Charles Plymail v. Patrick Mirandy

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cv-06201 Copies to all parties and the district court/agency. [999974644]. Mailed to: Charles Plymail. [16-6547]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6547

CHARLES F. PLYMAIL,
Petitioner - Appellant,
v.
PATRICK A. MIRANDY, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:14-cv-06201)

Submitted:

November 18, 2016

Decided:

November 23, 2016

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Charles F. Plymail, Appellant Pro Se. Shannon Frederick Kiser,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Charles F. Plymail seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing

without

prejudice

his

28

U.S.C.

§ 2254

petition for failing to exhaust his state remedies.

(2012)

The order

is not appealable unless a circuit justice or judge issues a
certificate of appealability.
A

certificate

of

28 U.S.C. § 2253(c)(1)(A) (2012).

appealability

will

not

issue

absent

“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).

When the district court denies

relief on procedural grounds, the prisoner must demonstrate both
that the dispositive procedural ruling is debatable and that the
petition

states

a

debatable

constitutional right.

claim

of

the

denial

of

a

Slack v. McDaniel, 529 U.S. 473, 484-85

(2000).
Our review of the present record, which is significantly
constrained by the absence of state court documents, convinces
us that the district court’s procedural ruling is debatable.
Before presenting claims in federal court, a § 2254 petitioner
must

exhaust

all

available

state

court

remedies.

28

U.S.C.

§ 2254(b)(1); Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir.
2015); Jones v. Sussex I State Prison, 591 F.3d 707, 713 (4th
Cir.

2010).

exhaustion

However,
requirement

a
if

petitioner
“there
2

is

may
an

be

excused

absence

of

from

the

available

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[s]tate corrective process[] or circumstances exist that render
such

process

[petitioner].”

ineffective

to

protect

the

28 U.S.C. § 2254(b)(1)(B).

rights

of

the

State remedies may

be rendered ineffective by inordinate delay or inaction in state
proceedings.

See Farmer v. Circuit Court of Md. for Balt. Cty.,

31 F.3d 219, 223 (4th Cir. 1994) (“There is . . . authority for
treating

sufficiently

diligent,

though

unavailing,

efforts

to

exhaust as, effectively, exhaustion, and for excusing efforts
sufficiently

shown

to

be

futile

in

the

face

of

state

dilatoriness or recalcitrance.”).
Here, the West Virginia Supreme Court of Appeals took over
20

years

to

conviction.

decide

Plymail’s

direct

appeal

of

Stickman,

difficult

criminal

Our sister circuits have found much shorter delays

sufficient to excuse the exhaustion requirement.
v.

his

to

357

F.3d

envision

338,
any

342

amount

(3d
of

Cir.

See, e.g., Lee

2004)

progress

(“[I]t

is

justifying

an

eight-year delay in reaching the merits of a petition.”); Coe v.
Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (holding, in the
context

of

four-year

delay,

that

“a

prisoner

need

not

fully

exhaust his state remedies if the root of his complaint is his
inability to do so.”).
The magistrate judge and the district court relied on the
West Virginia Supreme Court of Appeals’ finding that much of the
delay was caused by Plymail’s difficult relationship with his
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many appointed counsel.

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However, the district court and the

magistrate judge also noted that the State failed to provide any
records

from

the

state

court

proceedings.

The

few

records

available in the present record indicate that not all of the
delay can be attributed to Plymail; for example, he successfully
petitioned at one juncture for a writ of mandamus ordering a
resentencing to allow him to perfect his appeal.
alleged

that

condition

he

that

suffered

rendered

from

him

a

Plymail also

life-threatening

unable

to

ensure

the

medical
timely

prosecution of his appeal.
The magistrate judge and district court also noted that
Plymail’s state habeas petition remains pending in state court.
The state petition had been pending for a year when Plymail
filed his § 2254 petition, and has been pending for a total of
more than three years.

As the magistrate judge and the district

court correctly recognized, it is not surprising a state habeas
proceeding would not be adjudicated while a direct appeal was
pending; however, the state court’s inaction is troubling given
that one of Plymail’s claims concerned the inordinate delay in
adjudicating
record

his

before

direct
us,

we

appeal.

Accordingly,

conclude

that

the

based
district

on

the

court

prematurely dismissed Plymail’s petition for failure to exhaust

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his state remedies. *

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See Rule 4, R. Governing § 2254 Proceedings

(providing for sua sponte dismissal “[i]f it plainly appears
from the petition and any attached exhibits” that petitioner is
not entitled to relief).
By this disposition, we indicate no view as to the ultimate
success

of

Plymail’s

petition.

We

simply

conclude

that

the

current state of the record is insufficient to establish as a
matter of law that Plymail’s petition should be dismissed for
failure to exhaust.
Accordingly,

we

grant

a

certificate

of

appealability,

vacate the district court’s judgment, and remand the case to the
district court for further proceedings.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED

*

We likewise conclude that, on the present record,
“reasonable jurists could debate whether” the 20-year delay in
adjudicating Plymail’s direct appeal constituted a due process
violation.
Slack, 529 U.S. at 484 (internal quotation marks
omitted); see United States v. Johnson, 732 F.2d 379, 381 (4th
Cir. 1984) (“[U]ndue delay in processing an appeal may rise to
the level of a due process violation.”).

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