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Plymail v. Mirandy

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

March 19, 2019

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.

         Pending 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 docket.

         I. Background

         The 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, [1] the Court will provide a brief summary of the procedural history.

         A. Criminal Case and Appeal

         On 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.

         After 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.

         Almost 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.

         On 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.

         On 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.

         By 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.

         By 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.

         On 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.

         B. Federal Habeas Petition

         Petitioner 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 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 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 Constitution.

Id. at 10, 18, 20, 22-23.

         Petitioner, 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.

         II. Standard of Review

         A. Magistrate Judge's Findings

         This 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).

         B. Motion for Summary Judgment

         To 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).

         III. Discussion

         A. Petitioner's Partial Motion for Summary Judgment

         The 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.

         1. Characterization of Facts

         First, 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.

         2. Deference to West Virginia Supreme Court-Delay Issue

         Second, 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 denied.

         Federal 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 decision:

(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; or
(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).

         Thus, 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).

         Here, 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 this case.

         As the 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.

         The 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[2] 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. ...


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