Plymail v. Mirandy

Filing 108

ORDER granting Petitioner's 107 MOTION for Entry of State Court File Pursuant to 28 U.S.C. § 2254(f); directing the Clerk of the Supreme Court of Appeals of West Virginia to provide the Clerk of this Court a complete copy of the Appendix Record concerning State v. Plymail for filing with this Court. Signed by Magistrate Judge Omar J. Aboulhosn on 12/3/2018. (cc: counsel of record; Clerk of the Supreme Court of Appeals of West Virginia) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHARLES F. PLYMAIL,

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Petitioner,
v.
PATRICK A. MIRANDY, Warden,
Respondent.

Civil Action Nos. 3:14-06201

ORDER
Pending before the Court is Petitioner’s “Motion for Entry of State Court File Pursuant to
28 U.S.C. § 2254(f)” (Document No. 107), filed on November 15, 2018, by counsel, Troy N.
Giatras. Specifically, Petitioner requests the Court require the State of West Virginia to provide
the Appendix Record filed in Petitioner’s State court appeal in its entirety to this Court for entry
into the record. (Id.) In support, Petitioner explains that the Appendix Record is voluminous in
nature and Petitioner is indigent. (Id.) Petitioner further states that the Appendix Record is
currently in the custody of the Supreme Court of Appeal of West Virginia. (Id.) Respondent has
not filed a response to Petitioner’s above Motion.
Section 2254(f) provides as follows:
If the applicant challenges the sufficiency of the evidence adduced in such State
court proceeding to support the State court’s determination of a factual issue made
therein, the applicant, if able, shall produce that part of the record pertinent to a
determination of the sufficiency of the evidence to support such determination. If
the applicant, because of indigency or other reason is unable to produce such part
of the record, then the State shall produce such part of the record and the Federal
court shall direct the State to do so by order directed to an appropriate State
official.
28 U.S.C. § 2254(f). In the above habeas proceedings, Petitioner is challenging the sufficiency of

the evidence adduced in the State court proceeding supporting the State court’s determination of
factual issues. Additionally, Petitioner is clearly unable to produce a copy of the Appendix
Record due to his indigency. Based upon the foregoing, it is hereby ORDERED that Petitioner’s
above Motion (Document No. 107) is GRANTED. The Clerk of the Supreme Court of Appeals
of West Virginia is ORDERED to provide the Clerk of this Court a complete copy of the
Appendix Record concerning State v. Plymail, No. 14-0016 (Nov. 20, 2015) 1 for filing with this
Court.
The Clerk is directed to send a copy of this Order to counsel of record and to Edythe Nash
Gaiser, Clerk of the Supreme Court of Appeals of West Virginia, State Capitol Room E-317,
1900 Kanawha Blvd. East, Charleston, WV 25305.
ENTER: December 3, 2018.

The underlying criminal action was State v. Plymail, Criminal Action No. 93-F-50 (Cir. Ct.
Cabell Co. Aug. 18, 2013).
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