Charles Plymail v. Patrick Mirandy , 671 F. App'x 869 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6547
CHARLES F. PLYMAIL,
Petitioner - Appellant,
v.
PATRICK A. MIRANDY, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:14-cv-06201)
Submitted: November 18, 2016 Decided: November 23, 2016
Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Charles F. Plymail, Appellant Pro Se. Shannon Frederick Kiser,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles F. Plymail seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing without prejudice his 28 U.S.C. § 2254 (2012)
petition for failing to exhaust his state remedies. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012).
A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both
that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a
constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000).
Our review of the present record, which is significantly
constrained by the absence of state court documents, convinces
us that the district court’s procedural ruling is debatable.
Before presenting claims in federal court, a § 2254 petitioner
must exhaust all available state court remedies. 28 U.S.C.
§ 2254(b)(1); Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir.
2015); Jones v. Sussex I State Prison, 591 F.3d 707, 713 (4th
Cir. 2010). However, a petitioner may be excused from the
exhaustion requirement if “there is an absence of available
2
[s]tate corrective process[] or circumstances exist that render
such process ineffective to protect the rights of the
[petitioner].” 28 U.S.C. § 2254(b)(1)(B). State remedies may
be rendered ineffective by inordinate delay or inaction in state
proceedings. See Farmer v. Circuit Court of Md. for Balt. Cty.,
31 F.3d 219, 223 (4th Cir. 1994) (“There is . . . authority for
treating sufficiently diligent, though unavailing, efforts to
exhaust as, effectively, exhaustion, and for excusing efforts
sufficiently shown to be futile in the face of state
dilatoriness or recalcitrance.”).
Here, the West Virginia Supreme Court of Appeals took over
20 years to decide Plymail’s direct appeal of his criminal
conviction. Our sister circuits have found much shorter delays
sufficient to excuse the exhaustion requirement. See, e.g., Lee
v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (“[I]t is
difficult to envision any amount of progress justifying an
eight-year delay in reaching the merits of a petition.”); Coe v.
Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (holding, in the
context of four-year delay, that “a prisoner need not fully
exhaust his state remedies if the root of his complaint is his
inability to do so.”).
The magistrate judge and the district court relied on the
West Virginia Supreme Court of Appeals’ finding that much of the
delay was caused by Plymail’s difficult relationship with his
3
many appointed counsel. However, the district court and the
magistrate judge also noted that the State failed to provide any
records from the state court proceedings. The few records
available in the present record indicate that not all of the
delay can be attributed to Plymail; for example, he successfully
petitioned at one juncture for a writ of mandamus ordering a
resentencing to allow him to perfect his appeal. Plymail also
alleged that he suffered from a life-threatening medical
condition that rendered him unable to ensure the timely
prosecution of his appeal.
The magistrate judge and district court also noted that
Plymail’s state habeas petition remains pending in state court.
The state petition had been pending for a year when Plymail
filed his § 2254 petition, and has been pending for a total of
more than three years. As the magistrate judge and the district
court correctly recognized, it is not surprising a state habeas
proceeding would not be adjudicated while a direct appeal was
pending; however, the state court’s inaction is troubling given
that one of Plymail’s claims concerned the inordinate delay in
adjudicating his direct appeal. Accordingly, based on the
record before us, we conclude that the district court
prematurely dismissed Plymail’s petition for failure to exhaust
4
his state remedies. * See Rule 4, R. Governing § 2254 Proceedings
(providing for sua sponte dismissal “[i]f it plainly appears
from the petition and any attached exhibits” that petitioner is
not entitled to relief).
By this disposition, we indicate no view as to the ultimate
success of Plymail’s petition. We simply conclude that the
current state of the record is insufficient to establish as a
matter of law that Plymail’s petition should be dismissed for
failure to exhaust.
Accordingly, we grant a certificate of appealability,
vacate the district court’s judgment, and remand the case to the
district court for further proceedings. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
* We likewise conclude that, on the present record,
“reasonable jurists could debate whether” the 20-year delay in
adjudicating Plymail’s direct appeal constituted a due process
violation. Slack, 529 U.S. at 484 (internal quotation marks
omitted); see United States v. Johnson, 732 F.2d 379, 381 (4th
Cir. 1984) (“[U]ndue delay in processing an appeal may rise to
the level of a due process violation.”).
5