas corpus proceedings under 
    28 U.S.C. § 2254
    .                                See Wolfe
    v.    Johnson,      
    565 F.3d 140
    ,        160    (4th    Cir.    2009).        Under       the
    Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
    our    review       of    state    court        adjudications         is    constrained         to
    decisions        that     were     either        “contrary       to,       or    involved       an
    unreasonable application of, clearly established Federal law,”
    or “based on an unreasonable determination of the facts in light
    of the evidence presented in the State court proceeding.”                                       
    28 U.S.C. § 2254
    (d)(1), (2).
    4
    The district court did not                            specifically        rule     on    the
    State’s motion for summary judgment.
    13
    III.
    Appellant       filed   his    habeas     petition   pursuant    to   
    28 U.S.C. § 2254
    , which provides,
    (d) An application for a writ of habeas corpus on
    behalf of a person in custody pursuant to the judgment
    of a State court shall not be granted with respect to
    any claim that was adjudicated on the merits in State
    court proceedings unless the adjudication of the claim
    --
    (1) resulted in a decision that was contrary to,
    or involved an unreasonable application of,
    clearly established Federal law, as determined by
    the Supreme Court of the United States; or
    (2) resulted in a decision that was based on an
    unreasonable determination of the facts in light
    of the evidence presented in the State court
    proceeding.
    
    28 U.S.C. § 2254
    (d).          Appellant’s first argument pertains to
    subsection (d)(2), above:         He contends the State Supreme Court
    rendered its decision based on an unreasonable determination of
    the facts in light of the evidence presented to it.                   Second, he
    argues   that   he   is    entitled       to    a   presumption   of    judicial
    vindictiveness, and the State has not rebutted this presumption.
    We will address each argument in turn.
    A.
    1.
    AEDPA       creates       a          presumption     that       factual
    determinations made by the state court are correct.                       See 
    28 U.S.C. § 2254
    (e)(1).        Further, “[t]he applicant shall have the
    14
    burden of rebutting the presumption of correctness by clear and
    convincing      evidence.”            
    Id.
         We    recently    held,   “‘[T]o       secure
    habeas relief, petitioner must demonstrate that a state court’s
    finding . . . was incorrect by clear and convincing evidence,
    and     that       the       corresponding            factual     determination           was
    “objectively unreasonable” in light of the record before the
    court.’” Merzbacher            v.     Shearin,     
    706 F.3d 356
    ,    364    (4th      Cir.
    2013) (quoting Miller–El v. Cockrell, 
    537 U.S. 322
    , 348 (2003)).
    The Supreme Court has explained that on federal habeas review,
    we must uphold a state court decision when, “[r]eviewing all of
    the   evidence,”         the   state        court’s    decision      “even    if    .    .   .
    debatable, . . . is not unreasonable.”                     Wood v. Allen, 
    558 U.S. 290
    ; 
    130 S. Ct. 841
    , 850 (2010).
    In Taylor v. Grounds, the Seventh Circuit concluded
    that the Illinois Supreme Court reached a factual determination
    that was objectively unreasonable in light of the record.                                 See
    
    721 F.3d 809
    ,    820     (7th    Cir.     2013).      Taylor     filed    a    habeas
    petition based on the argument that his trial counsel, who also
    represented his co-defendant brother, operated under a conflict
    of interest.          In rejecting Taylor’s claim, the Illinois Supreme
    Court relied upon the trial court’s “purported implicit factual
    finding that [the attorney] rejected [] three witnesses [that
    would   have       been    helpful       to    Taylor     but   detrimental         to   his
    brother]     for      strategic       reasons      unrelated    to    the    conflict        of
    15
    interest    .    .    .     .”      
    Id. at 821
    .        The    state     supreme       court
    acknowledged         that    the    trial       court       “made    no     explicit    factual
    finding” but, based on conflicting testimony at the evidentiary
    hearing,     “evidently            found     [the        attorney’s]          testimony      more
    credible.”      
    Id.
     (internal quotation marks omitted).
    The       Seventh       Circuit      discounted          this    factual    finding
    because,     after        examining        the        trial       court’s     transcript,      it
    concluded,       “[t]he          ruling    contains          no     mention     of    the    word
    ‘credibility’ nor includes any language suggesting a comparison
    of believability . . . [and] such a sparse decision devoid of
    factual    matter         cannot     support          the     Illinois      Supreme     Court’s
    determination of an implicit credibility finding.”                               Grounds, 721
    F.3d at 822; see also Taylor v. Maddox, 
    366 F.3d 992
    , 1001 (9th
    Cir. 2004) (“[W]here the State courts plainly misapprehend or
    misstate     the       record        in     making          their     findings,        and    the
    misapprehension goes to a material factual issue that is central
    to    petitioner’s           claim,        that        misapprehension          can     fatally
    undermine       the    fact-finding          process,          rendering       the    resulting
    factual finding unreasonable.”).
    Like Grounds, here, there is no support in the record
    for the State Supreme Court’s finding that the State Sentencing
    Court “intended for the sentences to run consecutively.”                                     J.A.
    25.   First, the State Sentencing Court was aware that Appellant
    was   eligible        for    discharge          on    the     underlying       conviction      in
    16
    December 2014, but in its sentencing order, it deliberately set
    the effective sentencing date at Appellant’s parole eligibility
    date, March          2010,      instead.      Compare    J.A.     20    (“It    is   .   .   .
    ORDERED that the defendant serve this sentence beginning March
    2010.”), with id. at 13 (Appellant’s counsel advising the State
    Sentencing         Court     that    Appellant’s        release        date    was   likely
    December 2014).
    Whereas the State Sentencing Court’s order is enough
    to demonstrate the court’s intent at sentencing, see Bell v.
    Thompson, 
    545 U.S. 794
    , 805 (2005) (“Basic to the operation of
    the judicial system is the principle that a court speaks through
    its judgments and orders.” (internal quotation marks omitted)),
    the   State        Sentencing       Court’s    order    was     consistent       with    and
    bolstered by its spoken words at the sentencing hearing.                                 The
    sentencing hearing transcript shows that, instead of a purely
    concurrent or consecutive sentence, the court intended to assign
    some hybrid of these two options.                  See J.A. 15 (“I can sentence
    you     to    a    one     to    three,      starting    today     [which       would    run
    concurrently], or I can sentence you to a one to three starting
    when you’re discharged [which would run consecutively], but I’m
    going    to       split   the    baby   in    half.”    (emphasis       supplied));      
    id.
    (“Now, had you [escaped] those other ways and there had been a
    violent type jail escape or whatever, I would have put that at
    the end of your sentence, but it wasn’t.”).                       Therefore, on this
    17
    record      it    is    crystal    clear       that   the    State   Sentencing     Court
    intended to sentence Appellant neither to completely concurrent,
    nor completely consecutive sentences.
    The State Supreme Court reasoned that if the trial
    court actually intended the sentences to run concurrently, “it
    is    hard    to       imagine    how    the    subsequent     sentence     would    have
    punished         the   petitioner       or   served    to    deter   him    from   future
    escapes.”         J.A. 25.       This statement, however, is also belied by
    the record.             The trial court expressly stated its intent to
    impose extra punishment for the escape:
    [B]y making [the sentence] beginning in March of 2010,
    which is about 4 or 5 months from now and not giving
    you any back credit, that[] . . . will cost you your
    opportunity for parole because you won’t be eligible
    then until March of 2011, and if the parole board
    wants to parole you on both of those, that’s fine, and
    if not, well, you’ll remember that the next time you
    go for a little stroll.
    Id.    at    15-16.        See    Maddox,       
    366 F.3d at 1008
        (“Failure   to
    consider key aspects of the record is a defect in the fact-
    finding process.”).
    Based on the foregoing, we conclude that Appellant has
    rebutted the “presumption of correctness” of the State Supreme
    Court’s decision “by clear and convincing evidence,” namely, the
    words in the original sentencing order and the statements of the
    State Sentencing Court during the sentencing hearing.                         
    28 U.S.C. § 2254
    (e)(1); see also Bell v. Ozmint, 
    332 F.3d 229
    , 237 (4th
    18
    Cir.       2003).           Thus,      Appellant         has       met     the      requirements           of
    § 2254(d)(2).            The district court erred in deciding otherwise.
    2.
    Having        decided        that           Appellant             has         satisfied
    § 2254(d)(2), i.e., the State Supreme Court’s decision was based
    on    an     unreasonable            determination           of    the     facts,         we    must       now
    resolve       the       level    of    deference         otherwise            owed       to    the     State
    Supreme Court’s decision.
    The Supreme Court of the United States has directed
    that the federal courts should not apply AEDPA deference when “a
    state       court’s        adjudication         of       a   claim        is       dependent         on    an
    antecedent         unreasonable            application            of    federal         law”    under       
    28 U.S.C. § 2254
    (d)(1).                  Panetti v. Quarterman, 
    551 U.S. 930
    , 953
    (2007).        Although neither the Supreme Court nor this court has
    yet     to    consider          the        issue,    the          weight       of       the     authority
    establishes         that        we    should    likewise               decline      to    apply        AEDPA
    deference when a petitioner satisfies § 2254(d)(2).                                            See, e.g.,
    Magnan       v.     Trammell,         
    719 F.3d 1159
    ,         1175    (10th          Cir.     2013)
    (“Because the [state court’s decision on a jurisdictional issue]
    ‘was    based       on    an    unreasonable         determination                 of    the    facts      in
    light of the evidence presented in the State court proceeding,’
    
    28 U.S.C. § 2254
    (d)(2),          we    are          obligated         to        review      the
    jurisdictional            issue       de    novo[.]”);         Hurles         v.    Ryan,       
    706 F.3d 1021
    , 1030 (9th Cir. 2013); Cooper v. Sec’y, Dep’t of Corr., 646
    
    19 F.3d 1328
    , 1353 (11th Cir. 2011);              Rice v. White, 
    660 F.3d 242
    ,
    252 & n.4, 257 (6th Cir. 2011).
    Therefore,   we       proceed    to    consider      the   judicial
    vindictiveness argument under a purely de novo standard, owing
    no deference to the State Supreme Court’s decision.
    B.
    1.
    In North Carolina v. Pearce, the Supreme Court of the
    United States held, “Due process of law . . . requires that
    vindictiveness      against     a    defendant      for   having    successfully
    attacked his first conviction must play no part in the sentence
    he receives after a new trial.”                 
    395 U.S. 711
    , 725 (1969),
    overruled on other grounds by Alabama v. Smith, 
    490 U.S. 794
    (1989).       Further, “since the fear of such vindictiveness may
    unconstitutionally deter a defendant’s exercise of the right to
    appeal or collaterally attack his first conviction, due process
    also requires that a defendant be freed of apprehension of such
    a retaliatory motivation on the part of the sentencing judge.”
    
    Id.
         In light of these conclusions, the Supreme Court explained
    that whenever a judge “imposes a more severe sentence upon a
    defendant after a new trial, the reasons for his doing so must
    affirmatively appear.”          Id. at 726.         The Supreme Court later
    interpreted Pearce as applying “a presumption of vindictiveness,
    which   may    be   overcome    only   by     objective   information     in   the
    20
    record justifying the increased sentence.”                         Wasman v. United
    States,       
    468 U.S. 559
    ,    565    (1984)    (internal     quotation        marks
    omitted).
    The broad sweep of Pearce has been limited, however.
    The Supreme Court decided that the presumption did not arise in
    the     following       situations:        where     an   increased      sentence       was
    imposed by a superior court in a system that gave the defendant
    convicted of a misdemeanor in an inferior court the right to
    trial de novo in a superior court, see Colten v. Kentucky, 
    407 U.S. 104
    , 116 (1972); a second jury, on retrial following a
    successful appeal, imposed a higher sentence than a prior jury,
    where     the    second      jury    was    completely     unaware       of    the   first
    sentence, see Chaffin v. Stynchcombe, 
    412 U.S. 17
    , 27 (1973);
    and   a   defendant          was   first    sentenced     by   a   jury       and,    after
    retrial, was sentenced to a longer term of imprisonment by the
    judge who granted the defendant’s motion for new trial, where
    the defendant desired that the judge resentence him, and the
    judge provided sufficient reasons for the increase, see Texas v.
    McCullough, 
    475 U.S. 134
    , 140 (1986).
    The    Supreme      Court    has     extended      the    presumption,
    however,        to    the    prosecutorial        vindictiveness      context        where,
    while     a     defendant’s        misdemeanor     conviction      was    on    de    novo
    appeal, the prosecutor filed a felony indictment based on the
    same conduct.           See Blackledge v. Perry, 
    417 U.S. 21
    , 27 (1974)
    21
    (“[T]he    opportunities           for    vindictiveness          [where     the     central
    figure is not the judge or jury, but the prosecutor] are such as
    to impel the conclusion that due process of law requires a rule
    analogous to that of the Pearce case.”).
    In    1989,      Pearce       was     partially       overruled     in    Smith,
    which held that when a defendant receives one sentence after a
    guilty plea, and then receives an increased sentence after the
    guilty plea was vacated and the defendant was later convicted in
    a jury trial, the presumption does not attach.                            See 
    490 U.S. at 803
    .     Smith explained, “While the Pearce opinion appeared on its
    face to announce a rule of sweeping dimension, our subsequent
    cases have made clear that its presumption of vindictiveness
    ‘do[es]    not    apply      in   every     case    where     a    convicted       defendant
    receives a higher sentence on retrial.’”                          
    Id. at 799
     (quoting
    McCullough,      
    475 U.S. at 138
    ).      Rather,       Smith    declared       that
    Pearce’s application was “limited . . . to circumstances where
    its    objectives      are    thought      most     efficaciously         served.”        
    Id.
    (internal    quotation         marks      omitted).         Indeed,       the   “evil     the
    Pearce    Court     sought        to   prevent      was   not      the     imposition      of
    enlarged sentences after a new trial, but vindictiveness of a
    sentencing judge.”           
    Id.
     (internal quotation marks and alteration
    omitted).
    Thus, after Smith, a petitioner is required to show a
    “reasonable      likelihood        that     the    increase       in   sentence      is   the
    22
    product of actual vindictiveness on the part of the sentencing
    authority.”         
    490 U.S. at 799
            (internal    quotation          marks      and
    citations omitted); see also United States v. Williams, 
    444 F.3d 250
    , 254 (4th Cir. 2006) (“[T]he presumption of vindictiveness
    is   not   designed       to     prevent           the    imposition      of       an   increased
    sentence ‘for some valid reason associated with the need for
    flexibility and discretion in the sentencing process,’” but is
    “‘premised on the apparent need to guard against vindictiveness
    in the resentencing process.’” (quoting Chaffin, 
    412 U.S. at 25
    )).      It   follows        that     when       a     court   imposes       a    more      severe
    sentence     than     the        one    initially             imposed,    the       court         must
    “affirmatively        identify[]                  relevant       conduct           or    events,”
    justifying      the   increased             sentence,         Wasman,    
    468 U.S. at 572
    ,
    including those that throw “new light upon the defendant’s life,
    health,    habits,    conduct,              and    mental      and   moral     propensities,”
    Pearce, 
    395 U.S. at 723
     (internal quotation marks omitted).
    2.
    a.
    Against this backdrop, we must first consider whether
    the Pearce presumption can apply in this case.                                 We have before
    us a unique factual scenario:                            A defendant is sentenced; he
    files an expedited Rule 35(a) motion to correct an allegedly
    illegal    sentence;        he    then       files        a   petition    asking         a    higher
    tribunal to direct the sentencing court to rule on the motion or
    23
    void his sentence entirely; before that petition is ruled upon,
    and only four days after it is received by the sentencing court,
    the   sentencing     court    acknowledges        receipt    of   a   copy   of   the
    petition and increases its original sentence, citing a reason
    that is clearly unsupported by the record.                  This unique scenario
    is one of first impression in this circuit, and elsewhere.                        We
    look to the policy and logic of Pearce and its progeny as our
    guide.
    The Pearce opinion was “premised on the apparent need
    to guard against vindictiveness in the resentencing process.”
    Chaffin, 
    412 U.S. at 25
     (emphasis in original).                    The presumption
    “exists to protect against the possibility of vindictiveness;
    therefore, the circumstances of resentencing must be examined to
    determine whether they carry such an inherent threat.                        If not,
    there [i]s no reason to apply the presumption.”                       United States
    v.    Rodriguez,    
    602 F.3d 346
    ,    354     (5th   Cir.     2010)   (citation
    omitted).     In     the    prosecutorial       vindictiveness        context,    the
    presumption was “designed to spare courts the unseemly task of
    probing the actual motives of the prosecutor.”                    United States v.
    Goodwin,    
    457 U.S. 368
    ,   372    (1982)    (internal      quotation    marks
    omitted).    The Supreme Court explained,
    Motives are complex and difficult to prove.      As a
    result, in certain cases in which action detrimental
    to the defendant has been taken after the exercise of
    a legal right, the Court has found it necessary to
    “presume” an improper vindictive motive. . . . Given
    24
    the severity of such a presumption, however -- which
    may operate in the absence of any proof of an improper
    motive and thus may block a legitimate response to
    criminal conduct -- the Court has done so only in
    cases   in    which    a  reasonable   likelihood   of
    vindictiveness exists.
    
    Id. at 373
     (emphasis supplied).                 In this vein, Smith made clear
    that the purpose of the Pearce presumption was to prevent “not
    the   imposition     of   enlarged       sentences    after    a   new     trial,      but
    vindictiveness       of   a     sentencing       judge.”      
    490 U.S. at 799
    (internal quotation marks omitted).                Likewise, the Fifth Circuit
    has stated, “[i]mposition of a harsher sentence by the original
    judge triggers a presumption of vindictiveness that acts as an
    aid to defendants who would otherwise have to shoulder a heavy
    burden of proof.”         Kindred v. Spears, 
    894 F.2d 1477
    , 1479 (5th
    Cir. 1990).
    Although      the    Supreme    Court    has    been     presented         with
    situations in which the alleged vindictiveness occurred “after a
    new trial,” Wasman, 
    468 U.S. at 565
     (internal quotation marks
    omitted);    “upon    retrial,”      Blackledge,      
    417 U.S. at 26
    ;       “upon
    conviction    after       retrial,”       Chaffin,    
    412 U.S. at 24
    ;    and
    “following a successful appeal and reconviction,” Colten, 
    407 U.S. at 115
    , in lower courts, the presumption has been extended
    beyond these       contexts.       For    example,    some    federal       courts       of
    appeals     have     extended      the     Pearce     presumption          to     parole
    determinations.       See, e.g., Marshall v. Lansing, 
    839 F.2d 933
    ,
    25
    947 (3d Cir. 1988) (“Just as a sentencing judge might resent a
    challenge     to    an    underlying         conviction     which      he   himself      had
    overseen, so too might the [Parole] Commission look unkindly
    upon a successful court challenge to its rating of a prisoner’s
    offense severity, thus supplying a motive for retaliation.”);
    Bono    v.    Benov,      
    197 F.3d 409
    ,       419    (9th   Cir.      1999)   (“The
    Commission, which acts by statute as a singular entity, has an
    institutional motivation to protect its ‘much-valued discretion’
    by engaging in the type of vindication that might discourage
    challenges to its authority, particularly those made by resort
    to the courts.”).           At least one court has suggested that the
    presumption        be    extended       to    the    context      of    a    Rule   35(a)
    challenge.       See United States v. Paul, 
    783 F.2d 84
    , 88 (7th Cir.
    1986) (“[W]e held in United States v. Jefferson[, 
    760 F.2d 821
    (7th Cir. 1985), vacated on other grounds and remanded, 
    474 U.S. 806
        (1985)]     that    Pearce’s      proscription        applies        not   only    to
    resentencing       after    retrial,         but    also    to    resentencing      after
    vacation of an illegal sentence.                    Thus, Pearce would prohibit a
    district court from increasing a sentence upon a defendant’s
    successful Rule 35(a) attack, in the absence of the required
    information of misconduct.” (citation omitted)).                            Still others
    have    recognized         the    need        for     protection        from      judicial
    vindictiveness when a party simply demonstrates its intention to
    appeal.      See Mahoney v. State, 
    281 A.2d 421
    , 425 (Md. App. 1971)
    26
    (“It logically follows that if the courts are prohibited from
    exercising vindictiveness on a retrial because of a defendant’s
    successful appellate attack, they are likewise prohibited from
    exercising vindictiveness because of a defendant’s intention to
    appeal.”). 5
    In   light   of   this   guidance,   we   are   satisfied   that
    application of the presumption of vindictiveness in this case
    would comport with the spirit and logic set forth in Pearce,
    Smith, and their progeny.      Wasman declared,
    If it was not clear from the Court’s holding in
    Pearce, it is clear from our subsequent cases applying
    Pearce that due process does not in any sense forbid
    enhanced sentences or charges, but only enhancement
    motivated   by   actual   vindictiveness   toward  the
    defendant for having exercised guaranteed rights.
    5
    Some state courts have also applied Pearce upon a
    defendant’s attack of his sentence or intent to appeal, even if
    such action had not yet been taken or ruled upon by a higher
    tribunal. See, e.g., State v. Hildago, 
    684 So.2d 26
    , 31-32 (La.
    Ct. App. 1996) (due process violated where trial judge increased
    a defendant’s sentence after defendant attacked his plea and
    then filed a motion to reconsider the sentence, and the court
    stated, “instead of . . . accepting his sentence, he chose
    instead to attack his plea. . . . And in thinking about it, I
    think I was too easy on him the first time around.”); State v.
    Thompson, 
    613 A.2d 192
    , 193 (Vt. 1992) (amended sentence
    violated due process where it was increased after the defendant
    “argu[ed] that the court’s proposed sentence was illegal and []
    expressed [her] intent to appeal”); Colburn v. State, 
    501 S.W.2d 680
    , 683 (Tex. Crim. App. 1973) (due process violated where
    harsher sentence was imposed “to punish the appellant more
    severely because he gave notice of appeal”).
    27
    Wasman,    
    468 U.S. at 568
       (first     emphasis    in    original,    second
    emphasis supplied); see also Bordenkircher v. Hayes, 
    434 U.S. 357
    , 363 (1978) (“To punish a person because he has done what
    the law plainly allows him to do is a due process violation of
    the most basic sort.”); Williams, 47 F.3d at 660 (“It is . . . a
    violation of due process to penalize a criminal defendant for
    exercising his constitutional rights or for pursuing a statutory
    right     of    appeal       or    collateral      remedy.”      (internal     citation
    omitted)); see also United States v. Ludien, 
    769 F.2d 981
    , 985
    (4th Cir. 1985) (“[I]t is beyond doubt that a sentence enhanced,
    whether before or after commencement of service, because of the
    vindictiveness or other plainly improper motive of the trial
    court would be fundamentally unfair and would deny the defendant
    due process.”).
    Here, it is without question that when Appellant was
    resentenced,         he     was   exercising       rights     guaranteed      under    the
    statutes and Constitution of West Virginia.                         See 
    W. Va. Code § 53-1-3
        (establishing           statutory    right     to   file    a   petition     for
    mandamus); 
    Id.
     § 53-4A-1 (providing that a person may file a
    petition       for    habeas      corpus   with    the   State      Supreme    Court    to
    “seek[] . . . correction of [a] sentence”); W. Va. Const. art.
    III, § 17 (“[J]ustice shall be administered without sale, denial
    or delay.”); State ex rel. Patterson v. Aldredge, 
    317 S.E.2d 805
    , 807 (W. Va. 1984) (“In addition to the constitutional and
    28
    ethical provisions which compel the prompt disposition of all
    civil    actions,            it   should       be    noted    that     our    rules        of    civil
    procedure             anticipate        that        judges     will     act        in     a     timely
    fashion.”).
    This case is also different from those Supreme Court
    cases in which a different entity resentenced the defendant.
    For example, in Chaffin, where a jury, rather than a judge,
    increased             a    defendant’s     sentence,         the   jury      did        not     have   a
    “personal stake” in the prior conviction and was not “sensitive
    to     the       institutional           interests         that    might      occasion          higher
    sentences by a judge desirous of discouraging what he regards as
    meritless appeals.”                   Chaffin, 
    412 U.S. at 27
    .                  In Colten, the
    Court rejected the notion that “the hazard of being penalized
    for seeking a new trial, which underlay the holding of Pearce,
    also inheres in the de novo trial arrangement.”                                         
    407 U.S. at 116
    .     But the State Sentencing Court, which was presented with a
    motion to correct its allegedly illegal sentence -- and soon
    after,       a    copy       of   a    petition      for     mandamus     and      habeas       corpus
    relief submitted to a higher tribunal based on that sentence --
    certainly had a personal stake in the original sentence, and
    because          it       still   retained       jurisdiction         over    the        Rule    35(a)
    motion, the hazard of Appellant being penalized was pervasive.
    Moreover,           applying       the     rebuttable         presumption            of
    vindictiveness               in   this     case       will    further        the        prophylactic
    29
    function of the presumption.            Cf. United States v. Campbell, 
    106 F.3d 64
    , 67 (5th Cir. 1997) (The presumption is “a prophylactic
    [rule] addressed more to protect future litigants who appeal
    than to the injustice done in the actual case,” and “[t]olerance
    of a court’s vindictiveness might ‘chill’ a defendant’s right to
    seek an appeal of her sentence.” (quoting Wasman, 
    468 U.S. at 564
    )).        We cannot -- and would not -- declare that the statutory
    right to file a petition for mandamus or habeas corpus in West
    Virginia is any less susceptible to a chilling effect based on
    vindictiveness than the statutory right to file an appeal.
    b.
    The State contends that the presumption does not apply
    in this case because “there must have been some action by a
    higher court that placed the sentencing judge in a defensive
    posture; it is not triggered when a sentencing court amends a
    sentence on its own.”              Appellee’s Br. 26 (citing Kindred, 
    894 F.2d at 1479-80
    ).            The State contends, “‘unlike the judge who
    has been reversed,’ the judge who amends a sentence on his own
    has     ‘no     motivation    to    engage    in    self-vindication.’”       
    Id.
    (quoting McCullough, 
    475 U.S. at 139
    ).
    The State relies on McCullough, in which the Supreme
    Court    concluded     that     the   Pearce       presumption   did   not   arise
    because, inter alia, the same judge who gave the defendant an
    increased sentence after retrial previously granted the motion
    30
    for new trial in the first place.                  The Court contrasted that
    situation      with   one   in    which    “the   judge    [was]   reversed,”       and
    explained,
    Presuming vindictiveness [because a party’s motion for
    a new trial was granted] alone would be tantamount to
    presuming that a judge will be vindictive towards a
    defendant merely because he seeks an acquittal. . . .
    We decline to adopt the view that the judicial
    temperament of our Nation’s trial judges will suddenly
    change upon the filing of a successful post-trial
    motion.   The presumption of Pearce does not apply in
    situations where the possibility of vindictiveness is
    this speculative, particularly since the presumption
    may often “operate in the absence of any proof of an
    improper motive and thus . . . block a legitimate
    response to criminal conduct[.]”
    McCullough, 
    475 U.S. at 139
     (quoting Goodwin, 
    457 U.S. at 373
    )
    (emphasis supplied).
    This passage in McCullough hardly suggests that Pearce
    could   never    apply      to    a   situation   where,    after    a   post-trial
    motion is filed, an enhanced sentence is handed down by the same
    judge   with    no    additional      reasoning    provided.        In   fact,   such
    dicta must be assessed in the context of McCullough, where the
    defendant chose to have the judge sentence him, and that judge
    had actually granted the defendant’s motion for a new trial,
    agreeing on the record that the defendant’s claims had merit;
    therefore, the trial judge “had no motivation to engage in self-
    vindication.”         
    475 U.S. at 139
    .    Here,    the    possibility       of
    vindictiveness        is   much   less     “speculative”    than    in   a   case   in
    which a new trial motion was granted “alone.”                       
    Id.
     (internal
    31
    quotation marks omitted).                  Indeed, the State Sentencing Court
    was     in    a     posture     in   which    that     motivation      was    reasonably
    possible.
    The State also relies on the Fifth Circuit’s Kindred
    decision       for    the      proposition     that    “vindictiveness         becomes   a
    danger only where an event prods the sentencing court into a
    posture of self-vindication.”                 
    894 F.2d at 1480
    ; see also Nulph
    v. Cook, 
    333 F.3d 1052
    , 1057-58 (9th Cir. 2003) (“We have held
    that no reasonable likelihood of vindictiveness exists unless
    there    is        some   ‘triggering      event,’      such    as    a     reversal    and
    remand.”).           In   so    holding,     Kindred    decided      that    reversal    on
    appeal of an order and remand for a new hearing was a sufficient
    triggering event for the presumption, but review by a parole
    commission, which occurred merely by operation of statute, was
    not.         See    id.   at     1480.       The   court   of     appeals      explained,
    “Kindred’s . . . appearance before the Commission was not in the
    role of the errant schoolboy who dared challenge his elder’s
    wisdom but rather that of a passive cog in a statutory machine.”
    Id.
    Kindred, even if it were binding on this court, would
    not alter our decision today.                  Appellant was hardly a “passive
    cog in a statutory machine” when he filed his Rule 35(a) motion
    and petition for mandamus or habeas relief.                          Kindred, 
    894 F.2d at 1480
    .           He was, in fact, in the role of “errant schoolboy”
    32
    because he was filing a petition to command the State Sentencing
    Court to rule on his motion and force his “elder” to act, or, in
    the alternative, void his sentence altogether.
    Furthermore,   the    State     Sentencing       Court    was   in    a
    unique position based on the nature of the motions that were
    filed: the State Sentencing Court retained jurisdiction of the
    Rule 35(a) motion after the Petition was filed with the State
    Supreme Court, and thus it was able to rule on the motion and
    moot the mandamus issue before a “triggering event” could occur.
    See Nulph, 
    333 F.3d at 1058
    .             Thus, in this narrow case, the
    requirement of a “triggering event” does not logically apply.
    For these reasons, we conclude that the Pearce presumption of
    vindictiveness applies to this case.
    c.
    Having decided that the presumption applies, we must
    decide   whether   Appellant,     in    this     instance,     is    entitled    to
    § 2254 relief on the basis of the presumption.                 In Williams, we
    explained   that   in   order    to    benefit    from   the   presumption       of
    vindictiveness, a petitioner must show (1) his second sentence
    is more severe than his original sentence, and (2) a reasonable
    likelihood of actual vindictiveness exists.              See 444 F.3d at 254
    (internal quotation marks omitted).               If the petitioner makes
    these showings, “‘a presumption arises that a greater sentence
    has been imposed for a vindictive purpose -- a presumption that
    33
    must be rebutted by objective information . . . justifying the
    increased sentence.’”          Id. (quoting Smith, 
    490 U.S. at 798-99
    ).
    The parties do not dispute the first requirement.                             As
    to   the     second    requirement,         in     deciding       whether     there    is   a
    reasonable      likelihood          of     actual        vindictiveness,        we    should
    determine      if   “the   reasons         for    the     court     [imposing    a    higher
    sentence] ‘affirmatively appear.’”                       Williams, 
    444 F.3d at 254
    (quoting Smith, 
    490 U.S. at 798
    ); see also United States v.
    Bello, 
    767 F.3d 1065
    , 1068 (4th Cir. 1985) (“Since Pearce, due
    process requires that where a judge sentences a defendant more
    severely after the defendant’s successful appeal, a ‘presumption
    of vindictiveness’ is raised that may only be overcome by the
    sentencing      judge’s       advancing          appropriate      reasons.”      (internal
    citation omitted)).
    In an attempt to convince this court that the reasons
    for the higher sentence actually appear in the record, the State
    relies heavily on the State Sentencing Court’s reasoning that it
    meant   to    “clarify”       its    original          sentencing    order.      But   this
    argument fails factually and legally.                         Factually, the record
    contradicts     that     conclusion.              As    explained     supra,    the    State
    Sentencing Court clearly did not intend to sentence Appellant to
    a purely consecutive sentence for the escape conviction.                                 And
    legally,     this     court    has       held,    “Regardless        of   the   sentencing
    judge’s expressed intent, the increased severity of the later
    34
    sentence     would       create        a         reasonable     apprehension     of
    vindictiveness in defendants . . . that might well deter them
    from taking meritorious appeals.”                Bello, 767 F.2d at 1068.
    If it were not enough that the State Sentencing Court
    provided no reason (or, worse still, a reason contradicted by
    the record) for the increased sentence, there are several other
    factors     that,     viewed      together,         demonstrate     a     reasonable
    likelihood of vindictiveness: (1) Appellant filed a motion to
    correct an illegal sentence with the State Sentencing Court; (2)
    Appellant filed the Petition; (3) the State Sentencing Court
    increased Appellant’s sentence only four days after receiving a
    copy   of   the     Petition;    and       (4)    the   State   Sentencing     Court
    specifically mentioned the Petition in the Amended Sentencing
    Order.
    The State posits that there may have been two reasons
    why the State Sentencing Court issued the Amended Sentencing
    Order, which would defeat Appellant’s claim that there was a
    reasonable    likelihood        of     vindictiveness.            These   proffered
    reasons are, “the Amended Sentencing Order was needed to clarify
    [Appellant]’s sentence,” and “the sentencing judge thought there
    was some merit to [Appellant]’s argument [and] an amendment was
    needed to correct [his] sentence.”                  Appellee’s Br. 17; see also
    id. at 31-32.       However, aside from the State Sentencing Court’s
    bare words in the Amended Sentencing Order, which the record
    35
    contradicts, there is no evidentiary support for either one of
    these     assumptions.          Therefore,     Appellant     is    entitled     to
    application of the presumption.
    d.
    In light of the foregoing analysis, the burden must
    shift to the State to rebut the presumption of vindictiveness,
    “which    may   be   overcome    only   by    objective   information     in   the
    record justifying the increased sentence.”                Wasman, 
    468 U.S. at 565
       (internal      quotation    marks      omitted).      In    its   appellate
    submissions, the State does not attempt to rebut any potential
    application     of    the   presumption. 6         In     such    circumstances,
    Appellant is entitled to federal habeas relief. 7
    6
    At oral argument, the State explained that the State
    Sentencing Court “acknowledging that [it] had received the [Rule
    35] motion and the petition for writ of mandamus,” coupled with
    the unsettled state of the law in West Virginia regarding the
    original sentence, provides an “objective basis” for the
    increased sentence.    Oral Argument at 37:25-38:40, Austin v.
    Plumley,    No.  13-6661   (Jan.    28,   2014),   available   at
    http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-
    arguments. To the extent the State was proffering this argument
    in an attempt to rebut the presumption of vindictiveness, its
    attempt   falls  flat.     Rather   than   presenting  “objective
    information,” Wasman, 
    468 U.S. at 565
    , the State requires us to
    speculate that the State Sentencing Court believed its initial
    sentence was illegal. That we cannot do.
    7
    We emphasize that the Pearce presumption is a prophylactic
    measure meant to protect a defendant’s due process rights, and
    our application thereof is not at all a commentary on the
    propriety of the State Sentencing Court.     As such, our ruling
    does not evince a finding of actual vindictiveness.           See
    Blackledge, 
    417 U.S. at 28
     (“The rationale of our judgment in
    (Continued)
    36
    3.
    We    turn       now    to     the    proper   remedy.        If    a    §   2254
    petitioner       is    entitled       to    habeas      relief,     the   court       should
    “dispose of the matter as law and justice require.”                              
    28 U.S.C. § 2243
    .        Appellant         asks    us    to   remand     with   instructions        to
    reinstate his initial sentence -- an interesting proposition,
    considering       it    was        Appellant’s        challenge     to    that       initial
    sentence as illegal under West Virginia law that was the impetus
    to this appeal in the first place. 8                       The State, on the other
    hand,   asks      us    to     direct       the       district    court    to       issue   a
    conditional writ requiring resentencing of Appellant within a
    the Pearce case . . . was not grounded upon the proposition that
    actual retaliatory motivation must inevitably exist. Rather, we
    emphasized that since the fear of such vindictiveness may
    unconstitutionally deter a defendant’s exercise of the right to
    appeal or collaterally attack his first conviction, due process
    also requires that a defendant be freed of apprehension of such
    a retaliatory motivation on the part of the sentencing judge.”
    (internal quotation marks omitted)).
    8
    The State has taken conflicting positions on whether the
    delayed effective sentencing date of the original sentence
    contravenes West Virginia law. Compare Austin, No. 1:11-cv-892,
    ECF No. 28 (Resp’t’s Mot. Summ. J.) at 19 (“In the case-at-bar
    the Petitioner claims, wrongfully, that the trial court’s first
    sentence was illegal.” (emphasis supplied)), with Appellee’s Br.
    33 (“By [delaying the effective sentencing date to March 2010],
    the [State Sentencing Court] effectively made Austin’s sentence
    a 1.5 to 3 year term, arguably in contravention of West Virginia
    Code § 61-11-8.” (emphasis supplied)), and Oral Argument at
    23:04-24:00, Austin, No. 13-6661 (State explaining that there
    has been no controlling decision from the Supreme Court of
    Appeals of West Virginia on this point).    In any event, we are
    not called upon to decide this issue of West Virginia law.
    37
    certain period of time, and mandating that the sentencing be
    conducted before a different judge.
    We agree a conditional writ is appropriate.                         See Madej
    v.   Briley,    
    371 F.3d 898
    ,    900       (7th    Cir.     2004)       (“When    the
    constitutional       error     is    curable,      the     court       often    issues     a
    conditional writ[.]”).              We will not, however, intrude on the
    state court’s dominion and dictate that a different sentencing
    judge should preside over this matter.
    We observe, however, that Appellant’s challenge to the
    legality of his original sentence was never resolved.                              In the
    interests      of   justice,        Appellant      is    entitled       to     have     this
    question resolved in state court, particularly since the State
    has taken conflicting positions on whether the original sentence
    was illegal.        Thus, we vacate the judgment of the district court
    and remand for issuance of a conditional writ of habeas corpus,
    requiring    the     Amended    Sentencing         Order   to     be    vacated.         See
    Milliken v. Bradley, 
    418 U.S. 717
    , 746 (1974) (“[A]ll remedies
    are [designed] to restore the victims of [constitutional wrongs]
    to the position they would have occupied in the absence of such
    conduct.”); Rushen v. Spain, 
    464 U.S. 114
    , 119-20 (1983) (“The
    adequacy of any remedy is determined solely by its ability to
    mitigate    constitutional          error,    if   any,    that     has      occurred.”).
    Appellant’s original sentence should thus be reinstated, and his
    Rule 35(a) motion should be resolved in accordance with the law
    38
    of West Virginia and the Due Process Clause of the Constitution.
    If   the   motion     is   not   resolved    within     a   reasonable      time,
    Appellant’s sentence on the attempted escape conviction should
    be rescinded.
    IV.
    For      the    foregoing   reasons,     the     judgment   of     the
    district court is vacated, and this matter is remanded to the
    district   court     for   the   issuance    of   the   conditional    writ    of
    habeas corpus explained above.
    VACATED AND REMANDED
    39
    SHEDD, Circuit Judge, dissenting:
    I   agree   with   the   district   court   that   “[i]n   this    case,
    nothing occurred to trigger the presumption of vindictiveness,”
    because “there was no reversal or similar event ‘prod[ding] the
    sentencing court into a posture of self-vindication.’”                   Austin
    v. Plumley, No. 1:11–0892, 
    2013 WL 1336997
    , at *5 (S.D. W.Va.
    March 29, 2013) (quoting Kindred v. Spears, 
    894 F.2d 1477
    , 1480
    (5th   Cir.   1990)).      Accordingly,    I   would   affirm   the   district
    court’s denial of Austin’s 
    28 U.S.C. § 2254
     petition.
    40