United States District Court, S.D. West Virginia, Huntington Division
CHARLES F. PLYMAIL, Petitioner,
PATRICK A. MIRANDY, Warden, St. Mary's Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
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.
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
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
(ECF No. 1).
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).
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).
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).
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).
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.
Exhaustion of Petitioner's First Five Section 2254 Claims
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.
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.
Petitioner's Unexhausted Claim of Ineffective Assistance
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).
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).
Magistrate Judge's Proposed Findings and Recommendations
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).
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).
Petitioner's Objections to PF&R
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 ...