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.
before this Court is Petitioner's Motion for Partial
Summary Judgment on his federal habeas claim that a lengthy
delay in his state appeal violated the Due Process Clause,
and Respondent's Motion for Summary Judgment as to all of
Petitioner's federal habeas claims. Pl.'s Mot.
for Summ. J., ECF No. 84; Pl.'s Mem. of Law in
Supp. of Mot. for Summ. J., ECF No. 85, at 1;
Def.'s Mot. for Summ. J., ECF No. 89. Pursuant
to an Order issued on December 19, 2016, this action was
referred to United States Magistrate Judge Omar J. Aboulhosn
for proposed findings of fact and recommendation for
disposition. ECF No. 54. The Magistrate Judge submitted
proposed findings and recommended that this Court deny
Petitioner's Motion for Partial Summary Judgment and
grant Respondent's Motion for Summary Judgment.
Proposed Findings and Recommendation, ECF Nos. 98,
112. Petitioner now objects to both proposed findings and
recommendations. Objections to Proposed Findings and
Recommendations, ECF Nos. 102, 119 [hereinafter
Objections]. For the reasons below, the Court adopts
both proposed findings and recommendations of Magistrate
Judge Aboulhosn, denies Petitioner's Motion for Partial
Summary Judgment, grants Respondent's Motion for Summary
Judgment, and dismisses this matter from the Court's
factual and procedural background of this case is lengthy and
complex. Thus, while the Court will not detail the complete
factual development that led to the motions currently before
it in this order,  the Court will provide a brief summary of
the procedural history.
Criminal Case and Appeal
January 7, 1993, the Grand Jury of Cabell County, West
Virginia, returned an indictment against Petitioner, charging
him with one count of second-degree sexual assault, one count
of burglary, two counts of first-degree sexual assault, one
count of first-degree sexual abuse, and one count of
malicious wounding. See ECF No. 88-1, at 2-3.
Following a two-day jury trial which began on August 18,
1993, Petitioner was convicted of second-degree sexual
assault. See ECF No. 88-5, at 2-3. As a result of
his criminal background, the Circuit Court sentenced
Petitioner to life in prison, with parole eligibility after
serving 15 years. See ECF No. 88-9, at 2- 3.
being sentenced, Petitioner began the process of appeal with
numerous court-appointed attorneys:
On March 9, 1994, Petitioner filed a Notice of Appeal and the
Circuit Court appointed Nancy Sheets as appellate counsel.
See ECF No. 58-78, at 5. However, on June 15, 1994,
Petitioner filed a pro se Motion to Dismiss
Court-Appointed Counsel and a Motion to Extend the Appeal
Period. See id.
On December 9, 1994, the Circuit Court relieved Ms. Sheets as
counsel, and appointed the Public Defender's Office of
Cabell County as counsel. See id.; ECF No. 70, at
30-31. Assistant Public Defender Neil Bouchillon was then
assigned to Petitioner's case, but on June 27, 1995, Mr.
Bouchillon filed a Motion to Withdraw as Counsel.
See ECF No. 58-78, at 6. The Circuit Court conducted
a hearing on the Motion to Withdraw on July 21, 1995, and
during the hearing Petitioner and Mr. Bouchillon advised the
court that they had resolved their differences and Mr.
Bouchillon agreed to continue as counsel. See ECF
No. 65, at 7; ECF No. 84-1, at 3.
thirteen years later, on February 25, 2008, Petitioner filed
a Motion to Dismiss the Public Defender's Office.
See ECF No. 65, at 9, 51-52; ECF No. 58-78, at 6. On
February 26, 2008, the Circuit Court appointed Steven Bragg
as counsel. See ECF No. 58-78, at 6. Then, more than
four years later, on January 28, 2013, Mr. Bragg filed a
Motion to Substitute Counsel. ECF No. 58-22, at 2.
March 28, 2013, the Circuit Court granted Mr. Bragg's
Motion and appointed Nicolas Mayo as appellate counsel. ECF
No. 58-78, at 6. On September 19, 2013, Mr. Mayo filed a
proposed resentencing order and a Motion to Withdraw as
Counsel. See Id. The Circuit Court entered the
Resentencing Order on September 20, 2013. ECF No. 58-79, at
30-31. By Order entered on September 24, 2013, the Circuit
Court granted Mr. Mayo's Motion to Withdraw as Counsel
and appointed Jason Goad as counsel. See ECF No.
58-78, at 6.
April 2, 2014, Mr. Goad filed with the West Virginia Supreme
Court of Appeals (“WVSCA”) a Motion to Withdraw
as Counsel. ECF No. 58-45, at 2. By Order entered on April
17, 2014, the WVSCA granted Mr. Goad's Motion and
remanded the case to the Circuit Court for the sole purpose
of appointing new counsel. See ECF No. 58-46, at 2;
ECF No. 58-47, at 2. The WVSCA further stayed the appeal
pending the appointment of new counsel by the Circuit Court.
See ECF No. 58-46.
Order entered on May 29, 2014, the Circuit Court appointed
Ray Nolan as appellate counsel. See ECF No. 58-49,
at 2. However, by Amended Order of Appointment entered on
June 3, 2014, the Circuit Court appointed Steve Cook as
appellate counsel. See ECF No. 58-50, at 2. On
November 18, 2014, Mr. Cook filed Petitioner's Appellate
Brief. ECF No. 58-60, at 2.
letter received February 5, 2015, Petitioner provided the
WVSCA with a “Waiver of Counsel.” ECF No. 58-70,
at 2. On February 6, 2015, the State filed its Response
Brief. ECF No. 58-67. On February 13, 2015, Mr. Cook filed a
Motion to Withdraw as Counsel. ECF No. 58-72, at 2. By Order
entered on February 24, 2015, the WVSCA granted Mr.
Cook's Motion to Withdraw as Counsel and directed
Petitioner to file his Reply Brief by March 30, 2015. ECF No.
58-73, at 2.
March 30, 2015, Petitioner filed his pro se Reply
Brief. ECF No. 58-75. By Memorandum Decision filed on
November 20, 2015, the WVSCA affirmed Petitioner's
conviction and sentence. See ECF No. 58-76, at 15.
Federal Habeas Petition
filed the instant Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus By a Person in State Custody
on January 31, 2014. 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 and closing were prejudicial enough
to have denied [Petitioner] the right to a fair trial and,
thus, violated the due process provision 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 the court and
counsel, [his] 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
Id. at 10, 18, 20, 22-23.
by counsel, later filed his Motion for Partial Summary
Judgment and Memorandum in Support on January 15, 2018. ECF
Nos. 84, 85. In support, Petitioner only argues that he is
entitled to partial summary judgment on his first claim: that
a twenty-year delay in his state appeal violated the Due
Process Clause. ECF No. 85, at 1. On March 1, 2018,
Respondent filed his own Motion for Summary Judgment, and
argues that all of Petitioner's arguments for habeas
relief lack merit. See ECF No. 89, at 2. The
Magistrate Judge issued proposed findings and recommended
that this Court deny Petitioner's motion for partial
summary judgment and grant Respondent's motion for
summary judgment on July 20, 2018, and January 24, 2019,
respectively. See ECF Nos. 98, 112. Petitioner filed
objections to both recommendations on August 28, 2018, and
February 22, 2019, respectively. See Objections, ECF
Nos. 102, 119.
Standard of Review
Magistrate Judge's Findings
Court must “make a de novo determination of
those portions of the ... [Magistrate Judge's] proposed
findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C); see,
e.g., Berry v. Colvin, No. 14-9859, 2015 WL
1506128, at *1 (S.D. W.Va. Mar. 31, 2015).
Motion for Summary Judgment
obtain summary judgment, the moving party must show that no
genuine issue as to any material fact remains and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, a court will not “weigh the evidence and
determine the truth of the matter[.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
a court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Any inference,
however, “must fall within the range of reasonable
probability and not be so tenuous as to amount to speculation
or conjecture.” JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001)
(citation omitted). Therefore, summary judgment will not be
granted if a reasonable jury could return a verdict for the
non-moving party on the evidence presented. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Petitioner's Partial Motion for Summary Judgment
Court will first address Petitioner's objections to the
Magistrate Judge's findings and recommendation that this
Court should deny Petitioner's motion for partial summary
judgment on his claim that his appellate delay violated his
due process rights. Petitioner makes the following objections
to the Magistrate Judge's proposed findings of fact and
recommendation: (1) the Magistrate Judge mischaracterized
certain facts, which suggest that Petitioner is to blame for
the delay in his post-conviction relief proceedings; (2) the
Magistrate Judge incorrectly determined that, despite the
extreme delay in Petitioner's state appeal, this Court
must give deference to the WVSCA's opinion affirming
Petitioner's conviction; (3) the Magistrate Jude
incorrectly determined that the WVSCA's decision on the
issue of delay was not based on a materially incomplete
record; (4) the Magistrate Judge failed to determine whether
the WVSCA's decision on the delay issue was based on an
unreasonable determination of the facts presented in the
state court proceeding; (5) the Magistrate Judge incorrectly
applied the “contrary to … clearly established
federal law” provisions of § 2254(d)(1); and (6)
the Magistrate Judge incorrectly determined that Petitioner
cannot establish prejudice from the twenty-year delay in his
appeal. Objections, ECF No. 102, at 2. The Court
will address each objection in turn.
Characterization of Facts
Petitioner objects to the Magistrate Judge's
“mischaracterization of certain facts which suggest
that the Petitioner is to blame for the delay in his
post-conviction relief proceedings ….”
Objections, ECF No. 102, at 3. Because of
conclusions reached later in this opinion that result in a
deference to the WVSCA's findings, the facts allegedly
mischaracterized are only relevant for resolving the
objection discussed in section four of this opinion.
Therefore, the Court will unavoidably resolve this objection
in section four.
Deference to West Virginia Supreme Court-Delay Issue
Petitioner objects to the Magistrate Judge's
determination that this Court must give deference to the
WVSCA's opinion affirming Petitioner's conviction,
and argues that the Supreme Court's extreme delay in
hearing his appeal must result in no deference.
Objections, ECF No. 102, at 8. Because there is no
legal support for Petitioner's argument, his objection is
habeas relief is available to a state prisoner under 28
U.S.C. § 2254 only if the prisoner “is in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a); see also
Sargent v. Waters, 71 F.3d 158, 160 (4th Cir. 1995).
Section 2254(d) provides that when the issues raised in a
§ 2254 Petition were already raised and considered on
the merits in state court proceedings, federal habeas relief
is unavailable unless the state court's
(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;
(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).
deference must be given to a state court's decision if
the state court's decisions is “adjudicated on the
merits.” See Gordon v. Braxton, 780 F.3d 196,
202 (4th Cir. 2015).
Petitioner argues that, even assuming the WVSCA's
decision was “adjudicated on the merits, ” the
WVSCA is not entitled to any deference because the state
court was responsible for decades of delay, and in cases of
extreme delay a state court's decision is
“‘too late' for meaningful review
….” Objections, ECF No. 102, at 9. To
provide support for this position, Petitioner cites two
circuit opinions-Turner v. Bagley, 401 F.3d 718 (6th
Cir. 2005) and Ward v. Freeman, No. 94-CV-6424, 1995
WL 48002 (4th Cir. Feb. 8, 1995)-which held that a
petitioner's claims should be considered on the merits by
the district court. Id. This Court finds that
neither Turner nor Ward is applicable to
Magistrate Judge properly found, neither Turner nor
Ward directly held that a district court should not
give deference to a state court decision that
already decided and affirmed a petitioner's conviction.
ECF No. 98, at 36. Rather, both Turner and
Ward were cases limited to the issue of exhaustion,
and merely held that when there is inordinate delay,
attributable to the state, in hearing a petitioner's
claim, a district court should not dismiss a case for failure
to exhaust and should instead hear the case on the merits
when no state court decision exists to defer to. See
Turner, 401 F.3d at 720, 727-28 (stating that
“[t]he issue on appeal is whether the district court
properly dismissed [the petitioner's] habeas corpus
petition for lack of exhaustion, ” and “[t]he
error presented to this Court is that of the district court,
which should have considered the merits of [the
petitioner's] petition in light of the state
court's failure to do so.”) (emphasis added);
Ward, 1995 WL 48002, at *1 (stating that the
petitioner was appealing “the district court's
summary dismissal of his [section 2254] petition for failure
to exhaust state remedies, ” and that the case was only
currently on direct appeal in the state court).
Unlike Turner and Ward, exhaustion is no
longer at issue in this case, and Petitioner's direct
appeal was affirmed by the WVSCA before this Court had
previously dismissed the case for failure to exhaust and
before the case was presented to the Fourth Circuit on
appeal. State v. Plymail, No. 14-0016 (Nov. 20,
2015); ECF No. 58-76. Thus, crucially, unlike in
Turner or Ward, there is a state court
decision that exists for this Court to defer to.
Court notes that Turner can be interpreted to stand
for the proposition that deference should not be given to
state court decisions if the district court has excused the
exhaustion requirement only if one focuses on the following fact:
when the Sixth Circuit was presented with Turner,
the state court had finally affirmed the petitioner's
conviction on the merits, yet the Sixth Circuit did not defer
to the state court's decision and granted an
unconditional writ. ...