Arnold v. Hoffe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7521
JAMES GUY ARNOLD,
Petitioner - Appellant,
versus
C. MARK HOFFE; OFFICE OF THE ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CA-01-11-3)
Submitted: January 31, 2005 Decided: March 28, 2005
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James Guy Arnold, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Guy Arnold, formerly a West Virginia prisoner,
appeals the district court’s order denying his motion pursuant to
Fed. R. Civ. P. 60(b) for relief from the district court’s prior
orders dismissing his petition under 28 U.S.C. § 2254 (2000) and
denying his motion for reconsideration. Having previously granted
a certificate of appealability, see 28 U.S.C. § 2253(c) (2000), we
now find the district court abused its discretion by denying
Arnold’s motion.1 Accordingly, we vacate the order denying the
motion and remand with instructions.
Arnold filed his petition on February 26, 2001, and the
district court first dismissed the petition on April 17, 2001.
Arnold appealed, and we granted a certificate of appealability,
vacated the district court’s dismissal order, and remanded for
further factual findings. See Arnold v. Hoffe, No. 01-6863, 2001
WL 141735, **1 (4th Cir. Nov. 20, 2001) (unpublished). We
determined that while the record showed Arnold was no longer in
prison pursuant to his state conviction when he filed his petition,
the record was insufficient to determine whether he was on
probation or parole for the state conviction at that time.
Accordingly, we could not determine whether Arnold was subject to
1
We note that because the motion sought a remedy for a defect
in the collateral review process, it was “a proper Rule 60(b)
motion” and not a successive habeas application. See United
States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003).
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“restraints on [his] liberty . . . not shared by the public
generally” for purposes of determining whether he was “in custody”
under § 2254. See Jones v. Cunningham, 371 U.S. 236, 240 (1963);
see also Garlotte v. Fordice, 515 U.S. 39, 41 (1995) (petitioner
receiving consecutive sentences “remains ‘in custody’ under all of
his sentences until all are served”); United States v. Hillary, 106
F.3d 1170, 1172 (4th Cir. 1997) (“for jurisdictional purposes,
consecutive sentences must be viewed in the aggregate”). Moreover,
we directed the court to consider the merits of Arnold’s petition
if it found he was “in custody” within the meaning of the statute.
Following our decision, Arnold filed a statement
concerning jurisdiction in the district court claiming that in
addition to his prison term, the state court imposed a consecutive
five-year term of supervision that was still undischarged, and he
was therefore “in custody” when he filed his petition. He also
requested the state be ordered to produce the record of conviction
and transcripts of sentencing. Noting our determination that the
record was unclear whether Arnold was on parole or probation at the
time of filing, the district court ordered the state “to answer the
incarceration status of the defendant.” The state responded that
Arnold was convicted of one count of computer fraud and sentenced
to two years in state prison; he was discharged by expiration of
the sentence in 1999; and according to criminal records available
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to the state division of corrections, he was “not presently on
probation or parole for any offense committed in West Virginia.”
Based on the state’s response, the district court
dismissed the petition, and Arnold moved for reconsideration. He
claimed that transcripts from his state sentencing hearing or a
certificate from the state judge would show that a consecutive
five-year term of probation had been imposed, and the state had
misrepresented his custody status. The district court denied the
motion. Subsequently, Arnold moved for relief under Rule 60(b).
He reminded the court of our remand for factual findings, noted he
was convicted of two different counts, and provided transcript
excerpts from his sentencing hearing in which the state judge
discussed a sentence of two years on count two, and a consecutive
suspended sentence of five years on count three, for which he would
be placed on probation. He again requested relief based upon the
state’s alleged misrepresentation of his custody status. Without
requesting a response from the state, the district court denied the
motion “[b]ecause the evidence presented [was] not sufficient to
prove [Arnold] was serving a probation term.”
After granting a certificate of appealability, we
directed the Appellees (hereafter, the “state”) to file a
responsive brief pursuant to 4th Cir. R. 22(a)(1)(B) addressing,
inter alia, whether the district court erred in its procedural
ruling dismissing Arnold’s Rule 60(b) motion. Subsequent to our
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order, the state obtained a copy of the transcript of Arnold’s plea
and sentencing hearing from the court reporter and determined
Arnold had accurately described that he was in fact convicted of
two counts and sentenced by the state judge to “a two-year term in
the penitentiary on Count II, followed by a suspended sentence and
five years of supervised probation on Count III.”2 However, the
state represents that due to “inadvertence or neglect,” no
conviction or sentencing order reflecting the five-year term was
ever entered in state court.3 Therefore, the state contends that
it “simply advised the district court of the facts as shown by the
record,” and “[b]ased on the record before the district court, the
court did not have jurisdiction to consider Arnold’s § 2254
petition, nor grounds to grant his motion for reconsideration under
Rule 60(b).”
In light of our prior mandate that the district court
determine whether Arnold was “in custody” within the meaning of the
statute when he filed his petition, Arnold’s persistent claims that
he received a consecutive five-year suspended probationary
sentence, his submission of portions of the transcript, which
2
Although the state has offered to provide the court a copy of
the transcript, it is not currently part of the record. Upon
remand, we direct the district court to obtain this and other state
documents relevant to its review.
3
We note that subsequent to the state’s filing of its brief,
the state court evidently entered a “Conviction and Sentencing
Order and Order of Probation (Entered nunc pro tunc).”
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evidently was the only available evidence of his sentence, the
district court’s failure to obtain a response or complete record
from the state, and the “exceptional circumstances” of this case,
see Compton v. Alton S.S. Co., Inc., 608 F.2d 96, 102 (4th Cir.
1979), we find the district court abused its discretion by denying
Arnold’s Rule 60(b) motion based on his failure to sufficiently
prove his probationary term.
We therefore remand to the district court for
reconsideration of Arnold’s motion in light of all the evidence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
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