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Plymail v. Mirandy

United States District Court, S.D. West Virginia, Huntington Division

September 27, 2017

CHARLES F. PLYMAIL, Petitioner,
v.
PATRICK A. MIRANDY, Warden, St. Mary's Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.

         This action, brought pro se, was referred to a United States Magistrate Judge for proposed findings of fact and recommendation for disposition (“PF&R”) pursuant to 28 U.S.C. § 636(b)(1)(B). Now pending before the Court is Respondent's Second Motion to Dismiss for Failure to Exhaust (ECF No. 58). The Magistrate Judge recommends that Respondent's Second Motion to Dismiss for Failure to Exhaust (ECF No. 58) be granted and that Petitioner's Petition under 28 U.S.C. § 2254 (ECF No. 1) be dismissed without prejudice (ECF No. 66). Petitioner filed objections to the PF&R on June 30, 2017 (ECF No. 70). For the reasons set forth below, the Court accepts Petitioner's objections as specified and rejects the Magistrate Judge's findings and recommendations to the extent that they conflict with the following Memorandum Opinion and Order.

         I. Introduction

         On January 31, 2014, Petitioner Charles F. Plymail filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 with this Court (ECF No. 1). In his Petition, Petitioner alleges the following grounds for habeas relief:

1. The State's 19-year delay in affording [Petitioner] an appeal of [his] criminal conviction violates the due process provisions of the Fourteenth Amendment to the United States Constitution.
2. Because the jurors at [Petitioner's] trial were subjected to judicial coercion, [his] conviction was obtained in violation of the due process provisions of the Fourteenth Amendment of the United States Constitution.
3. The plainly improper remarks made by the prosecutor during the State's rebuttal closing were prejudicial enough to have denied [Petitioner's] right to a fair trial and, thus, violated the due process provisions of the Fourteenth Amendment to the United States Constitution.
4. Because [Petitioner's] waiver of the right to testify was based on misleading statements made by court and counsel, [Petitioner's] conviction was obtained in violation of the due process provisions of the Fourteenth Amendment to the United States Constitution.
5. Because the trial court lacked jurisdiction to enhance [Petitioner's] sentence under West Virginia's recidivist statute, its imposition of a life sentence violated the due process provisions of the Fourteenth Amendment to the United States Constitution.
6. Because [Petitioner] was not provided with effective assistance of counsel, [his] conviction was obtained in violation of the Sixth Amendment to the United States Constitution.

(ECF No. 1).

         a. Procedural History

         Petitioner's case was referred to Magistrate Judge VanDervort for findings of fact and recommendation for disposition on February 26, 2014 (ECF No. 4). After supplemental and responsive pleadings were filed by Petitioner and Respondent, Respondent filed a Motion to Dismiss and Incorporated Memorandum on March 25, 2015 (ECF No. 14). Petitioner responded to the Motion on April 9, 2015 (ECF Nos. 18 and 19), and Respondent replied on April 10, 2015 (ECF No. 20). On December 21, 2015, Magistrate Judge VanDervort entered a PF&R in which he recommended that Petitioner's Petition be dismissed without prejudice for failure to exhaust (ECF No. 31). Petitioner filed objections to the PF&R on January 11, 2016 (ECF No. 36).

         By Memorandum Opinion and Order entered on March 30, 2016, this Court adopted Magistrate Judge VanDervort's recommendation and dismissed Petitioner's Petition without prejudice (ECF Nos. 38 and 39). Petitioner appealed (ECF No. 42). By per curiam opinion entered on November 23, 2016, the United States Court of Appeals for the Fourth Circuit found that the District Court had “prematurely dismissed [Petitioner's] petition for failure to exhaust his state remedies, ” and, accordingly, vacated the District Court's judgment and remanded the case to the District Court for further proceedings (ECF No. 50).

         On remand, this case was referred to Magistrate Judge Aboulhosn by Order entered December 19, 2016 (ECF No. 54). On December 21, 2016, Magistrate Judge Aboulhosn directed Respondent to file a supplemental response to Petitioner's Petition and to include records “that would facilitate a determination of [Petitioner's claim that he is excused from the exhaustion requirement because there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of Petitioner]” (ECF No. 55).

         Pursuant to Magistrate Judge Aboulhosn's Order, Respondent filed his Answer, a Second Motion to Dismiss for Failure to Exhaust, and a Memorandum of Law in Support on February 2, 2017 (ECF Nos. 57, 58, 59). Petitioner responded on March 17, 2017 (ECF No. 65).

         After consideration of the above, Magistrate Judge Aboulhosn entered the present PF&R on May 23, 2017 (ECF No. 66). Pursuant to his proposed findings, Magistrate Judge Aboulhosn recommends that the District Court grant Respondent's Second Motion to Dismiss for Failure to Exhaust (ECF No. 58) and dismiss Petitioner's Petition (ECF No. 1) without prejudice (ECF No. 66). Petitioner filed objections to the PF&R on June 30, 2017 (ECF No. 70). For reasons specified herein, the District Court rejects the Magistrate Judge's proposed findings as specified and declines to accept the Magistrate Judge's recommendations for disposition.

         b. Exhaustion of Petitioner's First Five Section 2254 Claims

         At the time Petitioner filed the present Section 2254 Petition for Writ of Habeas Corpus with this Court in January 2014 (ECF No. 1), Petitioner's direct appeal of his criminal case (West Virginia State Court Case No. 93-F-50) was still pending in the West Virginia state court system (see ECF. No. 58-78). In that appeal, Petitioner presented the first five claims now before this Court to the West Virginia Supreme Court (see ECF Nos. 58-60, 1), thereby giving the highest court in the state the opportunity to consider Petitioner's constitutional claims.

         The Supreme Court of West Virginia decided Petitioner's direct appeal on November 20, 2015 (ECF No. 58-78). As Respondent concedes, the Supreme Court's decision rendered Petitioner's first five claims now before this Court exhausted (ECF No. 59). As such, the Court will focus exclusively on Petitioner's remaining claim of ineffective assistance of counsel.

         c. Petitioner's Unexhausted Claim of Ineffective Assistance of Counsel

         Though Respondent concedes that Petitioner has exhausted his first five claims, Respondent nonetheless asks this Court to grant his Second Motion Dismiss for Failure to Exhaust based on Petitioner's failure to exhaust his sixth claim of ineffective assistance of counsel (ECF No. 59). In his Section 2254 Petition, Petitioner alleges: “Because [Petitioner] was not provided with effective assistance of counsel, [his] conviction was obtained in violation of the Sixth Amendment to the United States Constitution” (ECF No. 1 at 23). This claim was not presented to the West Virginia Supreme Court in Petitioner's direct appeal (see ECF Nos. 58-60, 58-76), but Petitioner did assert this claim in his Petition for Writ of Habeas Corpus that he filed in Cabell County Circuit Court on March 13, 2013 (ECF No. 58-21). Petitioner's state habeas case currently remains pending (see ECF No. 72).

         Respondent contends, “Petitioner's State habeas proceedings are ongoing. Once Petitioner has properly adjudicated his claims of ineffective assistance of counsel in his State habeas proceedings, [his Section 2254 Petition] will be ripe for consideration by this Court” (ECF No. 58 at 2). Petitioner concedes that he has not exhausted his ineffective assistance of counsel claim in state court, but argues that there has been an inordinate delay in his state court proceedings such that the state corrective process has been rendered ineffective and exhaustion should be excused (ECF No. 70 at 16).

         II. Magistrate Judge's Proposed Findings and Recommendations

         On May 23, 2017, Magistrate Judge Aboulhosn submitted the present PF&R (ECF No. 66). After reviewing the procedural history of Petitioner's direct appeal, state habeas case, and Section 2254 Petition, Magistrate Judge Aboulhosn analyzed whether Petitioner's failure to exhaust should be excused (ECF No. 66 at 25-37). In doing so, Magistrate Judge Aboulhosn reviewed the history of Petitioner's state cases in light of four factors: length of delay, reason for delay, assertion of rights, and prejudice (ECF No. 66 at 25-37). He concluded that “the alleged delay in Petitioner's State habeas proceedings are not the magnitude of delay that has been determined to be inordinate or a violation of due process;” that “a significant portion of any delay in Petitioner's State habeas proceedings is attributable to Petitioner's continued dissatisfaction with appointed counsel;” that Petitioner diligently asserted his rights; and that there is no indication that Petitioner has suffered prejudice as a result of the alleged delay in state court proceedings (ECF No. 66 at 25-37).

         Pursuant to those proposed findings, Magistrate Judge Aboulhosn concluded that the balancing factors weighed against Petitioner and that exhaustion should not be excused (ECF No. 66 at 37). As a result, he recommends that the Court grant Respondent's Second Motion to Dismiss for Failure to Exhaust and dismiss Petitioner's Petition without prejudice (ECF No. 66 at 40).

         III. Petitioner's Objections to PF&R

         On June 30, 2017, Petitioner filed the following five objections to the present PF&R:

A. The factual statement (i.e., “Procedural History”), which is used to justify a recommendation of dismissal, is inaccurate and misleading.
B. Though the PF&R correctly identifies the appropriate standards for reviewing a motion to dismiss, . . . it fails to abide by those standards.
C. The PF&R applies an inappropriate standard to determine whether the Petitioner's failure to exhaust state remedies should be excused due to inordinate delay in the state corrective process.
D. In applying the speedy trial analysis set forth in Barker v. Wingo . . . the PF&R continues to overlook undisputed and manifestly relevant facts, to rely upon factual misstatements and false assumptions, and to misinterpret and/or misapply case law. Consequently, the PF&R reaches an incorrect finding with regard to each of the four Barker factors.
E. The PF&R inappropriately excuses the State from its obligation to provide timely ...

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