Jenkins v. Plumley

Filing 51

MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING 40 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING 28 PETITIONER'S MOTION FOR LEAVE TO AMEND THE PETITION, DENYING 29 PETITIONER'S MOTION FOR STAY AND ABEYANCE, DENYING [3 0] PETITIONER'S MOTION TO STRIKE, OVERRULING 42 RESPONDENT'S OBJECTIONS, OVERRULING 43 PETITIONER'S OBJECTIONS, DENYING 20 RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART 1 § 2254 PET ITION. Accordingly, this civil action is hereby DISMISSED and STRICKEN from the active docket of this Court. Should the Petitioner choose to appeal, he is ADVISED that he must file a notice of appeal with the Clerk of the Court within 30 days after the date of entry of this order. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/23/2017. (copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 3/23/2017: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROSS JENKINS,
Petitioner,
v.

Civil Action No. 5:15CV159
(STAMP)

MARVIN PLUMLEY,
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DENYING PETITIONER’S MOTION FOR LEAVE TO AMEND THE PETITION,
DENYING PETITIONER’S MOTION FOR STAY AND ABEYANCE,
DENYING PETITIONER’S MOTION TO STRIKE,
OVERRULING RESPONDENT’S OBJECTIONS,
OVERRULING PETITIONER’S OBJECTIONS,
DENYING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT AND
GRANTING IN PART AND DENYING IN PART § 2254 PETITION
The petitioner, Ross Jenkins (“Jenkins”), filed this pro se1
petition under 28 U.S.C. § 2254 challenging the validity of his
West Virginia sentence.

This matter was referred to United States

Magistrate Judge James E. Seibert under Local Rule of Civil
Procedure 72.01.
summary judgment.

The respondent (“the state”) filed a motion for
Magistrate Judge Seibert entered a report

recommending that the state’s motion for summary judgment be denied
and that Jenkins’s petition be granted. The state and Jenkins each
filed timely objections. For the following reasons, the magistrate

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

judge’s report and recommendation is adopted and affirmed, the
parties’ objections are overruled, the state’s motion for summary
judgment is denied, and Jenkins’s petition is granted.
I.

Background

In 1995, Jenkins was convicted of one count of breaking and
entering in violation of West Virginia Code § 61-3-11(a) and two
counts

of

second-degree

sexual

assault

in

violation

of

West

Virginia Code § 61-8B-4. The state then filed an information under
West Virginia Code §§ 61-11-18 and 61-11-19 to designate Jenkins as
a recidivist based on his having been convicted of two prior
felonies, permitting the imposition of a life sentence.

A jury

determined that he was a recidivist under the statute.
At sentencing on February 16, 1996, the state requested that
Jenkins receive a life sentence for each of his three convictions
to run consecutively.

The court then sentenced Jenkins to a term

of one to fifteen years as to the burglary and ten to twenty-five
years as to each sexual assault to run consecutively.

The court

also separately sentenced Jenkins to a life sentence under the
recidivist statute.

The state then requested clarification from

the court regarding whether the single life sentence applied to all
three convictions as a unit, and the court stated that it was
required to do so by the recidivist statute. The state then sought
leave to withdraw the recidivist information, noting that on a
single life sentence, Jenkins would be eligible for parole after

2

fifteen years, while he would be eligible for parole only after
twenty-one years if each of his individual sentences were to run
concurrently.

The court granted the motion and sentenced Jenkins

to a term of one to fifteen years as to the burglary and ten to
twenty-five years as to each sexual assault to run consecutively,
a total sentence of twenty-one to sixty-five years.
On November 21, 2012, Jenkins filed a pro se motion with the
state court to correct his sentence, arguing that the sentencing
court

erred

in

granting

recidivist information.

the

state’s

motion

to

withdraw

the

In effect, Jenkins sought to have the

court impose a single life sentence as to all counts, making him
immediately eligible for parole.

The court appointed counsel to

represent Jenkins in those proceedings.

The court concluded that

the recidivist statute must be applied to enhance one of the counts
of conviction and that the other two counts would remain as
separate sentences. Although Jenkins was represented by counsel at
the hearing, he made pro se arguments to the court and requested
that the court impose a single life sentence as to all counts as
the sentencing court originally intended before dismissing the
recidivist

information.

The

court

denied

this

request

and

attempted to advise Jenkins of the lengths of each sentencing
option and asked him “do you want me to correct the sentences and
sentence you to twenty-six to forty, or do you want me to keep the
twenty-one to sixty-five?”

ECF No. 1-4 at 13-14.

3

Jenkins then

said “I’ll take the twenty-six to forty.”

Id.

The court then

resentenced Jenkins to twenty-six years to life.
Jenkins

appealed

his

resentencing,

arguing

that

his

new

sentence violated the Double Jeopardy Clause of the Fifth Amendment
as made applicable to the States via the Due Process Clause of the
Fourteenth Amendment.

The West Virginia Supreme Court of Appeals

affirmed the new sentence, concluding that Jenkins’s original
sentence violated the recidivist statute and that his new sentence
complied with the statute. Jenkins also filed a habeas petition in
West Virginia court alleging ineffective assistance of counsel at
his resentencing hearing and violations of double jeopardy.

The

petition was denied, Jenkins appealed, and the West Virginia
Supreme Court of Appeals affirmed.
Jenkins then filed this petition under § 2254 alleging that
his

new

sentence

violates

double

jeopardy

and

that

he

had

ineffective assistance of counsel at resentencing. The state filed
a motion for summary judgment.

Jenkins also filed a motion for

leave to amend his petition, which the state opposes.

Magistrate

Judge Seibert then entered a report recommending that the state’s
motion for summary judgment be denied and that Jenkins’s petition
be granted as to the ineffective assistance of counsel claim.
Magistrate Judge Seibert did not make a recommendation as to the
double jeopardy issue.

The state and Jenkins then filed timely

objections to the report and recommendation.

4

II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.

Because the parties each filed

objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

objections were not filed, those findings and recommendations will
be upheld unless they are “clearly erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A fact is

“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).

A dispute of material

fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.”

Id.

If the

nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against that party.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

In reviewing the supported

underlying facts, all inferences must be viewed in the light most

5

favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.

See

“The burden then shifts to the

nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”

Temkin v. Frederick County Comm’rs, 945

F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
Inc., 477 U.S. 242, 256 (1986).

Anderson v. Liberty Lobby,

Moreover, “[t]he nonmoving party

cannot create a genuine issue of material fact through mere
speculation
Othentec

or

Ltd.

the
v.

building

Phelan,

526

of

one

F.3d

(internal quotation marks omitted).

inference
135,

140

upon
(4th

another.”
Cir.

2008)

The nonmoving party must

produce “more than a ‘scintilla’” of evidence “upon which a jury
could properly proceed to find a verdict for the party producing
it.” Id. (internal quotation marks omitted) (quoting Anderson, 477
U.S. at 251).

6

III.
A.

Discussion

Ineffective Assistance of Counsel
Magistrate Judge Seibert concluded that Jenkins’s counsel at

resentencing provided constitutionally deficient representation.
The state does not object to the magistrate judge’s conclusion that
Jenkins

received

constitutionally

deficient

representation.

Rather, the state argues that Jenkins was not prejudiced.

Because

neither party objected to the magistrate judge’s finding that
Jenkins’s

counsel

provided

constitutionally

deficient

representation, this Court reviews that conclusion for clear error.
The magistrate judge’s conclusion that Jenkins was prejudiced will
be reviewed de novo.
“[A] movant seeking collateral relief from his conviction or
sentence through an ineffective assistance claim must show (1) that
his

counsel’s

performance

was

deficient[,]

deficiency prejudiced his defense.”

and

(2)

that

the

United States v. Basham, 789

F.3d 358, 371 (4th Cir. 2015) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).

Counsel’s performance was deficient if

“counsel’s representation fell below an objective standard of
reasonableness

.

.

.

under

Strickland, 466 U.S. at 688.

prevailing

professional

norms.”

There is a “strong presumption that

counsel’s representation was within the wide range of reasonable
professional assistance.”
(2011)

(internal

Harrington v. Richter, 562 U.S. 86, 104

quotation

marks

7

omitted).

“The

Strickland

standard is difficult to satisfy, in that the ‘Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.’”

Basham, 789 F.3d at 371 (quoting

Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).
First, the magistrate judge concluded that Jenkins’s counsel
provided deficient representation because he failed to adequately
advise Jenkins as to the consequences of resentencing.

Jenkins’s

petition in the state court was based on his mistaken belief that
if it were granted he would receive a single life sentence as to
all counts.

However, West Virginia law clearly provided that he

would receive separate sentences for each count and that one of
them would be enhanced to a life sentence.
399 S.E.2d 882, 887 (W. Va. 1990).

See State v. Housden,

Jenkins’s counsel failed to

appropriately counsel him on this issue and failed to correct his
mistaken understanding of what his new sentence would be.

The

magistrate judge concluded that Jenkins’s counsel should also have
explained to the court at the resentencing hearing that Jenkins did
not understand the consequences of his petition.

Further, the

magistrate judge concluded that the sentencing court incorrectly
advised Jenkins of his resentencing options because the court did
not clearly state that Jenkins would receive a longer sentence than
he originally received.

Magistrate Judge Seibert concluded that

Jenkins’s counsel should have objected to the court’s explanation
or at least sought clarification.

8

The magistrate judge correctly

applied the first prong of the Strickland standard, and this Court
finds no clear error.
Second, Jenkins was prejudiced by his counsel’s deficient
performance.

To show prejudice, “[t]he movant must demonstrate ‘a

reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.

A

reasonable probability is a probability sufficient to undermine
confidence in the outcome.’”
694).

Id. (quoting Strickland, 466 U.S. at

Had Jenkins’s counsel advised him that his total sentence

could increase if his motion to correct his sentence were granted,
he could have explored advocating for other sentencing options
regarding

which

sentence

should

be

enhanced

and

sentences should run concurrently or consecutively.

whether

his

Regardless of

whether Jenkins’s ultimate corrected sentence must be higher than
his original sentence, there is a reasonable probability that had
he received competent representation his corrected sentence would
have been different than the sentence he is now challenging.
The state argues that Jenkins was not prejudiced because he
could not have retained his original, illegal sentence.

However,

as discussed above, Jenkins was prejudiced because he could have
received a different sentence that was not necessarily lower than
his original, illegal sentence. The state argues that a sentencing
court has “a duty to correct [an] initial illegal sentence.” State
ex rel. Daye v. McBride, 658 S.E.2d 547, 552 (W. Va. 2007).

9

However, regardless of whether the state court could have permitted
Jenkins to withdraw his motion to correct his sentence, Jenkins
could have received a different sentencing outcome had competent
counsel been provided. Accordingly, this Court finds that there is
a reasonable probability that with proper representation Jenkins
would have received a different sentence.

Thus, Jenkins was

prejudiced by his deficient representation and his Sixth Amendment
right to counsel was violated.
B.

Double Jeopardy
Magistrate Judge Seibert did not rule on Jenkins’s double

jeopardy claim.

Rather, he concluded that these claims are

irrelevant because they are based on Jenkins’s misunderstanding of
how the recidivist statute applies.

Jenkins objects to the

magistrate judge’s decision not to rule on the double jeopardy
issue.

The state does not object to the magistrate judge’s

conclusions,

but

requests

an

opportunity

to

file

additional

briefing on this issue if this Court wishes to further consider it.
This Court does not believe additional briefing is necessary for a
determination of this matter.

Further, because the magistrate

judge did not determine this issue in the first instance, this
Court will make a de novo ruling.
Jenkins fails to state a claim for a violation of double
jeopardy.

The Fifth Amendment provides: “nor shall any person be

subject for the same offense to be twice put in jeopardy of life or

10

limb.”

U.S.

Const.

amend.

V.

This

Double

Jeopardy

Clause

“protects against multiple punishments for the same offense.”
United States v. DiFrancesco, 449 U.S. 117, 129 (1980).

Double

jeopardy may be implicated where a sentencing court “increas[es]
. . . the sentence relating to an unvacated conviction” and the
“defendant acquired a legitimate expectation of finality in his
[original] sentence.” United States v. Olivares, 292 F.3d 196, 200
(4th Cir. 2002); see also Ward v. Williams, 240 F.3d 1238, 1242
(10th Cir. 2001); United States v. Fogel, 829 F.2d 77, 87 (D.C.
Cir. 1987); United States v. Crawford, 769 F.2d 253, 257-58 (5th
Cir. 1985).

However, the correction of an illegal sentence that

results in an increased sentence does not violate the Double
Jeopardy Clause as “[i]llegal sentences do not confer legitimate
expectations of finality because they are subject to change” and a
petitioner “cannot gain a legitimate expectation of finality in a
sentence that he challenged.”

Ward, 240 F.3d at 1243; see also

United States v. Bentley, 850 F.2d 327, 329 (7th Cir. 1988); United
States v. Guevremont, 829 F.2d 423 427-28 (3d Cir. 1987); Crawford,
769 F.2d at 257-58; Safrit v. Garrison, 623 F.2d 330, 332 (4th Cir.
1980) (in dicta); United States v. Stevens, 548 F.2d 1360, 1362-63
(9th Cir. 1977); United States v. Scott, 502 F.2d 1102, 1103 (8th
Cir. 1974); Thompson v. United States, 495 F.2d 1304, 1305-06 (1st
Cir. 1974).

11

Jenkins’s original sentence was illegal under West Virginia
law.

In granting his habeas petition, the state court corrected

his illegal sentence, resulting in an increased sentence.

Because

Jenkins’s

have

original

sentence

was

illegal,

he

did

not

a

legitimate expectation of finality in it, regardless of the length
of

time

he

had

served

toward

his

illegal

sentence.2

Thus,

Jenkins’s double jeopardy claims fail.
C.

Motion for Leave to Amend and Motion for Stay and Abeyance
As to Jenkins’s motion to amend his petition and for a stay

and abeyance, Magistrate Judge Seibert recommends denying those
motions.

Jenkins seeks to add a claim that his corrected sentence

2

The magistrate judge suggests that due to the length of time
it took to correct Jenkins’s sentence, Jenkins could have developed
an expectation of finality in his original sentence, resulting in
double jeopardy.
However, this concept as applied to the
correction of illegal sentences has been explored by courts only in
the context of substantive due process and whether correcting a
sentence after an expectation of finality has formed violated
principles of fundamental fairness. See Hawkins v. Freeman, 195
F.3d 732, 747-50 (4th Cir. 1999) (questioning whether crystalized
expectations of finality may serve as a viable basis for finding a
substantive due process violation where parole was revoked because
it was erroneously and illegally granted); United States v.
Lundien, 769 F.2d 981, 986-87 (4th Cir. 1985) (in dicta); Breest v.
Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978) (in dicta).
That issue is not before this Court.
Jenkins’s proposed
amendment alleges that the corrected sentence violates due process
because of the sentencing court’s alleged vindictiveness in
increasing his sentence. He does not allege that the length of
time before the correction created an expectation of finality in
his original sentence. Further, because Jenkins petitioned the
state court to correct his sentence and acknowledged that his
original sentence was illegal, it is unclear that he could have
developed any expectation of finality in his original sentence.
12

violates due process because the court at resentencing vindictively
increased his sentence to punish him for seeking a corrected
sentence.

He also asks for a stay and abeyance to allow him to

exhaust that claim in state court.

The magistrate judge concluded

that this claim is clearly frivolous and that the amendment would,
therefore, be futile.
these rulings.

Neither the state nor Jenkins objects to

Thus, this Court reviews those conclusions for

clear error.
The United States Court of Appeals for the Fourth Circuit has
suggested that due process may be violated where a sentence that
has

been

commenced

is

later

increased

“because

of

the

vindictiveness or other plainly improper motive of the trial
court.”

United States v. Lundien, 769 F.2d 981, 987 (4th Cir.

1985) (citing North Carolina v. Pearce, 395 U.S. 711, 723-25
(1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794,
802 (1989)).

The magistrate judge concluded that there is no

indication of vindictiveness or improper motive because the court
at resentencing was simply correcting Jenkins’s original, illegal
sentence by granting Jenkins’s own habeas petition.

The court

imposed Jenkins’s new sentence as mandated by West Virginia law.
Accordingly, this Court finds no clear error.
IV.

Conclusion

For the above reasons, the magistrate judge’s report and
recommendation

(ECF

No.

40)

is

13

ADOPTED

AND

AFFIRMED.

The

respondent’s motion for summary judgment (ECF No. 20) is DENIED.
Jenkins’s motion for leave to amend his petition (ECF No. 28) is
DENIED, his motion for a stay and abeyance (ECF No. 29) is DENIED
AS MOOT, and his motion to strike (ECF No. 30) is DENIED AS MOOT.
The respondent’s objections to the report and recommendation (ECF
No. 42) are OVERRULED, and Jenkins’s objections to the report and
recommendation (ECF No. 43) are OVERRULED.

Further, Jenkins’s

§ 2254 petition (ECF No. 1) is GRANTED IN PART and DENIED IN PART.
Accordingly, this civil action is hereby DISMISSED and STRICKEN
from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 30
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.

14

DATED:

March 23, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

15