Petition for Writ of Certiorari — Alan Lane Hicks, Petitioner v. Jonathan Frame, Superintendent, Mount Olive Correctional Complex
Supreme Court briefNov 17, 2025
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No. ______
In the
Supreme Court of the United States
________________________
ALAN LANE HICKS,
v.
JONATHAN FRAME,
Petitioner,
Respondent.
________________________
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
________________________
PETITION FOR WRIT OF CERTIORARI
________________________
STEVEN J. ALAGNA
Counsel of Record
WASHINGTON UNIVERSITY
SCHOOL OF LAW
APPELLATE CLINIC
One Brookings Drive
MSC 1120-250-102
St. Louis, MO 63130
(314) 935-7238
salagna@wustl.edu
QUESTION PRESENTED
The Antiterrorism and Effective Death Penalty
Act (AEDPA) requires state prisoners to exhaust all
available state remedies prior to filing a federal habeas petition, unless “circumstances exist that render
such [state-court] process ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii).
Below, Petitioner Alan Lane Hicks argued that a 27year delay, during which the state court assigned his
case to a conflicted judge for 15 years and lost his case
file, amounted to circumstances that rendered the
state’s process ineffective. The Fourth Circuit recognized that Hicks’s “journey through West Virginia’s
state court system” was “Kafkaesque,” and “no doubt
offend[ed] basic notions of how a state should treat its
prisoners,” and the state was therefore entitled to no
comity. App. 3a, 20a, 15a n.7. But the Fourth Circuit
held that a one-sentence order from the state court dismissing Hicks’s state petition—issued a week after
oral argument in the Fourth Circuit—precluded excusing non-exhaustion under § 2254(b)(1)(B)(ii).
This Court has never directly interpreted
§ 2254(b)(1)(B)(ii), and circuits are irreconcilably split
on whether such eleventh-hour, state-court movement
is dispositive when analyzing whether inordinate delay warrants excusing non-exhaustion under
§ 2254(b)(1)(B)(ii).
The question presented is:
Whether 28 U.S.C. § 2254(b)(1)(B)(ii)’s exception
to the exhaustion requirement for “circumstances”
that render state proceedings “ineffective” can apply
when a state court reanimates inordinately delayed
proceedings after a petitioner files in federal court.
ii
RELATED PROCEEDINGS
Putnam County Circuit Court:
State v. Hicks, Nos. 86-F-59 and 88-F-2 (judgments of guilt and sentencing entered on Oct.
25, 1988; order denying petitioner’s postconviction Rule 35 motion challenging sentence
entered Jan. 18, 2019)
Hicks v. Trent, No. 97-C-369 (judgment dismissing
petitioner’s state postconviction relief claim
entered Apr. 22, 2025)
Supreme Court of West Virginia:
State v. Hicks, No. 89-1404 (Jan. 10, 1990) (refusing direct appeal from conviction)
State v. Hicks, No. 19-0123 (Jan. 13, 2020) (affirming dismissal of Rule 35 motion)
United States District Court for the Southern District
of West Virginia:
Hicks v. Ames, No. 3:21-cv-00618 (Mar. 30, 2023)
(dismissing petitioner’s federal habeas petition for failure to exhaust)
United States Court of Appeals for the Fourth Circuit:
Hicks v. Frame, No. 23-6447 (July 23, 2025) (affirming dismissal of petitioner’s federal habeas petition) (decision on appeal)
Supreme Court of the United States:
Hicks v. West Virginia, No. 20-5992 (Nov. 16,
2020) (denying certiorari regarding the
SCAWV’s Jan. 13, 2020, decision dismissing
Rule 35 motion)
iii
TABLE OF CONTENTS
QUESTION PRESENTED ......................................... i
RELATED PROCEEDINGS...................................... ii
TABLE OF AUTHORITIES ...................................... v
PETITION FOR WRIT OF CERTIORARI ............... 1
OPINIONS BELOW .................................................. 1
JURISDICTION ......................................................... 1
STATUTORY PROVISION INVOLVED .................. 1
STATEMENT ............................................................. 2
Legal background. ......................................... 2
Factual and procedural background. ........... 4
REASONS FOR GRANTING THE PETITION........ 7
I. The courts of appeals are split over whether
last-minute, state-court movement forecloses
excusing
non-exhaustion
under
§ 2254(b)(1)(B)(ii). ............................................... 8
In four circuits, § 2254(b)(1)(B)(ii) may
excuse non-exhaustion even when
state-court
movement
resurrects
inordinately delayed proceedings. ................ 9
In three circuits, § 2254(b)(1)(B)(ii)
cannot excuse non-exhaustion when
state-court
movement
resurrects
inordinately delayed proceedings. .............. 16
Four other circuits have not addressed
last-minute, state-court movement, but
apply distinct legal analyses under
§ 2254(b)(1)(B)(ii), indicating an even
deeper split................................................... 19
iv
II. The question presented is recurring and
critically important. .......................................... 24
III. The Fourth Circuit wrongly allowed lastminute, state-court movement to supplant the
totality-of-the-circumstances, comity-focused
inquiry § 2254(b)(1)(B)(ii) requires. ................. 26
The Fourth Circuit’s decision is at odds
with the statute’s plain text. ...................... 27
The Fourth Circuit’s decision is
expressly
inconsistent
with
the
common-law tradition codified by the
statute. ......................................................... 29
IV. This case is an excellent vehicle to resolve the
question. ............................................................ 30
CONCLUSION ......................................................... 32
APPENDIX A: Opinion, 4th Cir., No. 23-6447
(July 23, 2025) ............................ 1a
APPENDIX B:
Judgment, 4th Cir., No. 23-6447
(July 23, 2025) .......................... 21a
APPENDIX C:
Opinion and Order Granting Motion to Dismiss, S.D. W.Va., No.
3:21-cv-00618 (Mar. 30, 2023) . 22a
APPENDIX D:
Judgment, S.D. W.Va., No. 3:21-cv00618 (Mar. 30, 2023) .............. 61a
APPENDIX E:
Order Denying Petition for
Rehearing En Banc, 4th Cir.,
No. 23-6447 (Aug. 19, 2025) ..... 62a
v
TABLE OF AUTHORITIES
Cases:
Page
Barker v. Wingo,
407 U.S. 514 (1972) ................................................ 21
Body v. Watkins,
51 F. App’x 807 (10th Cir. 2002)............................ 18
Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) .............................. 23
Bowe v. United States,
2024 WL 4038107 (11th Cir. June, 27, 2024) ....... 24
Bowe v. United States,
145 S. Ct. 1122 (Jan. 17, 2025) .............................. 24
Branco v. Massachusetts,
2021 WL 8692680 (1st Cir. Nov. 22, 2021) ........... 17
Breazeale v. Bradley,
582 F.2d 5 (5th Cir. 1978) ...................................... 20
Brooks v. Jones,
875 F.2d 30 (2d Cir. 1989) ..................................... 21
Brown v. Warden, London Corr. Inst.,
2025 WL 2531463 (S.D. Ohio Sept. 3, 2025) ......... 25
Brown v. Warden, London Corr. Inst.,
2025 WL 2734242 (S.D. Ohio Sept. 25, 2025) ....... 25
Burkett v. Cunningham,
826 F.2d 1208 (3d Cir. 1987) ................................. 14
Calderon v. Thompson,
523 U.S. 538 (1998) ................................................ 26
Carter v. Buesgen,
10 F.4th 715 (7th Cir. 2021) .................................. 11
Codispoti v. Howard,
589 F.2d 135 (3d Cir. 1978) ................................... 14
Coe v. Thurman,
922 F.2d 528 (9th Cir. 1990) .................................. 21
Cases—Continued:
vi
Page
Coleman v. Watkins,
52 F. App’x 442 (10th Cir. 2002)............................ 19
Cook v. Fla. Parole & Prob. Comm’n,
749 F.2d 678 (11th Cir. 1985) ................................ 23
Davila v. Davis,
582 U.S. 521 (2017) .................................................. 3
Deters v. Collins,
985 F.2d 789 (5th Cir. 1993) .................................. 20
Dixon v. State of Florida,
388 F.2d 424 (5th Cir. 1968) .................................. 20
Dozie v. Cady,
430 F.2d 637 (7th Cir. 1970) .................................. 11
Evans v. Wills,
66 F.4th 681 (7th Cir. 2023) .............................. 9, 11
Ex parte Bollman,
8 U.S. 75 (1807) ...................................................... 24
Ex parte Hawk,
321 U.S. 114 (1944) .................................................. 2
Ex parte Royall,
117 U.S. 241 (1886) ............................................ 2, 29
Gay v. Ayers,
262 F. App’x 826 (9th Cir. 2008)............................ 21
Granberry v. Greer,
481 U.S. 129 (1987) .................................................. 3
Hankins v. Fulcomer,
941 F.2d 246 (3d Cir. 1991) ................................... 13
Harris v. Champion,
15 F.3d 1538 (10th Cir. 1994) ................................ 18
Hicks v. Trent,
No. 97-C-369 (W. Va. Cir. Ct. Apr. 22, 2025) .......... 6
Jackson v. Howard,
2025 WL 66051 (E.D. Mich. Jan. 10, 2025) .......... 25
Cases—Continued:
vii
Page
Jackson v. Jackson,
2025 WL 2741643 (9th Cir. Sept. 17, 2025) .......... 21
Johnson v. Bauman,
27 F.4th 384 (6th Cir. 2022) .................. 7, 12, 13, 25
Johnson v. Moran,
812 F.2d 23 (1st Cir. 1987) .................................... 17
Jones v. Crouse,
360 F.2d 157 (10th Cir. 1966) ................................ 18
Jones v. Hendrix,
599 U.S. 465 (2023) .................................................. 2
Jones v. Solem,
739 F.2d 329 (8th Cir. 1984) .................................. 16
Keinz v. Crosby,
2006 WL 408686 (11th Cir. Feb. 23, 2006) ........... 22
Kendall v. Quiros,
2025 WL 2930906 (D. Conn. Oct. 15, 2025) .......... 25
L’Heureux v. Pine,
1998 WL 1085784 (1st Cir. Nov. 10, 1998) ........... 17
Layne v. Gunter,
559 F.2d 850 (1st Cir. 1977) .................................. 17
Lee v. Stickman,
357 F.3d 338 (3d Cir. 2004) ............................. 13, 14
Lindsey v. Neal,
138 F.4th 1039 (7th Cir. 2025) ................ 8, 9, 10, 30
Lombardo v. Zanelli,
2025 WL 2940758 (E.D. Pa. Aug. 26, 2025) .......... 25
Lowe v. Duckworth,
663 F.2d 42 (7th Cir. 1981) .................................... 11
Merrifield v. Frame,
2025 WL 2851879 (S.D. W. Va. Oct. 8, 2025) ....... 25
Morton v. Dir. V.I. Bureau of Corr.,
110 F.4th 595 (3d Cir. 2024) ............................ 13, 14
Cases—Continued:
viii
Page
Mucie v. Missouri State Dep’t. of Corr.,
543 F.2d 633 (8th Cir. 1976) ............................ 15, 16
O’Neal v. Kenny,
49 F. App’x 84 (8th Cir. 2002).......................... 15, 16
O’Sullivan v. Boerckel,
526 U.S. 838 (1999) .................................................. 3
Odsen v. Moore,
445 F.2d 806 (1st Cir. 1971) .................................. 17
Paige v. Holloway,
2025 WL 337997 (M.D. Tenn. Jan. 29, 2025) ....... 25
Peyton v. Akers,
2024 WL 1530804 (E.D. Ky. Apr. 9, 2024) ............ 13
Phillips v. White,
851 F.3d 567 (6th Cir. 2017) .................................. 12
Plymail v. Mirandy,
671 F. App’x 869 (4th Cir. 2016)............................ 19
Preiser v. Rodriguez,
411 U.S. 475 (1973) .................................................. 3
Redd v. Chappell,
574 U.S. 1041 (2014) ................................................ 3
Rhines v. Weber,
544 U.S. 269 (2005) .................................................. 3
Rivers v. Guerreo,
605 U.S. 443 (2025) ................................................ 24
Roberites v. Colly,
546 F. App’x 17 (2d Cir. 2013) ............................... 21
Rose v. Lundy,
455 U.S. 509 (1982) ............................................ 3, 30
Schwindler v. Holt,
2018 WL 2091364 (S.D. Ga. Mar. 27, 2018).......... 23
Schwindler v. Holt,
2018 WL 2087248 (S.D. Ga. May 4, 2018) ............ 23
Cases—Continued:
ix
Page
Shelton v. Heard,
696 F.2d 1127 (5th Cir. 1983) ................................ 20
Shinn v. Ramirez,
596 U.S. 366 (2022) .......................................... 24, 26
Simmons v. Reynolds,
898 F.2d 865 (2d Cir. 1990) ................................... 22
Slack v. McDaniel,
529 U.S. 473 (2000) .................................................. 3
Slater v. Chatman,
147 F. App’x 959 (11th Cir. 2005).......................... 22
Smith v. Kansas,
356 F.2d 654 (7th Cir. 1966) .................................. 11
Star Athletica, L.L.C. v. Varsity Brands, Inc.,
580 U.S. 405 (2017) ................................................ 27
Story v. Kindt,
26 F.3d 402 (3d Cir. 1994) ..................................... 14
Taylor v. Stephens,
577 F. App’x 285 (5th Cir. 2014)............................ 21
Thomas v. Macon SP Warden,
2024 WL 1092510 (11th Cir. Mar. 13, 2024) ........ 23
Torres v. Reis,
2025 WL 1488490 (D. Conn May 23, 2025) .......... 25
Turner v. Bagley,
401 F.3d 718 (6th Cir. 2005) ............................ 11, 12
U.S. ex rel Geisler v. Walters,
510 F.2d 887 (3d Cir. 1975) ................................... 14
Vreeland v. Davis,
543 F. App’x 739 (10th Cir. 2013).......................... 18
Ward v. Freeman,
1995 WL 48002 (4th Cir. Feb. 8, 1995) ................. 19
Wells v. Marshall,
1998 WL 1085784 (1st Cir. Mar. 29, 1996) ........... 17
Cases—Continued:
x
Page
White v. McKinna,
1998 WL 39656198 (10th Cir. July 16, 1998) ....... 18
Williams v. Pennsylvania,
579 U.S. 11 (2016) .................................................... 5
Workman v. Tate,
957 F.2d 1339 (6th Cir. 1992) .......................... 11, 12
Statutes:
28 U.S.C. § 1254(1) ...................................................... 1
28 U.S.C. § 2254 ................................... 6, 11, 18, 25, 32
28 U.S.C. § 2254(a) .................................................... 25
28 U.S.C. § 2254(b) .............................. 2, 13, 17, 23, 25
28 U.S.C. § 2254(b)(1) .............................................. 1, 2
28 U.S.C. § 2254(b)(1)(A) ............................................. 6
28 U.S.C. § 2254(b)(1)(B)(i) ..................................... 2, 8
28 U.S.C. § 2254(b)(1)(B)(ii) . 2, 3, 6–13, 15, 16, 18, 19,
21–27, 30–32
Act of June 25, 1948, ch. 646, 62 Stat. 869, 967 ......... 3
Act of November 2, 1966, 80 Stat. 1104, 1105 ............ 3
Antiterrorism and Effective Death Penalty Act of
1996, 110 Stat. 1214, 1218 ....................................... 3
Other Authorities:
N. King, et al., Final Technical Report: Habeas
Litigation in U.S. District Courts (2007),
https://perma.cc/4U22-E5K2 .................................. 25
Table C-2: U.S. District Courts—Civil Cases Commenced, by Basis of Jurisdiction and Nature of
Suit, During the 12-Month Periods Ending June
30, 2024 and 2025,
https://perma.cc/8LKX-WPGR ............................... 25
Webster’s Collegiate Dictionary (5th ed. 1947) .. 27, 28
PETITION FOR WRIT OF CERTIORARI
Petitioner Alan Hicks respectfully petitions for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Fourth Circuit.
OPINIONS BELOW
The Fourth Circuit’s opinion is reported at 145
F.4th 408 and is reproduced in the appendix to this
petition at App. 1a–20a. The Fourth Circuit’s decision
rejecting rehearing en banc is unreported but reproduced at App. 62a. The district court’s opinion is unpublished but is available at 2023 WL 2711634 and is
reproduced at App. 22a–60a.
JURISDICTION
The Fourth Circuit entered its judgment on July
23, 2025. App. 21a. That court denied rehearing en
banc on August 19, 2025. App. 62a. This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
Section 2254(b)(1) of Title 28, U.S. Code, provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State;
or
(B)(i) there is an absence of available
State corrective process; or
(ii) circumstances exist that render such
process ineffective to protect the rights of
the applicant.
2
STATEMENT
Legal background.
The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) requires state prisoners to exhaust all adequate and available state remedies before
filing a habeas petition in federal court. 28 U.S.C.
§ 2254(b)(1). Federal courts may entertain unexhausted claims only when (i) “there is an absence of
available State corrective process” or (ii) “circumstances exist that render such process ineffective to
protect the rights of the applicant.” 28 U.S.C.
§ 2254(b)(1)(B)(i)–(ii).
“In understanding [AEDPA’s] statutory text, a
page of history is worth a volume of logic.” Jones v.
Hendrix, 599 U.S. 465, 472 (2023) (cleaned up). The
principle of exhaustion (and its exceptions) long predate AEDPA, and evolved as an equitable, judicially
created doctrine grounded in comity for state courts.
See Ex parte Royall, 117 U.S. 241, 253 (1886) (first articulating the exhaustion principle and its exception
for “any special circumstances requiring immediate
action”). Critically, exhaustion has never been an absolute requirement; it could be excused “where resort
to state court remedies has failed” to provide a full adjudication of a petitioner’s claims, either “because the
state affords no remedy . . . [or] the remedy afforded
by state law proves in practice unavailable or seriously
inadequate.” Ex parte Hawk, 321 U.S. 114, 118 (1944).
Ex parte Hawk thus stands for the principle that a federal court should defer to state corrective processes—
unless they are unavailable or ineffective.
In 1948, Congress codified this longstanding common-law doctrine—including its primary concern with
comity—in 28 U.S.C. § 2254(b), “citing Ex parte Hawk
3
as correctly stating the principle of exhaustion.” Rose
v. Lundy, 455 U.S. 509, 516, 516 n.8 (1982) (discussing
Reviser’s Notes in the appendix of the House Report).1
This Court’s decisions concerning exhaustion continue
to look to pre-AEDPA common law for interpretative
guidance. See, e.g., O’Sullivan v. Boerckel, 526 U.S.
838, 844–45 (1999); Slack v. McDaniel, 529 U.S. 473,
486 (2000); Rhines v. Weber, 544 U.S. 269, 276–77
(2005); Davila v. Davis, 582 U.S. 521, 527 (2017).
While this Court has never directly interpreted
the text of § 2254(b)(1)(B)(ii), it has held that, consistent with the common-law basis of the doctrine,
rules of exhaustion are “not rigid and inflexible.”
Granberry v. Greer, 481 U.S. 129, 136 (1987) (cleaned
up). Rather, they require “a factual appraisal by the
court in each special situation.” Id. (cleaned up). This
Court has also noted, without holding, that state-court
delay might constitute “circumstances rendering such
[state] process ineffective to protect the rights of” state
prisoners challenging their convictions. Preiser v. Rodriguez, 411 U.S. 475, 496–97 (1973); see also Redd v.
Chappell, 574 U.S. 1041, 1041 (2014) (Sotomayor, J.,
joined by Breyer, J., statements respecting denial of
certiorari) (suggesting § 2254(b)(1)(B)(ii) may excuse
non-exhaustion for a petitioner experiencing delay in
state proceedings). But this Court has never squarely
addressed the issue. And as explained below, lower
courts are floundering.
1 Congress updated § 2254 in 1966 and later with AEDPA in
1996, but the relevant text has remained substantively the same.
Compare Act of June 25, 1948, ch. 646, 62 Stat. 869, 967; with
Act of November 2, 1966, 80 Stat. 1104, 1105; and AEDPA, 110
Stat. 1214, 1218.
4
Factual and procedural background.
Hicks has spent the past 37 years fighting for a
chance to challenge his conviction and sentence on the
merits in state court. The Fourth Circuit described his
decades-long, state-court journey as fraught with “forgotten motions, improperly appointed judges, and inattentive counsel.” App. 3a.
1. In 1988, a West Virginia jury convicted Hicks
of murder, conspiracy, and grand larceny. App. 3a. He
is currently serving a life sentence without the possibility of parole. Id. He directly appealed to the Supreme Court of Appeals of West Virginia (SCAWV),
which affirmed his conviction. Id.
2. Shortly after his conviction, in 1989, Hicks challenged his sentence under West Virginia Rule of Criminal Procedure 35. App. 5a. The state trial court did
not rule on Hicks’s motion for nearly 30 years. App.
7a.
After eight years of radio silence on his Rule 35
motion, in 1997, Hicks submitted a pro se habeas petition, also in the state trial court. App. 5a–6a. That
court did not rule on Hicks’s petition for nearly 27
years. App. 9a.
The decades of intervening state proceedings on
both of Hicks’s cases were, as the Fourth Circuit described, “a Kafkaesque journey.” App. 3a. For the first
15 years, Hicks’s petition was assigned to a judge who
had been the lead prosecutor in Hicks’s underlying
trial.2 App. 5a. And for 15 years the court failed to take
2 Notably, this Court held that if a state postconviction-relief pe-
tition is assigned to a judge who served as the petitioner’s former
prosecutor, the “unconstitutional failure to recuse constitutes
5
any action on Hicks’s request for counsel. App. 6a. After 15 years, the state court eventually reassigned the
case and appointed counsel for Hicks, but in the meantime, the state court lost Hicks’s legal file, including
his trial transcript. Id. In the ensuing years, Hicks cycled through five different court-appointed attorneys,
most of whom never communicated with him. App. 6a–
8a. More recently, the state court reassigned his
case—again—to a different judge who had also formerly prosecuted Hicks’s underlying criminal trial.
App. 9a.
In the meantime, Hicks did what he could to get
the state court to make meaningful progress on his
Rule 35 motion and state habeas petition. Hicks wrote
numerous letters to the courts and filed two unsuccessful petitions for a writ of mandamus with the
SCAWV. App. 24a, 6a. In 2019, in response to a Rule
to Show Cause issued by the SCAWV pursuant to
Hicks’s second mandamus petition, the state trial
court dismissed Hicks’s Rule 35 motion because the
motion was “untimely.” App. 25a. Regarding Hicks’s
state habeas petition, the state trial court indicated
that it had appointed new counsel and set a briefing
schedule. App. 7a–8a. The SCAWV then dismissed
Hicks’s mandamus request and denied his petition for
rehearing. App. 36a. This Court denied certiorari.
Hicks v. West Virginia, 141 S. Ct. 862 (2020). It is not
clear that anything happened in Hicks’s state habeas
structural error even if the judge . . . did not cast a deciding vote.”
Williams v. Pennsylvania, 579 U.S. 11, 14 (2016). The Fourth Circuit declined to consider the implications of the potential dueprocess violation in Hicks’s proceedings, concluding that a “defect” in Hicks’s certificate of appealability required the court to
consider only the length of the state court’s delay. App. 11a–12a.
6
petition between July 2019 and July 2022. App. 32a–
33a.
3. In November 2021, Hicks filed a habeas petition pro se in federal court under 28 U.S.C. § 2254.
App. 4a. The state moved to dismiss the petition, arguing that Hicks failed to exhaust state remedies. Id.
Hicks admitted he had not completely exhausted the
state’s procedures under § 2254(b)(1)(A), but argued
that the 27-year, state-caused delay rendered the
state court’s proceedings “ineffective to protect” his
rights,
excusing
non-exhaustion
under
§ 2254(b)(1)(B)(ii). Id.
The district court adopted the magistrate judge’s
recommendation and dismissed Hicks’s federal habeas
petition, concluding he had to completely exhaust his
state-court remedies. App. 59a. But the district court
also held that the length of delay in the state’s proceedings, of which the “vast majority” was attributable
to the state, justified a certificate of appealability.
App. 43a, 4a. The district court acknowledged “delays
could resume at a future point” since the case would
continue in the same state court that “allowed proceedings to drag on for literal decades.” App. 57a–58a.
Hicks timely appealed. App. 4a.
4. One week before oral argument in the Fourth
Circuit, West Virginia submitted a Rule 28(j) letter indicating the state had moved to dismiss Hicks’s statecourt petition, after years of inactivity. App. 8a–9a.
And one month after the Fourth Circuit oral argument, the state court summarily granted the state’s
motion to dismiss, in a one-sentence order: “Motion to
Dismiss filed by Kanawha County Prosecuting Attorney is hereby GRANTED.” Hicks v. Trent, No. 97-C369 (W. Va. Cir. Ct. Apr. 22, 2025).
7
After being notified of the state court’s summary
disposition, the Fourth Circuit affirmed the district
court’s dismissal of Hicks’s federal habeas petition on
exhaustion grounds. App. 10a. The court acknowledged that the 27-year delay rendered any comity interest owed to West Virginia “unwarranted.” App. 14a.
Regardless, relying on the state court’s “last-minute”
dismissal alone, the Fourth Circuit reasoned that 28
U.S.C. § 2254(b)(1)(B)(ii) did not permit a federal court
to entertain Hicks’s habeas petition. App. 18a n.8. The
Fourth Circuit observed that the state court’s latebreaking movement allowed the federal appellate
court to avoid the “hard questions” about how “considerations like length of delay, blame for delay, and diligence by petitioner in pursuing his rights factor into
whether the exhaustion requirement has been excused.” Id. The Fourth Circuit denied Hicks’s petition
for rehearing. App. 62a.
REASONS FOR GRANTING THE PETITION
This
Court
has
never
interpreted
§ 2254(b)(1)(B)(ii) or explained what is necessary for a
federal court to excuse a petitioner from the exhaustion requirement under that provision. In the absence
of this Court’s guidance, the lower courts have embarked on divergent and conflicting paths, especially
on whether and when inordinate delay in state court
can excuse non-exhaustion, including when “last-minute action” in the state court categorically requires
exhaustion. App. 18a n.8. See Johnson v. Bauman, 27
F.4th 384, 391–95 (6th Cir. 2022) (describing the “judicial decision making (and confused decision making
at that)” various circuit courts have adopted in applying § 2254(b)(1)(B)(ii)). An entrenched and deepening
8
circuit split has plagued the lower courts on these
questions.
Less than two months before the Fourth Circuit’s
decision below, the Seventh Circuit reached the opposite conclusion on materially identical—and even less
compelling—facts. See Lindsey v. Neal, 138 F.4th
1039, 1043–45 (7th Cir. 2025) (holding that six years
of state-court delay rendered that process ineffective
under § 2254(b)(1)(B)(ii), even when a Rule 28(j) letter
notified the court of a pending motion to dismiss filed
in the state court within a month of the federal appellate oral argument). While Hicks and Lindsey’s irreconcilable outcomes provide the latest example of the
divide, as illustrated below, the courts of appeals’ conflicting approaches rival in age Hicks’s state-court proceedings.
Only this Court can resolve the divide on this
question of paramount importance, and this case provides an ideal vehicle to do so. Given the extreme delay, this case uniquely isolates the purely legal issue
of the significance of last-minute, state-court movement when applying § 2254(b)(1)(B)(ii). The petition
should be granted.
I. The courts of appeals are split over whether
last-minute, state-court movement forecloses
excusing
non-exhaustion
under
§ 2254(b)(1)(B)(ii).
Seven circuits are split two ways over the question
presented. In the Third, Sixth, Seventh, and Eighth
Circuits, inordinate delay is sufficient to excuse nonexhaustion under § 2254(b)(1)(B)(ii), even if statecourt proceedings suddenly reawaken during the pendency of federal proceedings. But the First, Fourth,
and Tenth Circuits disagree, holding that
9
§ 2254(b)(1)(B)(ii)’s pathway to federal court is foreclosed if a state court’s last-minute movement resurrects inordinately delayed proceedings (although even
these circuits diverge about under what circumstances
delay may excuse exhaustion). Meanwhile, the Fifth,
Ninth, Second, and Eleventh Circuits do not appear to
have addressed the last-minute-state-court-movement issue, but they employ different inordinate-delay
frameworks under § 2254(b)(1)(B)(ii), indicating an
even deeper split. Only this Court can resolve it.
In four circuits, § 2254(b)(1)(B)(ii) may excuse non-exhaustion even when statecourt movement resurrects inordinately
delayed proceedings.
Four circuits recognize that § 2254(b)(1)(B)(ii)
may excuse non-exhaustion of state remedies when
they are inordinately delayed, even when last-minute,
state-court movement signals an end to the delay.
1. The Seventh Circuit held, in stark contrast
to (and just two months earlier than) the Fourth Circuit’s decision below, that last-minute, state movement does not foreclose excusing non-exhaustion under § 2254(b)(1)(B)(ii) when a petitioner demonstrates
“both that the delay is ‘inordinate’ and that it is ‘attributable to the state.’” Lindsey v. Neal, 138 F.4th
1039, 1043 (7th Cir. 2025) (citing Evans v. Wills, 66
F.4th 681, 682 (7th Cir. 2023)). As such, the Seventh
Circuit recognizes that inordinate delay can constitute
circumstances that render state remedies ineffective,
even if the state moves to dismiss a state-court, postconviction-relief petition while the same petitioner’s
federal petition is pending. Id. at 1045.
In Lindsey, the petitioner’s pro se, state-court petition “virtually stalled” for six years. Id. at 1041. The
10
petitioner then filed a pro se habeas petition in federal
court, invoking § 2254(b)(1)(B)(ii) and arguing the
state’s delay “blocked his path” and rendered the
state’s processes “ineffective to protect” his rights. Id.
The district court dismissed the federal petition for
failure to exhaust. Id.
The Seventh Circuit vacated the dismissal. Id. at
1045. The court held that the six-year delay in state
court was inordinate under Seventh Circuit precedent,
and that the state was responsible for a significant
portion of the delay, “[e]ven if [the petitioner] bore
some responsibility.” Id. at 1043–45. The law demands
“steady movement that shows [a state’s] judicial processes are effectively ‘protect[ing] the rights of the applicant,’” the court explained. Id. at 1043 (citing
§ 2254(b)(1)(B)(ii)).
Notably, the court rejected the state’s attempt to
point to buzzer-beating movement in the state court.
Id. at 1045. One month after the Seventh Circuit’s oral
argument, the state filed a Rule 28(j) letter informing
the court of its state-court motion to dismiss the state
petition for failure to prosecute. Id. But the Seventh
Circuit held that § 2254(b)(1)(B)(ii) excused the petitioner from exhausting those reanimated state-court
proceedings. Id. The court explained that the state’s
“[r]ecent actions” only demonstrated its “intent on
dodging review rather than confronting the merits,”
and thus “serv[ed] as yet another illustration of the
[s]tate’s unwillingness to give [the petitioner] a fair
shake.” Id.
Long before Lindsey, the Seventh Circuit has excused non-exhaustion under § 2254(b)(1)(B)(ii) when
it observed inordinate delay at “a high level,” even in
the face of resurrected state proceedings. Evans, 66
11
F.4th at 685 (20-year delay excused non-exhaustion,
even when the state scheduled an evidentiary hearing
eight months after petitioner filed his federal habeas
petition); accord Smith v. Kansas, 356 F.2d 654, 656–
57 (7th Cir. 1966) (one-year delay excused non-exhaustion, despite state-court movement after petitioner filed his federal petition). Even in cases that do
not involve reawakened state proceedings, the Seventh Circuit takes a holistic view of “circumstances,”
including the length of delay, that can excuse non-exhaustion. See Carter v. Buesgen, 10 F.4th 715, 723 (7th
Cir. 2021) (four-year delay excused non-exhaustion);
Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981)
(same, with three-and-a-half year delay); Dozie v.
Cady, 430 F.2d 637, 638 (7th Cir. 1970) (same, with
17-month delay).
2. The Sixth Circuit similarly recognizes that a
state court’s last-minute movement can be “too late” to
foreclose
excusing
non-exhaustion
under
§ 2254(b)(1)(B)(ii). Turner v. Bagley, 401 F.3d 718, 725
(6th Cir. 2005). Excusing non-exhaustion is especially
appropriate when “the state clearly is responsible for
the delay.” Workman v. Tate, 957 F.2d 1339, 1344 (6th
Cir. 1992).
In Turner, while the petitioner’s direct appeal was
pending in state court for over eight years, he filed a
habeas petition in federal court. Turner, 401 F.3d at
720. The district court dismissed for failure to exhaust. Id. at 723. After that, the state court dismissed
the petitioner’s direct appeal for failure to prosecute.
Id. at 755. The Sixth Circuit vacated the district
court’s dismissal, notwithstanding the developments
in the state court. Id. at 727–28. The Sixth Circuit explained that § 2254’s exhaustion requirement is
rooted in “the presumption that states maintain
12
adequate and effective remedies to vindicate constitutional rights.” Id. at 724. And it would undermine the
comity and federalism principles underscoring the exhaustion requirement to deny federal review to claims
long ignored by state courts, the court reasoned. Id.
Even though the state court had disposed of the petitioner’s direct appeal while his federal proceedings
were pending, the petitioner was “not required to take
further futile steps” in state court in order “to be heard
in federal court.” Id. (cleaned up). Rather, after languishing for years in state court, he was entitled to
seek habeas relief in a federal forum. Id. at 725. Plus,
the state court did not exercise any diligence as to the
petitioner’s appeal until after he filed a federal habeas
petition, the Sixth Circuit noted. Id. at 727. As such,
the state court’s recent movement was “too late” to
foreclose relief under § 2254(b)(1)(B)(ii). Id. at 725.
Turner hardly stands alone in the Sixth Circuit’s
body of precedent applying § 2254(b)(1)(B)(ii). See,
e.g., Phillips v. White, 851 F.3d 567, 576 (6th Cir. 2017)
(six-year delay excused exhaustion); Workman, 957
F.2d at 1344 (same, with four-year delay).
But even within the Sixth Circuit, there is tension
around how to approach questions of inordinate delay
under § 2254(b)(1)(B)(ii). As Judge Readler has suggested, the Sixth Circuit’s (and other circuits’) longstanding “inordinate delay” standard “in many respects is unfaithful to Congress’s formulation in
§ 2254(b)(1)(B)(ii).” Johnson, 27 F.4th at 391. Judge
Readler acknowledged some circuits excuse non-exhaustion where the petitioner shows an inordinate delay in state proceedings alone, rather than asking
whether the state-court process is “ineffective to protect the rights of the applicant.” Id. at 393 (cleaned
up). But while the “inordinate delay” standard “on its
13
face” appears to displace the statutory text, upon
closer inspection, the Sixth Circuit’s formulation is
consistent with the exhaustion doctrine’s history and
tradition codified in § 2254(b) because it requires a
showing that the delay is both inordinate and “attributable to the state,” the court explained. Id. at 394.
In the wake of the incongruity explained in Johnson, district courts within the Sixth Circuit are struggling with how to analyze whether inordinate delay
justifies
excusing
non-exhaustion
under
§ 2254(b)(1)(B)(ii)—especially when there is latebreaking, state-court movement while federal proceedings are pending. See, e.g., Peyton v. Akers, 2024
WL 1530804, at *11–12 (E.D. Ky. Apr. 9, 2024) (noting
Workman and Johnson standards differ and holding
exhaustion was required despite six-year delay in
state court because of recent movement).
3. The Third Circuit also recognizes that some
state-court delays are incurable by “any amount of
progress” in state proceedings, applying a two-part inquiry. Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.
2004) (eight-year delay unjustified). First, the court
determines if the delay is inordinate, considering all
relevant factors but emphasizing the length of the delay, any degree of progress, and who bears responsibility for the delay. Morton v. Dir. V.I. Bureau of Corr.,
110 F.4th 595, 601–02 (3d Cir. 2024). Second, if inordinate delay “has stymied a petitioner’s state case,”
the burden of persuasion shifts to the state to demonstrate why exhaustion should be required. Id. at 598,
601–02. Thus, in the Third Circuit, when a state court
fails to act on a petitioner’s claims, comity does not require exhaustion. Hankins v. Fulcomer, 941 F.2d 246,
249–50 (3d Cir. 1991) (11-year delay excused non-exhaustion because “comity weighs less heavily” when
14
the state has had “ample opportunity to pass upon the
matter” and cannot justify the delay).
In Burkett v. Cunningham, the Third Circuit excused the petitioner’s non-exhaustion because of the
state court’s continuing five-and-a-half-year delay.
826 F.2d 1208, 1218–19 (3d Cir. 1987). The court pithily held: “It is the legal issues that are to be exhausted,
not the petitioner.” Id. (cleaned up). In the face of such
a delay, the Third Circuit reasoned that the state court
was owed no further deference or comity. Id. at 1218.
The court further explained that even if the cause of
state-court delay was removed, the petitioner had already waited long enough and could therefore properly
seek relief in federal court. Id. at 1218 n.31.
The Third Circuit has consistently excused nonexhaustion based on inordinate state-court delays,
even in the face of recent activity on the state-court
docket. See, e.g., Morton, 110 F.4th at 595 (six-year delay inordinate, even though state-court status conference occurred); Story v. Kindt, 26 F.3d 402, 406 (3d
Cir. 1994) (nine-year delay excused non-exhaustion
despite state-court movement after filing federal habeas petition); Codispoti v. Howard, 589 F.2d 135,
141–42 (3d Cir. 1978) (same, with 12-year delay, despite state’s assertion it would review petition in a future hearing, because “once the state has been afforded full opportunity to adjudicate,” the exhaustion
requirement has been met (cleaned up)); U.S. ex rel
Geisler v. Walters, 510 F.2d 887, 890–91, 893 (3d Cir.
1975) (same, with three-plus-year delay despite state
court denying petitioner’s motion for a new trial after
prompting by the federal district court); see also Lee,
357 F.3d at 342 (same, and noting “it is difficult to imagine any amount of progress justifying an eight-year
delay in reaching the merits of a petition”).
15
4. The Eighth Circuit employs a slightly different analysis but agrees that § 2254(b)(1)(B)(ii) may excuse non-exhaustion even if state-court movement resurrects inordinately delayed proceedings. See Mucie v.
Missouri State Dep’t. of Corr., 543 F.2d 633, 635–36
(8th Cir. 1976). To determine whether delay excuses
non-exhaustion, the court considers “the history of a
petitioner’s attempts to obtain state remedies, including the length of the delay, whether there has been
any activity or progress in the state court action, and
whether the delay is attributable to the state or petitioner.” O’Neal v. Kenny, 49 F. App’x 84, 85 (8th Cir.
2002) (summarizing precedent regarding the application of § 2254(b)(1)(B)(ii)).
In Mucie, after three years of delay on his statecourt motion to vacate his conviction, the petitioner
filed a habeas petition in federal court. 543 F.2d at
635. A month later, the state court denied his motion,
and the petitioner appealed to the state appellate
court. Id. In federal court, the petitioner argued that
the delay in state proceedings (including the additional time it would take the state appellate court to
hear the case) allowed him a more immediate remedy
in federal courts. Id. The district court disagreed and
dismissed his federal petition for failure to exhaust.
Id. But the Eighth Circuit reversed, holding the statecourt delay rendered further exhaustion unnecessary.
Id. Exhaustion is a doctrine of comity, and after the
state failed to file a response to the petitioner’s statecourt motion for over a year, its comity interest had
expired, the Eighth Circuit reasoned. Id. at 636. The
state appeared to have been “unnecessarily and intentionally dilatory,” so precluding the petitioner from a
federal habeas forum would “reduce[] the Great Writ
to a sham and mockery.” Id. at 636. The court was also
16
concerned that if exhaustion were required, the petitioner would be forced to wait another year before the
state court passed on his appeal, thus furthering the
delay. Id.
However, Eighth Circuit precedent indicates that
in some cases, state-court delay is not sufficient alone,
but rather requires “the existence of some additional
factor,” such as intentionally dilatory conduct by the
state, to justify excusing non-exhaustion. Jones v. Solem, 739 F.2d 329, 331 (8th Cir. 1984) (exhaustion required despite over-one-year delay in postconviction
proceedings where state court issued final order after
petitioner filed federal habeas petition and petitioner
failed to show an additional factor). But cf. O’Neal, 49
F. App’x at 85 (noting the Eighth Circuit does “not always” require showing an additional factor before intervening (cleaned up)).
In three circuits, § 2254(b)(1)(B)(ii) cannot
excuse non-exhaustion when state-court
movement resurrects inordinately delayed
proceedings.
The First, Tenth, and now Fourth Circuits appear
to categorically prohibit excusing non-exhaustion under § 2254(b)(1)(B)(ii) if there is last-minute, statecourt movement, even after an inordinate delay. Yet
even those circuits cannot agree on when state-court
delays can constitute circumstances rendering proceedings ineffective.
1. The First Circuit proscribes excusing non-exhaustion when last-minute movement resurrects
state-court proceedings, even after a state court inordinately and unjustifiably delays review of a petitioner’s claims. Layne v. Gunter, 559 F.2d 850, 851–52
17
(1st Cir. 1977); see also Odsen v. Moore, 445 F.2d 806,
807 (1st Cir. 1971) (three-year delay may excuse nonexhaustion unless in the meantime the state court
“move[s] petitioner’s state proceedings effectively forward”).
In Layne, the petitioner filed a federal habeas petition, arguing the state’s three-year delay on his motion for authorization of a transcript in his direct appeal excused non-exhaustion. Id. at 851. After the federal proceedings were instituted, the state court
granted his motion for a transcript. Id. The federal district court dismissed on exhaustion grounds, despite
the long delay. Id. The First Circuit affirmed, holding
that it was inappropriate for federal courts to excuse
non-exhaustion under § 2254(b) whenever state-court
processes were presently available, even in the face of
delay. Id. at 851. In its view, once a federal habeas petition is filed, a state may (and should be incentivized
to) remedy the delay at the earliest moment, citing the
delicacy of comity. Id. at 851–52.
Since Layne, the First Circuit has consistently
held that exhaustion is required whenever state proceedings are presently available, notwithstanding delay. See, e.g., Johnson v. Moran, 812 F.2d 23, 23 (1st
Cir. 1987) (requiring exhaustion despite 19-month delay when “at the time the district court reviewed the
federal habeas petition, the state court had acted, if
arguably somewhat tardily, on the state postconviction petition”); Wells v. Marshall, 1998 WL 1085784,
at*1 (1st Cir. Mar. 29, 1996) (exhaustion required despite four-year delay because of recent state-court
movement); L’Heureux v. Pine, 1998 WL 1085784, at
*1 (1st Cir. Nov. 10, 1998) (same); Branco v. Massachusetts, 2021 WL 8692680, at *1 (1st Cir. Nov. 22,
2021) (denying certificate of appealability because,
18
inter alia, state court dismissed direct appeal while
petitioner’s § 2254 petition was pending).
2. The Tenth Circuit similarly declines to excuse non-exhaustion under § 2254(b)(1)(B)(ii) whenever state-court dockets show recent signs of life. See,
e.g., Vreeland v. Davis, 543 F. App’x 739, 742 (10th Cir.
2013).
In Vreeland, shortly after the petitioner filed his
federal habeas petition, the state court affirmed his
conviction on direct appeal—after six years of delay.
Id. at 740. The district court dismissed his petition for
failure to exhaust because he was concurrently petitioning the state supreme court for discretionary review. Id. The Tenth Circuit affirmed, emphasizing
that non-exhaustion cannot be excused by
§ 2254(b)(1)(B)(ii) on the basis of a delay that had
since ended. Id. at 742. The court reasoned that when
state-court movement resurrects proceedings, comity
interests compel federal courts to allow state litigation
to “run its course,” even after state-court delays. Id.
That said, the Tenth Circuit has its own idiosyncratic rules for excusing non-exhaustion based on “excessive and inexcusable” state-court delays. Jones v.
Crouse, 360 F.2d 157, 158 (10th Cir. 1966). For direct
appeals in state courts, a two-year delay gives rise to
a presumption that state processes are ineffective.
Harris v. Champion, 15 F.3d 1538, 1546 (10th Cir.
1994). But the Tenth Circuit has declined to extend a
burden-shifting approach to the collateral-postconviction context, and instead weighs the state’s responsibility for the delay. See White v. McKinna, 1998 WL
39656198, at *1 (10th Cir. July 16, 1998) (refusing to
extend Harris to delayed collateral proceedings); Body
v. Watkins, 51 F. App’x 807, 811–12 (10th Cir. 2002)
19
(requiring exhaustion despite nine-year delay); Coleman v. Watkins, 52 F. App’x 442, 443–44 (10th Cir.
2002) (same, with six-year delay).
3. The Fourth Circuit, historically, held “state
remedies may be rendered ineffective by inordinate
delay or inaction in state proceedings.” Ward v. Freeman, 1995 WL 48002, at *1 (4th Cir. Feb. 8, 1995); accord Plymail v. Mirandy, 671 F. App’x 869, 870–71
(4th Cir. 2016) (vacating district court’s exhaustionbased dismissal because 20-year delay was partially
attributable to the state).
But in Hicks’s case, as explained above, the court
broke new ground on the question and effectively held
that federal courts are not permitted to intervene under § 2254(b)(1)(B)(ii) if a state’s “last-minute” dismissal ends the delay, even a delay covering three decades
wherein the state lost its comity interest. App. 18a n.8.
Four other circuits have not addressed
last-minute, state-court movement, but apply
distinct
legal
analyses
under
§ 2254(b)(1)(B)(ii), indicating an even
deeper split.
Other circuit courts have yet to directly confront
whether § 2254(b)(1)(B)(ii) forecloses excusing non-exhaustion in the face of last-minute, state-court movement. But they employ distinct frameworks to assess
when delay can constitute circumstances rendering
state processes ineffective. These frameworks diverge
from the other circuits’, further highlighting the need
for this Court’s authoritative voice.
1. The Fifth Circuit’s stance on the issue is elusive, previously requiring exhaustion after a last-minute, state-court dismissal ended a delay, Reynolds v.
Wainwright, 460 F.2d 1026, 1027 (5th Cir. 1972),
20
while suggesting (unlike the Fourth Circuit) that “at
some point in time exhaustion need not be further exhausted,” Dixon v. State of Florida, 388 F.2d 424, 425–
26 (5th Cir. 1968). It is unclear how the Fifth Circuit
would assess a state court’s dismissal in the circumstances of an extreme delay, such as Hicks’s.
In Reynolds, after the petitioner filed his pro se
federal habeas petition, the state court ended its
nearly one-year delay and denied his motion to vacate.
460 F.2d at 1027. The district court dismissed his federal habeas petition for failure to exhaust. Id. at 1026.
The Fifth Circuit affirmed, rejecting the petitioner’s
argument that the court should only consider whether
he had effective state avenues at the time of filing. Id.
Balancing the “federalism interests of comity” with
“the rights of the petitioner,” the court concluded that
the state courts, “now available” to review an appeal
of the denied motion, should hear the issue before federal intervention. Id. at 1027. At the same time, the
Fifth Circuit acknowledged that exhaustion can be excused by an unreasonable delay, “at some point.” Id.;
see, e.g., Shelton v. Heard, 696 F.2d 1127, 1128–29
(5th Cir. 1983) (16-month delay excused non-exhaustion); Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir.
1978) (same, over one-year delay).
This peculiarity may chalk up to the Fifth Circuit’s unique approach: delay can qualify as an “exceptional circumstance of peculiar urgency” that allows a
federal habeas forum only if the delay is wholly the
fault of the state. Deters v. Collins, 985 F.2d 789, 795
(5th Cir. 1993) (cleaned up). State-court delay cannot
excuse a failure to exhaust when the petitioner contributed to the delay, even minimally. Id. Therefore,
the exhaustion inquiry is often concentrated on
whether the petitioner contributed to the delay, and
21
not necessarily on whether there has been recent state
progress. See Taylor v. Stephens, 577 F. App’x 285, 287
(5th Cir. 2014) (exhaustion required despite threeyear delay when delay was partially attributable to
state’s inability to contact petitioner’s attorney).
2. The Ninth and Second Circuits both look to
the Barker v. Wingo, 407 U.S. 514, 530 (1972), factors
when determining whether inordinate delay satisfies
§ 2254(b)(1)(B)(ii): “(1) the length of the delay; (2) the
reason for the delay; (3) the defendant’s assertion of
his right; and (4) prejudice to the defendant.” Gay v.
Ayers, 262 F. App’x 826, 827–28 (9th Cir. 2008) (citing
Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (exhaustion required despite 19-month delay in state habeas petition)); see also Jackson v. Jackson, 2025 WL
2741643, at *1 (9th Cir. Sept. 17, 2025) (exhaustion
required despite 13-month delay in personal-restraint
petition). While the Ninth Circuit has yet to clearly
address how last-minute, state-court movement affects the application of the Barker factors, presumably, recent progress would not be dispositive, consistent with the circuits that apply a multi-factor analysis to determine when circumstances render state
processes ineffective under § 2254(b)(1)(B)(ii).
The Second Circuit imports the Barker factors,
plus a “fifth consideration” of “federal-state comity,” to
determine whether inordinate delay excuses non-exhaustion. Brooks v. Jones, 875 F.2d 30, 31–32 (2d Cir.
1989). So far, the court has reached the question only
as to delayed direct appeals and not as to delayed collateral, postconviction proceedings. See, e.g., Roberites
v. Colly, 546 F. App’x 17, 19 (2d Cir. 2013). Assuming
the Second Circuit applies the Barker factors to delayed collateral proceedings, late-breaking state progress would likely not be dispositive, especially if there
22
was no state decision when the petitioner filed his federal habeas petition. See Simmons v. Reynolds, 898
F.2d 865, 868 (2d Cir. 1990).
In Simmons, a petitioner suffered a six-year delay
in his state-court direct appeal before filing a habeas
petition in federal court. Id. at 866. While the federal
proceedings were pending, the state court affirmed his
conviction on direct appeal, ending the six-plus-year
delay. Id. at 867. Still, the district court applied
§ 2254(b)(1)(B)(ii) and excused the petitioner’s failure
to exhaust state remedies. Id. The Second Circuit affirmed, explaining that the petitioner “was not required to take further futile steps in state court in order to be heard in federal court.” Id. at 868.
3. The Eleventh Circuit has not determined
whether late-breaking movement by state courts categorically forecloses § 2254(b)(1)(B)(ii)’s application,
but the court does consider “recent progress” in state
proceedings when determining if circumstances exist
that render state processes ineffective. Keinz v.
Crosby, 2006 WL 408686, at *2 (11th Cir. Feb. 23,
2006) (exhaustion required despite two-year delay,
partially due to scheduled evidentiary hearing); accord Slater v. Chatman, 147 F. App’x 959, 960 (11th
Cir. 2005) (exhaustion required despite 14-month delay in appointment of counsel because the state courts
are “now moving forward,” but also acknowledging exhaustion “can be reached by the lapse of time at some
point” (cleaned up)). The court does not appear to have
answered the question directly because the focus of
the court’s inquiry is whether the state can justify the
delay. See Keinz, 2006 WL 408686, at *2 (first finding
petitioner was responsible for the delay before addressing state-court movement); see also, e.g., Cook v.
23
Fla. Parole & Prob. Comm’n, 749 F.2d 678, 680 (11th
Cir. 1985) (citing Reynolds, 460 F.2d 1026);3 Thomas
v. Macon SP Warden, 2024 WL 1092510, at *2 (11th
Cir. Mar. 13, 2024) (15-month delay may excuse nonexhaustion if unjustified).
While the Eleventh Circuit theoretically recognizes state progress as a factor, in practice, it appears
to have never excused non-exhaustion whenever recent state movement occurred. Accordingly, district
courts applying the Eleventh Circuit’s precedents
have held that last-minute, state-court progress functionally forecloses excusing non-exhaustion. See, e.g.,
Schwindler v. Holt, 2018 WL 2091364, at *1–2 (S.D.
Ga. Mar. 27, 2018), report and recommendation
adopted, 2018 WL 2087248, at *1 (S.D. Ga. May 4,
2018) (requiring exhaustion despite 14-year delay
when state petition was decided and pending appeal
after filing federal habeas petition).
***
The circuits’ conflicting interpretations of
§ 2254(b)(1)(B)(ii) are exhausting to puzzle. This
Court’s absence from the arena has produced fundamental confusion over the meaning and purpose of
§ 2254(b)(1)(B)(ii)—especially when it comes to latebreaking action in pending state proceedings—that
only this Court can resolve.
This question need not percolate longer. Over the
past seventy years, numerous courts have addressed
inordinate delay under § 2254(b), and no clarity has
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
24
emerged. If the question goes unanswered, the status
quo will continue to promote disparate treatment of
identical claims.
Take Hicks’s case. In the Seventh and Sixth Circuits, Hicks’s inordinate 27-year delay, predominantly
attributable to the state’s mismanagement, would excuse non-exhaustion. The same result would obtain
under the factors the Third Circuit considers. Even
the Ninth Circuit’s Barker factors would weigh heavily
in Hicks’s favor. If Hicks were imprisoned not in West
Virginia but just across the state border in Pennsylvania, Ohio, or Kentucky, he would be free to challenge
his conviction in federal court. AEDPA’s exhaustion
rules should not hinge on the fortuity of circuit boundaries.
II. The question presented is recurring and critically important.
Questions regarding AEDPA’s procedural hurdles, those gatekeeping the “great constitutional privilege” of the writ of habeas corpus, Ex parte Bollman,
8 U.S. 75, 95 (1807), are a fixture of this Court’s
docket. See, e.g., Bowe v. United States, 2024 WL
4038107 (11th Cir. June, 27, 2024), cert granted, 145
S. Ct. 1122 (Jan. 17, 2025) (No. 24-5438) (§ 2244(b));
Rivers v. Guerrero, 605 U.S. 443 (2025) (§ 2244(b)(2));
Jones v. Hendrix, 599 U.S. 465 (2023) (§ 2255(e));
Shinn v. Ramirez, 596 U.S. 366 (2022) (§ 2254(e)(3)).
Surprisingly, however, this Court has never interpreted § 2254(b)(1)(B)(ii).
The lower courts are constantly struggling to figure out when § 2254(b)(1)(B)(ii) excuses non-exhaustion, especially within the context of inordinate delay
in state-court proceedings. That is no wonder, given
the prevalence of habeas petitions. In the past year or
25
so, about one out of every twenty civil cases commenced in federal district courts was a § 2254 petition.
See Table C-2: U.S. District Courts—Civil Cases Commenced, by Basis of Jurisdiction and Nature of Suit,
During the 12-Month Periods Ending June 30, 2024
and 2025, https://perma.cc/8LKX-WPGR (showing
14,106 non-capital habeas petitions filed in district
courts, out of a total of 287,441 civil cases commenced,
in the 12 months preceding July 31, 2025); see also N.
King, et al., Final Technical Report: Habeas Litigation
in
U.S.
District
Courts
57
(2007),
https://perma.cc/65GA-MMYF (concluding at the time
of the study that approximately 11% of habeas cases
were dismissed on exhaustion grounds). And in every
one of those cases, the petitioner had to show that any
available state remedies were exhausted or that
§ 2254(b)(1)(B)(ii)’s exception applies. See 28 U.S.C.
§ 2254(a)–(b).
Accordingly, the lower courts are frequently
tasked with interpreting § 2254(b)(1)(B)(ii) in the absence of this Court’s guidance. See, e.g., Merrifield v.
Frame, 2025 WL 2851879, at *1 (S.D. W. Va. Oct. 8,
2025); Kendall v. Quiros, 2025 WL 2930906, at *5 (D.
Conn. Oct. 15, 2025); Brown v. Warden, London Corr.
Inst., 2025 WL 2531463, at *2 (S.D. Ohio Sept. 3,
2025), report and recommendation adopted, 2025 WL
2734242, at *1 (S.D. Ohio Sept. 25, 2025); Lombardo
v. Zanelli, 2025 WL 2940758, at *1 n.1 (E.D. Pa. Aug.
26, 2025); Torres v. Reis, 2025 WL 1488490, at *5–6
(D. Conn May 23, 2025); Paige v. Holloway, 2025 WL
337997, at *2 (M.D. Tenn. Jan. 29, 2025) (“[T]he Sixth
Circuit in its prior cases has failed to ‘explicitly define’
what an inordinate delay means . . . .”) (citing Johnson, 27 F.4th at 394); Jackson v. Howard, 2025 WL
66051, at *4–5 (E.D. Mich. Jan. 10, 2025).
26
On top of that, the phenomenon of state-court delays in postconviction proceedings holds grave consequences for all involved. For states, delay disrupts
needed finality “essential to both the retributive and
deterrent functions” of criminal law. Shinn, 596 U.S.
at 391 (citing Calderon v. Thompson, 523 U.S. 538,
555 (1998)). Even more significant are the stakes for
petitioners. Hicks’s experience with inordinate delay,
though extreme, is all too common, as the previous discussion illustrates. When postconviction proceedings
crawl through state courts, even the most diligent petitioners are left in harrowing conditions. Time impedes zealous representation, witnesses forget information or pass away, and case files and transcripts are
lost—all of which happened to Hicks during the decades-long delays he has experienced in state court.
Sadly, Hicks’s experience, though out of the ordinary,
is far from unique.
III. The Fourth Circuit wrongly allowed last-minute, state-court movement to supplant the
totality-of-the-circumstances,
comity-focused inquiry § 2254(b)(1)(B)(ii) requires.
The Fourth Circuit thought § 2254(b)(1)(B)(ii) was
so limited as to require the dismissal of Hicks’s petition as unexhausted solely “on account of late-breaking developments in Hicks’s state postconviction proceedings.” App. 10a. That was wrong. As other circuits
have correctly concluded, the statute is not so circumscribed as to prevent federal courts from considering
the totality of the “circumstances” that render state
proceedings “ineffective,” even when state courts
awaken dormant proceedings. The Fourth Circuit has
thus broken with the Seventh, Sixth, Third, and
27
Eighth Circuits, and joins the First and Tenth Circuits
on the wrong side of the circuit split.
The Fourth Circuit’s decision is at odds
with the statute’s plain text.
In interpreting Congress’s command in
§ 2254(b)(1)(B)(ii), courts must begin with the statute’s text, giving the words used their “ordinary, contemporary, common meaning.” Star Athletica, L.L.C.
v. Varsity Brands, Inc., 580 U.S. 405, 408 (2017). However, the inquiry “is not confined to a single sentence
when the text of the whole statute gives instruction as
to its meaning.” Id. As the Fourth Circuit noted, the
interpretive inquiry ends “if the statutory language is
unambiguous and the statutory scheme is coherent
and consistent.” App. 16a.
Here, the statutory text requires courts to ascertain whether “circumstances” exist that “render” state
processes “ineffective” to protect the rights of the petitioner. 28 U.S.C. § 2254(b)(1)(B)(ii). While the Fourth
Circuit made much of the fact that this provision is
written in the present tense, App. 16a–17a, it neglected to grapple with the words themselves. Both operative terms—“circumstances” and “ineffective”—are
broad and functional.
“Circumstances,” in its ordinary usage, means
“condition[s], fact[s], or event[s] accompanying, or determining the occurrence of another fact or event.”
Circumstance, Webster’s Collegiate Dictionary 183
(5th ed. 1947). This word speaks to the real-world conditions surrounding a petitioner’s pursuit of relief, and
invites a holistic assessment of all facts and conditions
that may tend to “render” the state process ineffective.
Accordingly, the Fourth Circuit erred in deciding to
leave unresolved the “hard questions,” such as “the
28
extent to which considerations like length of delay,
blame for delay, and diligence by the petitioner . . .
factor into whether the exhaustion requirement has
been excused.” App. 18a n.8. Those considerations are
precisely the “circumstances” the text requires courts
to analyze.
“Ineffective” must likewise be read in its ordinary
sense: “not effective; productive of no effect; ineffectual.” Ineffective, Webster’s Collegiate Dictionary 513
(5th ed. 1947); see also Ineffectual, Webster’s Collegiate Dictionary 513 (5th ed. 1947) (“not effectual; not
producing the proper or usual effect”). As its definition
suggests, this term does not require a showing of absolute futility (which would collapse the “absence of
available state court processes” and “ineffective” exceptions provisions into each other), nor does it license
premature resort to federal court. Rather, it empowers
federal judges to apply their equitable judgment to determine whether state procedures afford a meaningful—or effective—avenue of redress. In this ordinary
usage, a proceeding may be understood to be “ineffective” even if a resolution now seems near, because ineffectiveness turns on whether the state process has
functioned as a meaningful avenue for relief—not
merely on whether it may someday reach a resolution.
For example, a drive-through car wash that should ordinarily take a couple of minutes would be “ineffective” if it instead lasted a couple of hours, because it is
not performing efficiently or as expected, regardless of
whether a car ultimately emerges clean at the end. In
this sense, “ineffective” is not a switch that can be
flipped back and forth—it is a quality that attaches
after a certain (high) threshold of accumulated inefficiency and abnormal operation.
29
The Fourth Circuit incorrectly treated the ineffectiveness of Hicks’s state-court proceedings as a purely
prospective determination, “regardless of whether
they were ineffective before.” App. 17a. Indeed, the
court concluded that because “West Virginia is finally
addressing Hicks’s case” after “much prodding and
way too much time,” it “no longer appear[ed]” that
state processes were ineffective. Id. This concedes the
key point: that the “decades of delay that have plagued
Hicks’s case” had already made “West Virginia’s postconviction system . . . ineffective to protect Hicks’s
rights.” Id. If the Fourth Circuit’s interpretation were
correct, a state would face a perverse incentive to drag
out its postconviction proceedings as long as possible,
in hopes that the petitioner’s case (or worse, the petitioner himself) weakens in the meantime. And all it
would have to do to foreclose a federal forum is make
a pump fake towards progress at the last minute (or,
as in Hicks’s case, just summarily dismiss the petition). The statute simply does not require federal
courts to abide this kind of jurisdictional gamesmanship.
The Fourth Circuit’s decision is expressly
inconsistent
with
the
common-law
tradition codified by the statute.
As explained above, Congress codified the exhaustion doctrine’s flexible common-law tradition, retaining its core equitable balance: federal courts must defer to available state corrective processes, but not
where they are ineffective. See pp. 2–3, supra. And the
exhaustion doctrine’s central inquiry, as this Court
has recognized since 1886 in Ex parte Royall, 117 U.S.
at 252–53, is comity.
30
Despite nodding to these principles and cases, the
Fourth Circuit expressly broke from the tradition they
stand for. App. 18a. The Fourth Circuit (correctly) held
that, “given West Virginia’s failure to resolve Hicks’s
claim for such an extended duration, comity towards
any interest it might have in being the first to answer
Hicks’s claim is unwarranted.” App. 14a; see also App.
15a n.7 (concluding, again, “no comity is warranted”).
But as this Court has repeatedly acknowledged, comity is the singular principle animating the exhaustion
doctrine. Rose, 455 U.S. at 515. The Fourth Circuit
thus misinterpreted § 2254(b)(1)(B)(ii), which,
properly understood in light of the longstanding tradition it codified, requires federal courts to equitably
balance a petitioner’s need for the swift protection of
his constitutional rights with any comity owed to state
courts. By untethering its strained reading of
§ 2254(b)(1)(B)(ii) from principles of comity, the
Fourth Circuit ran afoul of decades of tradition, common-law principles, and this Court’s precedent.
IV. This case is an excellent vehicle to resolve
the question.
This case is an ideal vehicle to resolve the circuit
split and answer the question that has been beleaguering the lower courts.
First, this case comes at a time when the circuit
split is particularly ripe. The narrow issue here has
percolated in several circuits, and nearly every circuit
has interpreted § 2254(b)(1)(B)(ii) in a different manner, resulting in a messy field that calls for this
Court’s review. Indeed, the Seventh Circuit’s opinion
in Lindsey v. Neal and the Fourth Circuit’s decision
below are diametrically opposed and were issued only
two months apart.
31
Second, although Hicks’s experience is all too
common, his history in the state court, combined with
the timing and posture of the Fourth Circuit’s decision, uniquely positions this case to answer the difficult questions confounding lower courts. Hicks has
been wrongfully denied the opportunity to challenge
his sentence in a federal forum, after more than three
decades of nonfeasance in state court. Even the Fourth
Circuit acknowledged Hicks’s “Kafkaesque” experience navigating “West Virginia’s nearly three-decade
delay,” which “no doubt offends basic notions of how a
state should treat its prisoners.” App. 3a, 16a, 19a.
The severity of the delay and the state court’s other
mishaps help to analytically isolate the impact of the
state court’s late-breaking movement. In contrast, a
later petition with a less-drastic miscarriage of justice
(such as a case with the same outcome but a much
shorter state-court delay) would make it harder for the
Court to parse out the specific significance of the latebreaking state-court movement that served as the singular difference-maker in the Fourth Circuit below (as
it appears to be in the First and Tenth Circuits).
Relatedly, this case’s facts present the Court with
the opportunity to decide the issue as narrowly or
broadly as it deems appropriate. Hicks challenges the
Fourth Circuit’s determination that last-minute movement in state court was a dispositive factor that precluded
excusing
non-exhaustion
under
§ 2254(b)(1)(B)(ii), but his case would also allow this
Court to delve into the broader issue of whether and
when the provision can excuse non-exhaustion in the
context of state-court delays more generally. Several
circuits, for example, will entertain a federal habeas
petition in circumstances where an inordinate delay
alone has rendered state proceedings ineffective.
32
Finally, this case presents a pure legal question
about the statutory interpretation of a key—and ubiquitously invoked—statutory provision that this Court
has never squarely addressed. Whether state-court
movement forecloses excusing non-exhaustion under
§ 2254(b)(1)(B)(ii) depends only on what the clause’s
text, purpose, and structure mean within § 2254 more
generally, and it is dispositive in Hicks’s case.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
STEVEN J. ALAGNA
Counsel of Record
WASHINGTON UNIVERSITY
SCHOOL OF LAW APPELLATE CLINIC
One Brookings Drive
St. Louis, MO 63130
(314) 935-7238
salagna@wustl.edu
Counsel for Petitioner
November 2025
APPENDIX
TABLE OF CONTENTS
APPENDIX A:
Opinion, 4th Cir., No. 23-6447
(July 23, 2025) .............................. 1a
APPENDIX B:
Judgment, 4th Cir., No. 23-6447
(July 23, 2025) ............................ 21a
APPENDIX C:
Opinion and Order Granting Motion to Dismiss, S.D. W.Va., No.
3:21-cv-00618 (Mar. 30, 2023) ... 22a
APPENDIX D: Judgment, S.D. W.Va., No. 3:21-cv00618 (Mar. 30, 2023) ................ 61a
APPENDIX E:
Order Denying Petition for Rehearing En Banc, 4th Cir., No. 23-6447
(Aug. 19, 2025)............................ 62a
1a
APPENDIX A
PUBLISHED
___________________
UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT
___________________
No. 23-6447
___________________
ALAN LANE HICKS,
Petitioner – Appellant,
v.
JONATHAN FRAME, Superintendent,
Respondent – Appellee.
___________________
Appeal from the United States District Court for
the Southern District of West Virginia, at Huntington. Robert C. Chambers, United States District
Judge. (3:21-cv-00618)
___________________
Argued: March 19, 2025
Decided: July 23, 2025
___________________
Before THACKER, RICHARDSON, and RUSHING, Circuit Judges
___________________
2a
Affirmed by published opinion. Judge Richardson
wrote the opinion, in which Judge Thacker and Judge
Rushing joined.
___________________
ARGUED: Lawson Sadler, WASHINGTON UNIVERSITY SCHOOL OF LAW, St. Louis, Missouri, for Appellant. Caleb Allen Seckman, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. ON BRIEF: Steven
J. Alagna, Supervising Attorney, Andrew R. Hilty,
Student Advocate, Hannah F. Keidan, Student Advocate, Shawn N. Podowski, Student Advocate, Appellate Clinic, WASHINGTON UNIVERSITY SCHOOL
OF LAW, St. Louis, Missouri, for Appellant. John B.
McCuskey, Attorney General, Michael R. Williams,
Solicitor General, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.
RICHARDSON, Circuit Judge:
Alan Hicks was convicted of murder, conspiracy,
and grand larceny in West Virginia in 1988. For his
crimes, he was sentenced to life in prison without the
possibility of parole. In 2021, Hicks filed a federal habeas petition in the Southern District of West Virginia, collaterally attacking the validity of his imprisonment. The district court dismissed his petition because Hicks had failed to exhaust his state remedies
before filing in federal court. On appeal, Hicks contends that he should be excused from this statutory
exhaustion requirement.
3a
The story behind Hicks’s failure to exhaust, however, begins long before his federal habeas petition in
2021. To understand the fight on appeal, we must retrace his steps along a Kafkaesque journey through
West Virginia’s state court system that starts in 1989,
shortly after his conviction, and ends, for our purposes, more than thirty years later in 2025. Along the
way, our journey passes by forgotten motions, improperly appointed judges, and inattentive counsel. At the
end, however, we find that the statutory text of 28
U.S.C. § 2254 requires us to affirm the district court’s
dismissal. So we do.
I. Background
A. Offenses And Direct Review
In November 1986, Alan Hicks was indicted in
West Virginia for murder in the first degree. In early
1988, charges were added for aggravated robbery and
conspiracy to commit murder. In September 1988, he
was convicted of first-degree murder, conspiracy to
commit murder, and grand larceny. The state court
then sentenced Hicks to life imprisonment.
On October 26, 1989, Hicks appealed to the Supreme Court of Appeals of West Virginia. He asserted
that the trial court lacked jurisdiction over his conspiracy charge, that his due process rights were violated
by the prosecutor making unsupported allegations in
his opening statement, and that the judge’s failure to
instruct the jury on self-defense violated his fair trial
rights. He lost his direct appeal in January 1990, and
did not seek review by the Supreme Court of the
United States.
B. Collateral Challenges
Since losing his direct appeal, Hicks has collaterally attacked his conviction in three ways. The subject
4a
of this appeal is his third and most recent attack: his
November 2021 federal habeas petition, brought under 28 U.S.C. § 2254. We start there.
In the district court below, Hicks asserted that his
1988 trial was riddled with half a dozen errors and
constitutional rights violations.1 West Virginia moved
to dismiss Hicks’s claim by arguing that he failed to
exhaust state remedies before bringing his federal habeas petition. See § 2254(b)(1)(A). Hicks admitted that
he had failed to exhaust but countered that he was
nevertheless permitted to bring his federal petition because of § 2254(b)(1)(B), which excuses a petitioner
from satisfying the exhaustion requirement if “there
is an absence of available State corrective process” or
if “circumstances exist that render such process ineffective to protect the rights of the applicant.” The district court sided with West Virginia and dismissed the
petition. At the same time, the district court granted
Hicks a certificate of appealability under 28 U.S.C. §
2253, and Hicks appealed the dismissal decision. It is
this appeal that is before us now.
But to understand Hicks’s contention on appeal
that the district court erred by not excusing him from
the statutory exhaustion requirement, we must take a
detour to understand the “circumstances” that he alleges have “render[ed]” West Virginia’s state postconviction proceedings “ineffective” to protect him. §
2254(b)(1)(B)(ii). This requires us to go over three
1 The errors alleged are not relevant to this appeal but include a
violation of the Double Jeopardy Clause, failure to grant a mistrial, failure to instruct the jury on self- defense, giving an improper malice instruction, failure to give a proper verdict forms
to the jury, and the absence of trial advocacy from his counsel.
5a
decades back in time and explain Hicks’s earlier two
collateral attacks on his conviction in state court.
Hicks’s first collateral attack began in February
1989, shortly after his conviction, when Hicks moved
for a reduced sentence under Rule 35 of the West Virginia Rules of Criminal Procedure. W. Va. R. Crim P.
35. Rule 35(a) allows a West Virginia court to “correct
an illegal sentence at any time,” and Rule 35(b) allows
a sentence reduction “within 120 days after the sentence is imposed . . . or within 120 days after the entry
of mandate by the supreme court of appeals.” Hicks
did not specify which section he was moving under.
But rather than seeking clarification, ruling on the
motion, or any number of options, the West Virginia
trial court did nothing.
After eight years passed by without movement on
Hicks’s motion for a sentence reduction, he launched
his second attack. In November 1997, Hicks petitioned
for postconviction relief and moved to appoint counsel
in state court.2 Instead of moving things along though,
this only triggered a cascade of errors from all involved.
To start, Hicks’s petition and motion were assigned to Judge O.C. Spaulding. The problem? Judge
Spaulding had been the prosecutor in Hicks’s trial
nearly a decade prior. In fact, he had been the “Prosecuting Attorney” in Hicks’s case and delivered the
opening argument. In other words, the judge that
West Virginia assigned to decide whether Hicks’s trial
had been infected by constitutional errors was one of
the main individuals accused of making those errors.
Subsequently, for reasons we can only speculate
2 Hicks’s claims for state postconviction relief were largely simi-
lar to the claims he later brought in his federal habeas petition.
6a
about, “no activity occurred [on Hicks’s petition and
motion] for fifteen (15) years.” J.A. 433. Hicks also
took no steps to force the court to act during that period.
Sometime during those fifteen years, and again
for unknown reasons, the case was reassigned from
Judge Spaulding to Judge J. Robert Leslie. In 2012,
Hicks sent a letter to the court to renew his then-15year-old motion to appoint counsel. In response, Judge
Leslie appointed Shawn Bayliss to be Hicks’s lawyer
in September of that year. Hicks sent several letters
to Bayliss from prison discussing his postconviction
petition and his earlier motion for a sentence reduction. But while Bayliss attempted to secure a copy of
Hicks’s trial transcript and moved to extend filing
deadlines several times, he neglected to respond to
Hicks’s communications. As a result, Hicks filed a
complaint with the State Bar and the West Virginia
Supreme Court concerning Bayliss’s performance. Ultimately, citing struggles to obtain a copy of the transcript, Bayliss moved to be relieved as counsel a year
after he was appointed. Judge Joseph Reeder—who
took the case from Judge Phillip M. Stowers, who took
the case from Judge Leslie—granted Bayliss’s motion.
In September 2013, Judge Reeder appointed C.
Dascoli, Jr. to replace Bayliss as Hicks’s appointed
counsel. From the record, Dascoli does not appear to
have made any filings or taken any action with respect
to Hicks’s case for nearly three years.
In May 2016, Judge Reeder appointed Duane
Rosenlieb to replace Dascoli as Hicks’s appointed
counsel. Rosenlieb promptly failed to abide by a court
order to file Hicks’s amended state postconviction petition by June 21, 2016. His first communication to
7a
Hicks was in November of that year, over half a year
later.
In January 2017, Hicks tried to take matters into
his own hands and moved to relieve Rosenlieb in order
to proceed pro se. At a hearing, Rosenlieb informed the
postconviction relief court that he was having trouble
obtaining Hicks’s trial transcript—the same difficulty
Bayliss had encountered.3 Rosenlieb also claimed that
Hicks was himself an obstacle in the way of moving
his postconviction petition forward because Hicks refused to fill out a so-called Losh list, a tool used in
West Virginia to delineate the grounds for postconviction relief, and rejected Rosenlieb’s proposed strategy
to obtain relief. Judge Reeder relieved Rosenlieb of his
duties but held Hicks’s motion to proceed pro se in
abeyance, reserving the right to appoint new counsel.
In May 2018, Hicks petitioned for a writ of mandamus in the West Virginia Supreme Court, asking
that court to command Judge Reeder to resolve his
Rule 35 motion for a sentence reduction and his postconviction petition, which remained pending after 29
and 21 years, respectively. The West Virginia Supreme Court responded in January 2019 by requiring
Judge Reeder to show cause why the writ should not
issue. In his response to the West Virginia Supreme
Court’s request to show cause, Judge Reeder finally
ruled on Hicks’s Rule 35 motion by, ironically, denying
it on the grounds that it was filed a single day late
back in 1989. As for Hicks’s postconviction relief petition, Judge Reeder explained that he had not acted because Hicks had been “unwilling or unable to
3 During the same hearing, Hicks claimed that he possessed a
print version of the full transcript and agreed to make a copy of
it on the condition that the court waive his copying fees.
8a
cooperate” with his attorneys. J.A. 436. But Judge
Reeder stated that he had, just days prior, appointed
one Carl Hostler to serve as Hicks’s new counsel, so
things were moving along.
In the same January 2019 order that appointed
Hostler as counsel, Judge Reeder also scheduled a status hearing, set a final state-habeas petition deadline,
and promised that the Court would “issue a final decision on the Petition for Writ of Habeas Corpus AdSubjiciendum on or before September 6, 2019.” J.A.
530. None of these occurred. Only two and a half years
later did the Court schedule another status hearing
for Hicks’s case— this time, for July 2022.
The July hearing was then rescheduled to August
due to a scheduling conflict. The August hearing was
then rescheduled to September due to a scheduling
conflict. At the September 2022 status hearing, Hicks
learned for the first time that Hostler had left private
practice entirely and was no longer his attorney. Hicks
was thus assigned yet another attorney—the fifth, for
those counting—Jason Gain.
Between the appointment of Hostler in 2019 and
the appointment of Gain in 2022, Hicks filed his federal habeas petition in the district court below. That
brings us full circle back to the present appeal. As
stated above, the district court dismissed Hicks’s federal habeas petition for failure to exhaust, and he appealed that dismissal to this Court. When Hicks filed
his opening brief in this case in December 2024, “[n]o
further progress ha[d] been made” in resolving his
state postconviction relief case. Op. Br. at 9.
This is ordinarily where a facts section would end,
as we have reached the point where the appeal before
us was docketed—but this is no ordinary case. Hicks’s
9a
oral argument date before this court was set for March
19, 2025. Just before oral argument, West Virginia reassigned Hicks’s state postconviction case from Judge
Reeder to a new judge, Mark Sorsaia. But, incredibly,
Judge Sorsaia had also been one of Hicks’s prosecutors, just like Judge Spaulding. West Virginia 28(j) letter (March 12, 2025). So the case had to be reassigned
yet again.
Shortly after oral argument, the state court finally resolved Hicks’s nearly thirty- year-old postconviction petition “on the merits” by “summarily dismiss[ing]” the case. Hicks 28(j) letter (April 24, 2025).
This determination was made by Judge Stowers,
who— it apparently bears mentioning—did not previously prosecute Hicks. Id.
With the timeline laid out, we now turn to the legal issue in this case.
II. Discussion
To obtain federal habeas relief, a state prisoner
must satisfy the statutory requirements of 28 U.S.C. §
2254. One of those requirements is for the petitioner
to have “exhausted the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(1)(A). In other
words, the state prisoner must first go through all
available state postconviction proceedings. This requirement is one rooted in comity for state courts and
“serves to minimize friction between our federal and
state systems of justice by allowing the State an initial
opportunity to pass upon and correct alleged violations of prisoners’ federal rights.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The exhaustion requirement is excused, however, if either “there is an absence of available State corrective process,” or if “circumstances exist that render such process ineffective
10a
to protect the rights of the applicant.” 28 U.S.C. §§
2254(b)(1)(B)(i)–(ii).
On appeal, Hicks challenges the district court’s
dismissal of his federal habeas petition. He admits
that he has not satisfied the requirement to exhaust
under § 2254(b)(1)(A) but offers two arguments for
why he is statutorily excused from doing so under §
2254(b)(1)(B). First, he contends that the state proceedings were tainted because Judge Spaulding had
served as his prosecutor before presiding over the first
15 years of his postconviction relief proceedings, and
that this structural error rendered the state corrective
process “[un]available.” See § 2254(b)(1)(B)(i). Second,
he contends that West Virginia’s multi-decade delay
in adjudicating his 1997 petition for state postconviction relief shows that the state process is “ineffective
to protect [his] rights.” See § 2254(b)(1)(B)(ii).
We decline to address the first argument because
it was not included in Hicks’s certificate of appealability. We reject the second on account of late-breaking
developments in Hicks’s state postconviction proceedings. We therefore affirm the district court’s dismissal.
A. The Certificate Of Appealability Only
Mentions Delay, Not Bias
To succeed in this appeal, Hicks must prove that
he satisfies § 2254’s statutory requirements. But we
begin with a predicate issue: To appeal the district
court’s resolution of his § 2254 petition in the first
place, Hicks needed to obtain a certificate of appealability (“COA”) from a judge or court.4 COAs are
4 We do not address the unraised question of whether a district
court judge may grant a COA. Compare § 2253(c)(1), with Gonzalez v. Thaler, 565 U.S. 134, 143 n.5 (2012), and Fed. R. App. P.
22(b)(1).
11a
essentially permission slips to appeal, governed by
their own statutory requirements in § 2253. Because
of a defect in his COA, Hicks is limited to one of his
two theories and cannot argue on appeal that the bias
from Judge Spaulding excused his failure to exhaust.
There are three COA requirements. The first, §
2253(c)(1), simply states that a COA is required for a
prisoner to take an appeal in a proceeding under §§
2254 or 2255.5 Without a COA, the court of appeals
lacks jurisdiction to hear the prisoner’s appeal. See
Thaler, 565 U.S. at 142. The second requirement, §
2253(c)(2), sets forth the substantive standard that
the prisoner must meet, mandating that a COA may
issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” The
third requirement, § 2253(c)(3), obligates the judge or
court who grants the COA to “indicate which specific
issue or issues” show that denial.
It is the third requirement that bars Hicks’s argument regarding Judge Spaulding’s involvement. West
Virginia has pointed out that the district court
granted Hicks a COA on account of “the length of delay
in Petitioner’s state proceedings.” J.A. 686. The state
argues that this short explanation of the “specific issue” does not “indicate” a concern with any potential
bias that might taint Hicks’s proceedings from his
prior prosecutor’s involvement. § 2253(c)(3). We agree.
5 These two statutory provisions, §§ 2254 and 2255, govern pris-
oners who are in custody pursuant to a judgment from state or
federal court, respectively. But in addition to being detained pursuant to the judgment of a court, individuals can also be detained
in other ways, such as by executive detention in the hands of the
military. Those individuals may petition for a writ of habeas corpus under § 2241, and the requirements laid out in § 2253 do not
apply to them.
12a
So while we do not condone the mismanagement that
led to Hicks’s case being twice assigned to judges who
were his former prosecutors, we are “precluded from
considering” arguments from Hicks that address issues outside of delay. Lumumba v. Kiser, 116 F.4th
269, 278 n.4 (4th Cir. 2024).6
B. West Virginia’s Postconviction System Is
Not Presently “Ineffective”
That leaves us with Hicks’s second argument that
the extremely long delay in his state postconviction
proceeding renders it “ineffective to protect [his]
rights.” § 2254(b)(1)(B)(ii). Before we get to the merits
of Hicks’s claim, however, we must address another
possible issue with Hicks’s COA.
1. Hicks’s COA does not indicate the constitutional right that is violated by delay, but we
choose to address his delay argument anyway.
The district court dismissed Hicks’s habeas petition for failure to exhaust, which is a dismissal on procedural grounds. It then granted a COA, indicating
that “the length of delay in the Petitioner’s state
6 Hicks also appears to have waived his bias argument by not
raising it below. In his § 2254 petition to the district court, Hicks
provided four grounds for habeas relief, none of which raised the
theory that Judge Spaulding’s involvement in his state postconviction proceeding excused the exhaustion requirement. Hicks’s
response to West Virginia’s motion to dismiss his petition also
failed to raise this theory. “When a party in a civil case”—which
includes habeas cases, see Smith v. Bennett, 365 U.S. 708, 712
(1961)— “fails to raise an argument in the lower court and instead raises it for the first time before us, we may reverse only if
the newly raised argument establishes ‘fundamental error’ or a
denial of fundamental justice.” In re Under Seal, 749 F.3d 276,
285 (4th Cir. 2014). We do not find this standard met, even with
West Virginia’s admittedly derelict conduct.
13a
proceedings” may permit him to excuse his failure.
J.A. 686. Unlike the bias argument regarding Judge
Spaulding, the COA identifies this issue. But this only
identifies that the procedural dismissal was debatable—not that there was a possible denial of a constitutional right. And even when “the district court denies
relief on procedural grounds, the petitioner seeking a
COA must show . . . ‘that jurists of reason would find
it debatable whether the petition states a valid claim
of the denial of a constitutional right,’” Thaler, 565
U.S. at 140–41 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)), and the COA must then “indicate
which specific issue or issues” satisfy that showing. §
2253(c)(3).
Though this means Hicks’s COA is defective as to
his second argument too, the outcome is different from
the first. The COA requirements in § 2253(c)(2) and
(3) are “mandatory,” but they are not “jurisdictional.”
Cox v. Weber, 102 F.4th 663, 673 (4th Cir. 2024) (quoting Thaler, 565 U.S. at 146). The “mandatory” piece
means that “[i]f a party timely raises the COA’s failure
to indicate a constitutional issue, the court of appeals
panel must address the defect.” Thaler, 565 U.S. 146.
This is why we are “precluded from considering”
Hicks’s bias argument—West Virginia timely objected
in its brief. Lumumba, 116 F.4th at 278 n.4. But because the requirements are not “jurisdictional,” we are
not required to raise them on our own. See Thaler, 565
U.S. at 146; see also Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998) (explaining what is
required for jurisdictional defects). When a party does
not object to a mandatory-but-nonjurisdictional defect,
we are given discretion over whether we wish to address it. See United States v. Foote, 784 F.3d 931, 935
n.4 (4th Cir. 2015); Wood v. Milyard, 566 U.S. 463, 466
14a
(2012) (“Our precedent establishes that a court may
consider a statute of limitations or other threshold bar
the State failed to raise in answering a habeas petition.”).
West Virginia has not objected to this second defect in Hicks’s COA concerning his delay argument.
Though we have discretion to raise the defect ourselves, we decline to do so. Given West Virginia’s failure to resolve Hicks’s claim for such an extended duration, comity towards any interest it might have in
being the first to answer Hicks’s claim is unwarranted.
Cf. United States v. Oliver, 878 F.3d 120, 127 (4th Cir.
2017). So “at this late stage, we will not treat this potential defect” as foreclosing Hicks’s delay argument.
Foote, 784 F.3d at 935 n.4.7
7 This is not the only threshold defect in Hicks’s petition that we
choose not to consider—Hicks’s habeas petition was also untimely when filed in the district court.
The statute of limitations—added by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)—gives a state petitioner one year after the conclusion of the petitioner’s direct review process to file a federal habeas petition. 28 U.S.C. §
2244(d)(1). AEDPA, however, was passed on April 24, 1996—
later than when Hicks’s direct review process became final in
1990. For habeas petitioners whose direct review ended before
the passage of AEDPA, their one-year timer starts on the date of
AEDPA’s passage. Wood, 566 U.S. at 468–69. So Hicks had until
April 24, 1997, to file his federal habeas petition— over two decades before he actually filed. Id.
But this one-year deadline is tolled if the petitioner lodges “a
properly filed application for State post-conviction or other collateral review.” § 2244(d)(2). Here, two possible sources of tolling
exist: Hicks’s state postconviction relief application, and his Rule
35 motion for sentence reduction. See Wall v. Kholi, 562 U.S. 545,
555 (2011). Neither help Hicks. He filed his postconviction relief
15a
2. Whether a state’s postconviction process
is “ineffective” is a forward- looking question.
We finally turn to the merits of Hicks’s delay argument. Hicks argues that the district court erred in
dismissing his federal habeas petition for failing to
satisfy the § 2254(b)(1)(A) exhaustion requirement. He
application on November 20, 1997, half a year after the limitations period had run. And though Hicks’s motion for sentence reduction was filed long before the deadline in 1989, the West Virginia Supreme Court held that Hicks’s motion was filed a day late
as a matter of state law. State v. Hicks, 2020 WL 201222, at *4
(W. Va. Jan. 13, 2020). So the petition was not “properly filed.” §
2244(d)(2); see Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)
(“[T]ime limits, no matter their form, are filing conditions.” (quotation omitted)).
West Virginia moved below to dismiss Hicks’s federal habeas petition based on the statute of limitations, but the district court
denied the motion, finding that Hicks’s Rule 35 motion was filed
timely and thus tolled AEDPA’s statute of limitations. This ruling contravened the conclusion of the West Virginia Supreme
Court. But West Virginia has not raised any of this on appeal.
(Continued) And “[b]ecause the one-year statute of limitations is
not jurisdictional, a federal habeas court is not duty-bound to consider the timeliness of a § 2254 petition.” Hill v. Braxton, 277 F.3d
701, 705 (4th Cir. 2002). Though we may have discretion to do so,
we decline to for the same reasons we decline to consider the COA
defect with Hicks’s delay argument—no comity is warranted. Cf.
Oliver, 878 F.3d at 127.
In declining to consider Hicks’s untimely filing, however, we do
not implicitly approve of the district court’s denial of West Virginia’s timeliness motion. It did so only by ignoring an express
decision from the West Virginia Supreme Court issued in this
case, on this question, and on a matter of state law. That is not
how federal courts typically operate. See Murdock v. City of Memphis, 87 U.S. 590, 635 (1874); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 456 (1958).
16a
asserts that he is excused from that requirement under § 2254(b)(1)(B)(ii) on account of West Viginia’s
nearly three-decade delay in resolving his state postconviction petition. We are sympathetic to Hicks’s argument and understand that he has been trapped in a
procedural morass, largely of West Virginia’s making,
for some time. But the plain text of the §
2254(b)(1)(B)(ii) exception requires that we affirm the
district court. See Valladares v. Ray, 130 F.4th 74, 80–
81 (4th Cir. 2025) (“Our inquiry must cease if the statutory language is unambiguous and the statutory
scheme is coherent and consistent.” (quotation omitted)).
The key feature of the statutory text at issue for
our purposes is its tense. “Consistent with normal usage, we . . . look[] to Congress’ choice of verb tense to
ascertain a statute’s temporal reach.” Carr v. United
States, 560 U.S. 438, 448 (2010) (citations omitted).
And “a statute’s ‘undeviating use of the present tense’
[is] a ‘striking indicator’ of its ‘prospective orientation.’” Id. at 449 (quoting Gwaltney of Smithfield, Ltd.
v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59
(1987)) (cleaned up). A statutory provision that
consistently employs the present tense thus takes
account of events and occurrences now and in the
future but “does not include the past.” Id. at 448.
Section 2254(b)(1)(B)(ii) is written in the present
tense. It excuses exhaustion if “circumstances exist
that render such process ineffective to protect the
rights of the applicant.” The exception applies not
when circumstances existed in the past, but when they
“exist” now. Id. (emphasis added). Consistently, the
other exhaustion exception is also written in the present tense, applying when there “is an absence of
available State corrective process.” § 2254(b)(1)(B)(i)
17a
(emphasis added). So Hicks is only excused from exhausting if it appears that West Virginia’s postconviction process is presently ineffective to protect his
rights, regardless of whether they were ineffective before.
Despite the decades of delay that have plagued
Hicks’s case, it no longer appears that West Virginia’s
post-conviction system is ineffective to protect Hicks’s
rights. After oral argument in this case had concluded,
the parties informed us that West Virginia assigned
Hicks’s postconviction case to a judge who was uninvolved with his prosecution, and that the judge resolved the case on its merits. So after much prodding
and way too much time, West Virginia is finally addressing Hicks’s case. Hicks’s postconviction petition—which alleges violations of his federal rights—
must be evaluated fairly under West Virginia’s postconviction laws. See Williams v. Pennsylvania, 579
U.S. 1, 13–14 (2016). That is now being done. And although Hicks so far “has been unable to obtain relief,”
that does not render its system ineffective to protect
his rights. See Farkas v. Butner, 972 F.3d 548, 555–56
(4th Cir. 2020). And in any case, Hicks may still yet
obtain relief on appeal in the state system.
To be sure, past ineffectiveness is not irrelevant
in considering present ineffectiveness. If it appeared
that the underlying causes of West Virginia’s delay between 1997 and 2025 continued to exist such that it
was likely Hicks’s case would again languish for years,
our analysis would be different. But we have no reason
to think that such delay will happen again. There is
no indication that West Virginia’s postconviction process is so generally dilatory that the average petitioner
will suffer extreme delay. Hicks’s situation, as far as
the record shows, is an outlier. So now that there has
18a
been movement in Hicks’s case, we expect it to proceed
as the average petitioner’s case does. West Virginia
has failed him in the past, but we are confident and
hopeful that it will not continue to fail him moving forward. Accordingly, the text of § 2254(b)(1)(B)(ii) does
not permit Hicks to excuse his failure to exhaust. Cf.
Bowles v. Russell, 551 U.S. 205, 212–14 & n.4 (2007)
(noting that even when liberty is on the line, textual
strictures must be adhered to).8
Our conclusion that past delay alone is insufficient to excuse exhaustion aligns with longstanding
habeas precedent and history. “The exhaustion doctrine existed long before its codification.” Rose v.
Lundy, 455 U.S. 509, 515 (1982). It was crafted “as a
matter of comity” to “the state[s].” Id. “[F]irst announced in Ex parte Royall, 117 U.S. 241 (1886),” the
doctrine “is now codified” in AEDPA. O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). But after codification, the Supreme Court has continued to look to preAEDPA common-law applications of the doctrine to resolve modern-day cases. See, e.g., id. at 844–45; Slack,
529 U.S. at 486; Rhines v. Weber, 544 U.S. 269, 276–
77 (2005); Davila v. Davis, 582 U.S. 521, 527 (2017).
But throughout all this history, one fact is striking:
before and after AEDPA “no federal court . . . [has]
8 Absent West Virginia’s last-minute action, many hard ques-
tions would abound. For now, we leave unresolved the extent to
which considerations like length of delay, blame for delay, and
diligence by the petitioner in pursuing his rights factor into
whether the exhaustion requirement has been excused. See Morton v. Dir. Virgin Islands Bureau of Corr., 110 F.4th 595, 601 (3d
Cir. 2024) (exploring these questions); Johnson v. Bauman, 27
F.4th 384, 391 (6th Cir. 2022) (same); Evans v. Wills, 66 F.4th
681, 682 (7th Cir. 2023) (same); Welch v. Lund, 616 F.3d 756, 760
(8th Cir. 2010) (same).
19a
ever excused a state prisoner’s failure to exhaust
merely due to delay in state court proceedings.” Bauman, 27 F.4th at 391. Instead, even after delay, a petitioner has needed to prove that further efforts in
state court would be “futile in the face of state dilatoriness or recalcitrance.” Farmer v. Cir. Ct. of Maryland for Baltimore Cnty., 31 F.3d 219, 223 (4th Cir.
1994).9 It is thus no surprise that AEDPA follows this
historical throughline.
Hicks has shown past delay—decades of it—in his
state postconviction proceeding. What he cannot show,
however, is that the state process is presently ineffective. West Virginia’s postconviction relief system is
now making progress on Hicks’s case with no sign of
future difficulties. So Hicks cannot excuse his failure
to exhaust his state remedies under § 2254(b)(1)(B)(ii).
***
West Virginia gets no credit for its narrow victory
today. Its past treatment of Hicks no doubt offends
basic notions of how a state should treat its prisoners.
The Anglo- American legal tradition has for centuries
recognized the importance of expedient justice: “To no
one will we sell, to none will we deny or delay, right or
justice.” Magna Carta ch. 40 (1215) (emphasis added).
That recognition has not faded over time. We still understand today that “justice too long delayed is justice
9 The Supreme Court has also excused exhaustion where “a state
prisoner’s detention impaired the federal government’s operations,” where “a state prisoner’s detention impeded the administration of justice in federal tribunals,” and where “a state prisoner’s continued detention was detrimental to the federal government’s relationship with a foreign nation.” Bauman, 27 F.4th 384
at 390. But these are unrelated to delay.
20a
denied.” Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16, 1963).
Hicks is not necessarily entitled to freedom. But if
he is to walk free at the end of his state postconviction
proceedings, his freedom should not suffer from further undue delay. If he is to stay in prison, he is nevertheless entitled to know that forthwith.
AFFIRMED
21a
APPENDIX B
FILED: July 23, 2025
UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT
___________________
No. 23-6447 (3:21-cv-00618)
___________________
ALAN LANE HICKS
Petitioner - Appellant
v.
JONATHAN FRAME, Superintendent
Respondent - Appellee
___________________
JUDGMENT
___________________
In accordance with the decision of this court,
the judgment of the district court is affirmed.
This judgment shall take effect upon issuance
of this court's mandate in accordance with Fed. R.
App. P. 41.
/s/ NWAMAKA ANOWI, CLERK
22a
APPENDIX C
___________________
IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF
WEST VIRGINIA
___________________
HUNTINGTON DIVISION
___________________
ALAN LANE HICKS,
Petitioner,
v.
CIVIL ACTION NO. 3:21-0618
DONNIE AMES, Superintendent,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Petitioner Alan
Lane Hicks’s Objections to the Proposed Findings and
Recommendation (“PF&R”) issued by Magistrate
Judge Omar Aboulhosn on November 15, 2022. Pet’s
Objections to the PF&R, ECF No. 41; PF&R, ECF No.
37. The Court has undertaken a thorough review of
the Objections and PF&R, as well as pertinent material found elsewhere in the record. For the reasons set
forth below, the Court DENIES Petitioner's Objections (ECF No. 41) and—consistent with the factual
allegations outlined in this Memorandum Opinion and
Order—ADOPTS
AND
INCORPORATES
23a
HEREIN the PF&R (ECF No. 37). Accordingly, the
Court GRANTS Respondent’s Motion to Dismiss
(ECF No. 28) and DISMISSES this action, without
prejudice to Petitioner’s right to renew the same following exhaustion of state court remedies.
I. BACKGROUND
Petitioner Alan Lane Hicks was charged in the
Putnam County Circuit Court of one count of first-degree murder, one count of aggravated robbery, and one
count of conspiracy to commit murder. Order in the
Putnam Cnty. Cir. Ct., ECF No. 18-3. Following a jury
trial, Petitioner was sentenced on October 25, 1988, to
(1) life imprisonment without the possibility of parole
for first- degree murder, (2) one to five years imprisonment for conspiracy to commit murder, and (3) one to
ten years imprisonment for grand larceny, to run concurrently. Id. Following a lengthy series of proceedings in state court, Petitioner has now filed an application in this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet. Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody, ECF No. 1. The Court outlines the proceedings
leading to the instant Petition below. Pet’s Objections
to PF&R, ECF No. 41.
A. Rule 35 Motion
Petitioner first challenged his sentence on February 23, 1989, when he moved under West Virginia
Rule of Criminal Procedure 35 to reduce his sentence
of life without mercy. Mot. for Reduction of Life Without Mercy Sentence Under Rule 35, ECF No. 18-6.
Having filed the motion pro se, he did not specify
whether he was moving under subsection (a) to correct
an illegally imposed sentence, or subsection (b) to reduce a sentence within 120 days of the sentence being
24a
imposed. Id.; W. Va. R. of Crim. P. 35. Petitioner cited
the following facts in support of the Rule 35 motion:
(1) his lack of a prior criminal record, (2) the trial records allegedly show the jury was without sufficient information to convict Petitioner of first-degree murder
and impose a life sentence, (3) the jury acted illegally
in not considering mitigating factors (including his
lack of a prior criminal record), and (4) that legislative
intent reserves a life without mercy sentence for a different “category” of murderers. Mot. for Reduction of
Life Without Mercy Sentence Under Rule 35 ¶¶ 3-6,
ECF No. 18-6.
The Putnam County Circuit Court did not rule on
Petitioner’s Rule 35 motion until approximately thirty
years later. On March 15, 2013, twenty-four years after filing the Rule 35 motion, Petitioner filed a Petition
for a Writ of Mandamus with the Supreme Court of
Appeals of West Virginia (SCAWV) to, inter alia, compel the circuit court to rule on his Rule 35 Motion. Pet.
for Writ of Mandamus at 1, ECF No. 18-11. On June
4, 2013, the SCAWV summarily declined to grant such
a writ. June 4, 2013 Order, ECF No. 18-12.
Six years later, on May 16, 2018, Petitioner again
filed a petition for a writ of mandamus to, inter alia,
compel a ruling on his Rule 35 motion. Writ of Mandamus, ECF No. 18-14; Rule to Show Cause, ECF No 1813; West Virginia v. Hicks, No. 19-0123, 2020 WL
201222, at *2 (W. Va. Jan. 13, 2020). The SCAWV
granted the petition and issued a Rule to Show Cause
Order on January 10, 2019. Rule to Show Cause, ECF
No 18-13. Eight days later, on January 18, 2019, the
circuit court denied Petitioner’s Rule 35 motion. Order
Denying Rule 35 Mot., ECF No. 18-15. The circuit
court found that it lacked jurisdiction to hear Petitioner’s Rule 35 motion because the motion was filed
25a
121 days after Petitioner’s sentence was imposed, outside of the 120 days provided by Rule 35. Id. ¶ 12.
However, the circuit court stated that even if the motion were timely filed, the court would deny the motion
on the basis that any reduction or modification of the
sentence would “unduly depreciate the seriousness” of
Petitioner’s crimes. Id. at 4. Additionally, the court explained that it had not previously issued a written ruling because the motion was untimely. Id. ¶ 7.
On February 12, 2019, Petitioner filed a notice of
appeal as to this ruling, arguing both that his sentence
was illegal and that it was illegally imposed. Pet. for
Appeal at 7, ECF No. 28-15. The SCAWV issued a
Scheduling Order, in which it instructed that any assignments of error in the appeal “must relate only to
the circuit court’s decision not to reduce the petitioner’s sentence.” Scheduling Order at 1, ECF No. 2816. Petitioner, acting pro se, then filed a Petition for
Appeal citing the same reasons laid out before: that he
was both subject to an illegal sentence and that the
sentence was imposed illegally. Pet. for Appeal, ECF
No. 28-15. In response, the State argued that
Petitioner was improperly challenging the validity of his conviction, and even if he was not, denial of
the Rule 35 motion was proper because the motion was
filed outside of the 120-day period. Resp’s Summ.
Resp., ECF No. 28-17. Petitioner filed a Reply, arguing
that his motion was timely filed and that, moreover,
the State neglected to respond to any assignments of
error laid out in the appeal. Reply to Summ. Resp.,
ECF No. 28-18.
The SCAWV affirmed the denial of Petitioner’s
Rule 35 motion on January 13, 2020. Hicks, 2020 WL
201222, at *4. It construed the motion as arising under
26a
subsection (b) of Rule 35 because it was labelled as a
“Motion for Reduction of Sentence,” and ultimately
sought to reduce Petitioner’s sentence. Id. Because the
motion arose under Rule 35(b), the SCAWV determined that the circuit court had correctly denied it as
untimely. Id. Additionally, denial was proper because
Rule 35 motions are not intended to attack the validity
of sentences—rather, such challenges should be raised
via timely, direct appeals. Id. On April 20, 2020, the
SCAWV denied Petitioner’s Petition for Rehearing on
this matter. April 20, 2020 Order, ECF No. 23-1 at
105. The United States Supreme Court also denied Petitioner’s request for a writ of certiorari. Letter to Ms.
Lindsay Sara See from the U.S. Supreme Ct. Clerk,
ECF No. 28-21.
B. Direct Appeal
On October 26, 1989, six months after filing his
initial Rule 35 motion, Petitioner directly appealed his
sentence to the SCAWV. Pet. for Appeal, ECF No. 283. In this appeal, Petitioner alleged that (1) the trial
court’s refusal to instruct the jury on self-defense deprived him of his right to a fair trial, (2) the trial court
was without jurisdiction to try him for the conspiracy
charge, and (3) the prosecution failed to provide evidence to support allegations made during opening
statements, again depriving him of his right to a fair
trial. Id. The SCAWV summarily denied this appeal
on January 10, 1990. Order by the Supreme Ct. of Appeals, ECF No. 28-4. Petitioner did not file a petition
for certiorari in the United States Supreme Court. Pet.
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by
a Person in State Custody at 2, ECF No. 1.
C. State Habeas Petition
27a
On November 20, 1997—seven years after the denial of his direct appeal and prior to a judgment on his
Rule 35 motion—Petitioner submitted a petition for a
writ of habeas corpus in state court. Pet. Under W. Va.
Code § 53-4A-1, ECF No. 28-6. In the initial petition,
he asserted six grounds warranting habeas relief: (1)
his conviction for murder was foreclosed by collateral
estoppel, as it followed an acquittal for aggravated
robbery; (2) the court refused to grant his request to
give a self-defense instruction; (3) the prosecution
failed to provide evidence for statements made during
his opening statement; (4) the court gave an allegedly
erroneous instruction that malice and intent can be inferred from the use of a deadly weapon; (5) the court
gave an allegedly erroneous instructions on malice
and premeditation; and (6) the court’s failed to issue
an instruction on “mercy” and counsel’s failed to present any mitigating evidence. Pet. for Writ of Habeas
Corpus Ad Subjiciendum, ECF No. 28-5. Petitioner’s
case appears to have been assigned to Judge O.C.
Spaulding, who was a prosecutor in the initial case
against Petitioner. Oct. 24, 1988 Order at 1, ECF No.
18-3 (noting O.C. Spaulding was the prosecuting attorney); Pet. for Writ of Habeas Corpus Ad Subjiciendum, ECF No. 28-5 (contains “Spaulding” written on
the front page); Order Denying Pet’s Mot. for TRO/PI,
ECF No. 36-1 (signed by Judge Spaulding). The case
was reassigned to Judge Joseph Reeder sometime
around 2012. May 24, 2017 Hr’g Tr. 12:19-23, ECF No.
33-5.
During his state habeas proceedings, Petitioner
experienced significant difficulty with both appointed
counsel and with obtaining his case file. Along with his
initial habeas petition, Petitioner had also filed a motion to appoint habeas counsel. Docket, ECF No. 28-8.
28a
In keeping with the pace of Petitioner’s Rule 35 proceedings, this motion was not granted until fifteen
years later, when the court ordered the appointment
of Mr. Shawn D. Bayliss on September 21, 2012. Id.
Mr. Bayliss’s appointment did not solve Petitioner’s
problems, however—Petitioner alleges that Mr. Bayliss never contacted him, though Petitioner sent two
allegedly unanswered letters to Mr. Bayliss inquiring
about the status of his case. Letter to Hon. J. Leslie
from Alan Lane Hicks, ECF No. 36- 1 at 11-12; Letters
to Mr. Bayliss from Alan Lane Hicks, ECF No. 36-1 at
8-9. In a letter to the West Virginia Public Defender’s
Office on July 21, 2013, Mr. Bayliss inquired about a
copy of the trial transcript, as it was apparently absent
in Petitioner’s file with the clerk’s office. Letter from
Shawn D. Bayliss to the W. Va. Pub. Def.’s Office, ECF
No. 31-1 at 10. Accordingly, on January 16, 2013, April
19, 2013, and July 26, 2013, Mr. Bayliss moved to extend Petitioner’s time to file an amended habeas petition. Docket, ECF No. 28-8.
Petitioner filed a complaint with the state bar concerning Mr. Bayliss’s counsel, and on September 5,
2013, Mr. Bayliss moved to be relieved as counsel. May
24, 2017 Hr’g Tr. 4:11-18, ECF No. 33-5. Docket, ECF
No. 28-8. Though the court then appointed Mr. C. Dascoli Jr. as counsel, it does not appear that Mr. Dascoli
submitted any filings in this matter. Docket, ECF No.
28-8. Three years later, on April 5, 2016, Petitioner
moved for a status conference. Id. On May 3, 2016, the
Court appointed Mr. Rosenlieb to represent Petitioner
and instructed that any amended petition should be
filed by June 21, 2016. Id. Petitioner alleges he did not
hear from Mr. Rosenlieb for seven months, after which
Mr. Rosenlieb contacted Petitioner and asked Petitioner to fill out and return a Losh list. Letter to J.
29a
Reeder from Alan Lane Hicks, ECF No. 36-1 at 22-23;
Letter from Duane Rosenlieb to Alan Hicks, ECF No.
31-1 at 11. Petitioner refused to fill out the Losh list.
Pet’s Objections to PF&R at 2, ECF No. 41.
On January 20, 2017, Petitioner, acting pro se,
filed an Amended Habeas Petition. Pet. Under W. Va.
Code § 53-4A-1 for Writ of Habeas Corpus, ECF No.
28-6; Mem. of L. in Supp. of Am. Pet. for Writ of Habeas Corpus Ad-Subjiciendum, ECF No. 28-7. The
Amended Petition listed six grounds for relief, four of
which were the same as those on his original 1997 habeas petition. Am. Pet. for Writ of Habeas Corpus Ad
Subjiciendum, ECF No. 28-6. Grounds five and six differed from the original petition, however. Mem. in
Supp. of Pet’s Am. Pet. for Writ of Habeas Corpus Ad
Subjiciendum at iv, ECF No. 28-7. Instead of alleging
that the court erroneously instructed the jury on malice and premeditation, ground five was premised on
the court’s failure to provide verdict forms distinguishing the prosecution’s theory of murder. Id. Instead of
alleging the court’s failure to directly instruct on
“mercy” and counsel’s failure to present mitigating evidence, ground six instead alleged three specific bases
for ineffective assistance of counsel: counsel’s failure
to object to an unconstitutional malice instruction,
counsel’s failure to object to the prosecution’s closing
argument, counsel’s failure to object to a remark about
evidence, and failing to offer an instruction as to parole eligibility. Id.
Shortly after filing the Amended Petition, Petitioner once again moved to relieve appointed counsel
and proceed pro se. Mot. to Remove Appointed Counsel and Proceed Pro Se, ECF No. 33- 4. In this motion,
Petitioner alleged that he had only received one letter
from Mr. Rosenlieb since his appointment. Id. ¶ 3.
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Petitioner additionally alleged that though the order
appointing Mr. Rosenlieb as counsel instructed that
an amended petition should be filed by June 26, 2016,
no petition had been filed as of January 20, 2017,
when Petitioner finally filed his amended petition pro
se. Id. Additionally, Petitioner notes that he was not
aware of counsel requesting any extensions on filing
his amended petition. Id.
On May 24, 2017, the circuit court held a hearing
on this motion. Hr’g Tr., ECF No. 33-5. During the
hearing, Mr. Rosenlieb expressed the same difficulty
obtaining the court file as Mr. Bayliss—Mr. Rosenlieb
reported that he had not been able to obtain a certified
copy of proceeding from the clerk of the circuit court,
as “only a box full of court reporter notes” could be located in relation to Petitioner’s case. Id. 7:9-11. Mr.
Rosenlieb also noted that Petitioner objected to (or
perhaps was offended by) his request to fill out and
send a Losh list. Id. 7:22-24, 8:1-5, 8:17-18. Additionally, Mr. Rosenlieb suggested that Petitioner could
seek to get his case dismissed on the basis that the
clerk’s office did not have an official transcript of his
trial. Id. 9:9-11. However, Petitioner rejected this proposal, alleging that he had “a signed, sealed copy of the
original transcript” in his possession and that “there
are issues that not only are going to require my case
to be reversed, they’re going to require it to be dismissed”. Id. 9:15-19. Petitioner argued he did not want
the case to be dismissed because of a lack of a transcript; rather, he wanted it “to be dismissed because of
the transcript.” Id. 9:19-21 (emphasis added).
During this hearing, Petitioner also claimed he
had possession of almost his entire record, including
stamped versions of subpoenas for every witness, the
pretrial police report, the postmortem examination,
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the indictment and summons from November 1986, as
well as orders for warrants and for transport. Id. 10:313, 10:15-18. He noted that after his conviction, he had
successfully moved to obtain the records, and the accompanying order stated he could obtain “all” of these
records. Id. 11:3-6.
Finally, Mr. Rosenlieb stated that he did not think
Petitioner would have the ability to represent himself,
even if he were allowed to have co-counsel. Id. 11:1823. Petitioner then inquired about the pending Rule
35 motion, noting it needed to be resolved prior to resolution of his state habeas. Id. 14:1-12. Petitioner also
agreed to make his copy of the record available, so long
as the court issued an order allowing him to make copies without payment. Id. 15:17-23. The court agreed to
take these matters under advisement and issue an order. Id. 16:1-5.
In an order filed on May 30, 2017, Judge Reeder
held Petitioner’s motion to proceed pro se in abeyance
but relieved Mr. Rosenlieb as counsel. May 30, 2017
Order, ECF No. 33-6. Additionally, Judge Reeder
noted that (1) Petitioner wished to serve as co-counsel
with any attorney appointed in the future, and (2) Petitioner was willing to copy the record if the prosecuting attorney had difficulty obtaining it, as long as the
court first issued an order waiving copying fees. Id.
Shortly thereafter, on July 17, 2017, Petitioner moved
to prepare the transcripts for the May 24, 2017 hearing. Docket, ECF No. 28-8. These transcripts were not
filed until January 17, 2019, almost two years later.
Id.
On January 18, 2019, the day after the transcripts
were filed, the court appointed Carl Hostler as counsel
and set a status hearing on February 28, 2019, a final
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habeas petition deadline of July 5, 2019, a hearing on
the final petition on August 16, 2019, and a deadline
for the final ruling on September 6, 2019. Jan. 18,
2019 Order, ECF No. 33-2. Accordingly, the court held
a video conference on February 28, 2019 in which it
decided to proceed with the original deadlines set out
in the January 18, 2019 Order, unless the SCAWV issued an order enjoining it from proceeding due to the
pending appeal of Petitioner’s Rule 35 motion. March
19, 2019 Order, ECF No. 33-3. On March 13, 2019, Petitioner allegedly sent Mr. Hostler a draft of a motion
to recuse Prosecutor Mark Sorsaia, as Mr. Sorsaia had
been involved in the trial of Petitioner’s co-defendant
in September 1988. Letter to Carl Hostler from Alan
Hicks, ECF No. 41-1. Mr. Hostler, however, never filed
this motion. Pet’s Objections to PF&R at 5, ECF No.
41.
Sometime between his appointment and July 8,
2019, Mr. Hostler also visited Petitioner and was allegedly “extremely upset that the Petitioner refused to
hand over his entire file to a man he had just met.”
Pet’s Reply and Objection to Resp’s Mot. to Dismiss for
Failure to Exhaust State Remedies at 5, ECF No. 31.
Accordingly, on July 8, 2019, Mr. Hostler filed for an
additional thirty days to file a final habeas petition,
noting that the clerk of the Putnam County Circuit
Court did not have Petitioner’s trial transcript. Mot.
by Alan Hicks for Another 30 Days in Which to File an
Am. Habeas Pet., ECF No. 33-7. In this motion, Mr.
Hostler noted that he believed the West Virginia Public Defenders’ Service had the trial transcript and that
counsel would make arrangements with them as soon
as possible. Id.
It is not clear what happened during the resulting
three-year period. However, on July 21, 2022, the
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circuit court rescheduled a hearing set for August 16,
2022 due to a scheduling conflict, later setting it for
September 14, 2022. July 21, 2022 Order, ECF No. 338; Pet’s Surreply to Resp’s Reply in Supp. of Resp’s
Mot. to Dismiss for Failure to Exhaust State Remedies
at 5, ECF No. 36. At this hearing, Petitioner was informed that Mr. Hostler was no longer in private practice and that Jason T. Gain would represent Petitioner
instead. Pet’s Surreply to Resp’s Reply in Supp. of
Resp’s Mot. to Dismiss for Failure to Exhaust State
Remedies at 5, ECF No. 36. Petitioner also moved to
recuse Prosecutor Sorsaia. Mot. for Recusal of Prosecutor Mark A. Sorsaia, ECF No. 36-1 at 17.
The Court has not received any further information as to the status of these hearings or Petitioner’s motion to recuse Mr. Sorsaia. However, Petitioner has since filed an exhibit with the Court in
which his new counsel, Mr. Gain, describes similar difficulty accessing Petitioner’s file— in a letter to Petitioner, Mr. Gain cites a motion by Respondent to compel Petitioner to provide a copy of the transcript and
notes that he has only been able to view Petitioner’s
habeas petition. Letter from Jason Gain to Alan Hicks,
ECF No. 43-1. According to the letter, the Putnam
County Circuit Court set a hearing on the motion to
compel for January 13, 2023. Id. Mr. Gain also proposes scanning Petitioner’s copy of the file at the
prison, though Petitioner alleges that the administration had failed to provide a proper process to do so.
Pet’s Objections to PF&R at 9, ECF No. 41.
D. Writs of Mandamus
Petitioner filed two writs of mandamus, relating
to both his Rule 35 Motion and his state habeas proceedings. In the first writ of mandamus, filed on
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March 13, 2013, Petitioner sought to compel the court
to appoint a “competent” attorney to represent him
and allow for prepaid phone service with his attorney,
schedule a hearing on his Rule 35 motion, and produce
an investigative report and grand jury proceedings.
Pet. for a Writ of Mandamus, ECF No. 28-10. Petitioner also presented the following questions:
1. Does the failure to produce the Investigation Report of Florida Detective P.L. Lingo,
and the Grand Jury Transcripts violate
state and federal constitutional rights to
due process of law?;
2. Does the failure to adjudicate a Motion,
filed under Rule 35 of the Rules of Criminal
Procedure, violate Petitioner’s state and
federal constitutional rights to due process
of law?; and
3. Is the Putnam County Circuit Court violating Petitioner’s state and federal constitutional rights to due process of law by not responding to a correspondence requesting a
hearing on a Rule 35 Motion and informing
the Court that counsel appointed to amend
his Petition for Habeas Corpus is not responding to communications from the Petitioner?
Id. On March 27, 2013, the SCAWV directed the
Putnam County Circuit Court to respond to the petition by April 26, 2013. Scheduling Order, ECF No. 1810. It is not clear whether the circuit court ever responded. Nonetheless, on June 4, 2013, the SCAWV
refused to issue the requested writ. Order, ECF No.
18-12.
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Six years later, on May 16, 2018, Petitioner filed
another Petition for a Writ of Mandamus. ECF No. 2812. In it, he asked the SCAWV to compel the circuit
court to take action on both his Rule 35 motion and his
state habeas petition. Id. He also presented the following questions:
1. Does the failure to produce a docket sheet
violate state and federal constitutional
rights to due process of law?
2. Does the failure to adjudicate a Rule 35 Motion violate petitioner’s state and federal
constitutional rights to due process of law?
3. Does the failure to hold a hearing or rule on
petitioner’s Habeas filed in November of
1997 violate petitioner’s state and federal
constitutional rights?
4. Is the Putnam County Circuit Court violating state and federal constitutional rights
to due process by not transcribing the court
reporter’s shorthand notes after it was revealed that, with the exception of those
notes, the file in this case is missing?
Id. The SCAWV issued a rule to show cause requiring the Putnam County Circuit Court to show why
a writ should not be awarded against it. Rule to Show
Cause, ECF No. 18-13. In this order, however, the
SCAWV noted that the issue could be mooted by (1)
issuing a ruling on Petitioner’s Rule 35 Motion; and (2)
ruling on Petitioner’s motion to proceed pro se and if
granted, ruling on the pending state habeas petition.
Id.
On January 23, 2019, Judge Reeder responded to
Petitioner’s petition for a writ of mandamus and answered the four questions presented. Resp.’s Resp. to
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Rule to Show Cause, ECF No. 28-13. He first noted
that Petitioner’s Rule 35 Motion had since been ruled
on, so that issue was moot. Id. at 6. He next noted “Petitioner has been afforded the assistance of multiple
lawyers” but “has been unwilling or unable to cooperate” with them. Id. However, Judge Reeder argued
any issue as to counsel was moot, because the circuit
court had set a briefing schedule on Petitioner’s habeas petition and appointed Carol Hostler as counsel.
Id. On February 4, 2019, the SCAWV denied this Petitioner’s request for a writ of mandamus as moot. Dismissal Order, ECF No. 28-14.
E. Federal Habeas Petition
Petitioner, acting pro se, filed the instant petition
under 28 U.S.C. § 2254 on November 24, 2021. ECF
No. 1. In his initial petition and the supporting memorandum, Petitioner asserts the same grounds for relief as those listed in his amended state habeas petition, with the exception that he does not claim ineffective assistance of counsel via failure to offer an instruction on parole eligibility. Id.; Mem. of L. in Supp.
of Pet. for Writ of Habeas Corpus Ad-Subjiciendum,
ECF No. 15. On November 30, 2021, Magistrate Judge
Aboulhosn issued an order directing Respondent to file
a limited response by January 28, 2022, as to the timeliness of the petition and attach any records pertinent
to such a determination. Nov. 30, 2021 Order, ECF No.
5. Shortly thereafter, on December 9, 2021, Petitioner
moved for a temporary restraining order to enjoin Respondent from (1) removing word processor from his
cell or ordering it sent out of the facility; (2) refusing
to prevent Petitioner from purchasing printer cartridges; and (3) refusing to allow Petitioner’s word processor to be sent out for service and returned. Mot. for
TRO/Preliminary Injunction with Supp. Mem. of L.,
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ECF No. 7. In his Response, Respondent contends that
a temporary restraining order was not warranted, noting that Petitioner was still able to access computers
in the library, operational procedures at the prison
were entitled to deference, and Petitioner had not met
the standard set forth for preliminary injunctions.
Resp’s Resp. in Opp. to Pet’s Mot. for TRO/Preliminary
Injunction, ECF No. 11.
On January 6, 2022, Respondent asked that the
deadline for his response as to timeliness be extended
to February 28, 2022. Mot. for Extension of Time to
File Resp., ECF No. 13. This motion was granted on
January 7, 2022. ECF No. 14. On February 15, 2022,
Respondent moved to dismiss the petition with prejudice for untimeliness and filed his limited response as
to timeliness. Resp’s Mot. to Dismiss with Prejudice,
ECF No. 18; Resp’s Ltd. Resp. Re. Timeliness and
Mem. of L. in Supp. Mot. to Dismiss for Untimeliness,
ECF No. 19. The Court then allowed Petitioner until
April 28, 2022 to respond. Feb. 15, 2022 Order and Notice, ECF No. 20 (directing Petitioner to respond by
March 28, 2022); Pet.’s Mot. for Extension of Time,
ECF No. 21 (asking the Court to extend the deadline
for a response to April 28, 2022); March 21, 2022 Order, ECF No. 22 (granting Petitioner’s request for an
extension of time). On April 22, 2022, Petitioner filed
his response to Respondent’s Motion to Dismiss for
Untimeliness and limited response as to timeliness.
Pet’s Reply to Resp’s Ltd. Resp. Re. Timeliness and
Resp’s Mot. to Dismiss, ECF No. 23. On May 5, 2022,
Magistrate Judge Aboulhosn submitted proposed findings and recommendations, recommending that the
court deny Petitioner’s motion for a temporary restraining order, deny Respondent’s motion to dismiss
for untimeliness, and refer the matter back to him for
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further proceedings. PF&R, ECF No. 24. No objections
were filed, and the Court adopted these recommendations via a memorandum opinion and order entered on
May 24, 2022. Mem. Op. and Order, ECF No. 26.
Two months later, on July 20, 2022, Respondent
moved to dismiss the petition for failure to exhaust
state remedies. Resp’s Mot. to Dismiss for Failure to
Exhaust State Remedies, ECF No. 28. In its motion to
dismiss, Respondent argues that Petitioner has only
exhausted the three grounds for relief he raised in his
direct appeal. Resp’s Mem. of Law. Supp. Mot. to Dismiss for Failure to Exhaust State Remedies at 10,
ECF No. 29. Because Petitioner’s federal habeas petition raises more than these three grounds for relief, it
should be dismissed or at least stayed and held in
abeyance pending resolution of state habeas proceedings. Id. at 14. On August 8, 2022, Petitioner responded to Respondent’s motion to dismiss—in his Response, Petitioner presents a factual background and
criticizes actions taken by Judge Reeder during the
state habeas proceedings, arguing that exhaustion
should be waived because the circuit court will not be
able to rule in a timely or proper manner. Pet.’s Reply
and Objection to Resp.’s Mot. to Dismiss for Failure to
Exhaust State Remedies at 2-6, ECF No. 31. Petitioner additionally alleges that the last three years of
proceedings evidence an intentional delay on part of
the state court. Id. at 6.
On August 15, 2022, Respondent filed its Reply,
arguing that any length of delay should be calculated
from the date of Petitioner’s Amended Petition (January 20, 2017) rather than the date of his initial Petition (November 20, 1997). Reply in Supp. of Resp’s
Mot. to Dismiss for Failure to Exhaust State Remedies
at 2-3, ECF No. 33. Respondent further contends that
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Petitioner was largely responsible for any post-2017
delay and lists actions taken by the state court in Petitioner’s proceedings since that time. Id. at 4-8. Finally, Respondent argues that because the state court
was making meaningful progress towards a resolution
of Petitioner’s state habeas proceedings, this was not
“an extreme case” in which exhaustion should be excused. Id. at 9-10.
Petitioner was granted leave to file a Surreply, in
which he (1) reasserts his double jeopardy concerns;
(2) contends that any delay should be calculated as to
the original filing of his petition; (3) seems to retract a
previous claim that the prosecutor’s office admitted to
having a court reporter’s shorthand notes; and (4) argues that he is not responsible for any delay, as he allegedly made known that he did not intend to file another amended habeas after the amended petition
filed in 2017. Pet.’s Surreply to Resp’s Reply in Supp.
of Resp’s Mot. to Dismiss for Failure to Exhaust State
Remedies at 5-6, ECF No. 36. Additionally, Petitioner
complains of the court’s inability to provide him with
a complete copy of his record and describes a series of
infractions allegedly committed by Judge Reeder. Id.
at 7. Finally, Petitioner notes that his appointed attorney, Mr. Hostler, was no longer in private practice and
that another attorney would need to be appointed. Id.
On November 15, 2022, Magistrate Judge
Aboulhosn submitted proposed findings and recommendation as to Respondent’s Motion to Dismiss for
Failure to Exhaust State Remedies. ECF No. 37. In
the PF&R, Magistrate Judge Aboulhosn undertakes
an extensive review of the entire case record, ultimately proposing that (1) the instant petition contains
a mix of exhausted and unexhausted claims; (2) the
length of delay should be calculated as to the filing of
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Petitioner’s initial petition on November 20, 1997; (3)
state proceedings have been reactivated; and (4) the
majority of the delay is attributable to the circuit
court’s failure to manage its docket, though Petitioner
bears a small amount of responsibility due to his litigation decisions refusal to work with appointed counsel. Id. Because state proceedings had been reactivated, Magistrate Judge Aboulhosn recommended
that the Court “stay its hand” and grant Respondent’s
motion to dismiss. Id. at 35-36. Additionally, Magistrate Judge Aboulhosn recommended that the Court
decline to stay the instant petition and hold federal
proceedings in abeyance pending a resolution in state
court, as when state proceedings conclude, Petitioner
will still have a full year to file a federal habeas petition. Id. at 38-39. Petitioner filed five objections to the
PF&R, later moving for leave to supplement these objections, which the Court granted. Pet’s Objections to
Proposed Findings and Recommendations, ECF No.
41; Mot. for Leave of Court to Amend by Supp. Pet’s
Objections to PF&R, ECF No. 43. The Court addresses
each of these objections below.
II. LEGAL STANDARD
A. Rule 12(b)(6) Motions
Courts apply the standard set forth in Federal
Rule of Civil Procedure 12(b)(6) to motions to dismiss
in § 2254 proceedings. Walker v. True, 399 F.3d 315,
319 n.1 (4th Cir. 2005). To survive a motion to dismiss,
a complaint must contain “a short and plain statement
of the claim showing [the plaintiff] is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). While the facts alleged in the
complaint need not be probable, the statement must
contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550
41a
U.S. 544, 570 (2007). A claim has facial plausibility
when “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In
considering the plausibility of a plaintiff’s claim, the
Court accepts all factual allegations in the complaint
as true. Id. Still, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation omitted).
Determining whether a complaint states a plausible claim is a “context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense.” Id. at 679. If the court finds from its
analysis that “the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’— ‘that the pleader is entitled to relief.’” Id.
(quoting, in part, Fed. R. Civ. P. 8(a)(2)). Nonetheless,
a plaintiff need not show that success is probable to
withstand a motion to dismiss. Twombly, 550 U.S. at
556 (“[A] well-pleaded complaint may proceed even if
it strikes a savvy judge that actual proof of those facts
is improbable, and that a recovery is very remote and
unlikely.”). Finally, where a party is proceeding pro se,
the Court will liberally construe his pleadings and objections. See Estelle v. Gamble, 429 U.S. 97, 106
(1976).
B. Objections to PF&R
While courts possess the wide discretion to “accept, reject, or modify, in whole or in part, the findings
or recommendations” of the Magistrate Judge, they
must conduct a de novo review of those portions of the
Magistrate Judge’s findings “to which objection is
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made.” 28 U.S.C. § 636(b)(1)(C). In keeping, courts
need not conduct a review of factual and legal conclusions to which a party does not object. Thomas v. Arn,
474 U.S. 140, 150 (1985). Nor are they tasked with
conducting de novo review of “general and conclusory”
objections—rather, objections must raise specific errors in the PF&R. McPherson v. Astrue, 605 F. Supp.
2d 744, 749 (S.D.W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)) (reasoning that
“vague objections to the magistrate judge’s findings
prevents the district court from focusing on disputed
issues and thus renders the initial referral to the magistrate judge useless”). With this framework in mind,
the Court turns to a consideration of Mr. Hicks’s pending objections.
III. DISCUSSION
A. Petitioner’s Objections to the PF&R
Petitioner’s objections relate to both findings of
fact and legal conclusions as set forth in the PF&R. As
laid out, the Court need not review any legal or factual
conclusions to which Petitioner does not object,
Thomas, 474 U.S. at 150—however, because Petitioner is proceeding pro se, the Court will liberally construe any strictly factual objections and reexamine the
legal conclusions in light of them. Gamble, 429 U.S. at
106. The Court, therefore, begins by addressing each
objection in turn.
1. Delay attributable due to lack of filing
First, Petitioner objects to the following finding:
[i]n consideration of the delay occurring up until
the appointment of Mr. Rosenlieb as habeas counsel
(May 3, 2016), the undersigned finds that the majority
of the delay is attributable to the State. Since the date
of Mr. Rosenlieb’s appointment as counsel, however, it
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appears that Petitioner has attributed to the delay by
being uncooperative with counsel, focusing his efforts
upon his Rule 35 Motion, and failing to file motions or
a final Amended Habeas Petition within habeas proceedings in efforts to move the proceedings forward.
PF&R at 35, ECF No. 37. Namely, Petitioner objects to the finding that any amount of the post- 2016
delay should be attributed to him, especially insofar as
it is premised on his activities in Rule 35 proceedings.
Pet.’s Objections to PF&R at 2-5, ECF No. 41. Petitioner argues that because he was under the impression that a resolution of his Rule 35 motion had to predate a resolution of his state habeas proceedings, any
action to resolve the Rule 35 motion should not count
against him. Id. at 4. Finally, Petitioner argues that
any delay during the time he was represented by Mr.
Rosenlieb and Mr. Hostler should not be attributed to
him, as the State was unable to supply either of these
counsel with the record.10 Id. at 4-5.
The Court agrees with the proposed finding that
the vast majority of delay is attributable to the State,
though Petitioner is responsible for at least a small
fraction of delay during the time that he was represented by Mr. Rosenlieb. Delay may also be attributable to a petitioner where the petitioner makes a litigation decision that stalls proceedings. Peterson v. Ames,
No. 3:19-0126, 2020 WL 2114568, at *6 (S.D.W. Va.
10 Petitioner also objects to any suggestion in the PF&R that he
received more than one correspondence from Mr. Rosenlieb. Pet.’s
Objections to PF&R at 2, ECF No. 41. While the PF&R notes that
Petitioner received “additional correspondence” beyond the November 14, 2016, letter from Mr. Rosenlieb, it appears that Petitioner received this letter, and this letter only, from Mr. Rosenlieb. PF&R at 18 n.3, ECF No. 37. The Court takes this into account in considering the other objections.
44a
May 4, 2020) (finding that “some of the delay” was attributable to a petitioner due to his decision to move
for a new trial). As an initial matter, the Court does
not discount the role the State has played in delaying
proceedings. However, whether Petitioner meant to or
not, his litigation decisions with respect to the Rule 35
motion did cause some delay. While Petitioner expressed to the circuit court a desire to “have [the Rule
35 motion] out of the way, whether . . . in [his] favor or
not” so that he could “move that forward to another
court,” desire alone is not enough to shift the burden
of delay. May 24, 2017 Hr’g Tr. 14:10-12, ECF No. 335. As reflected in the PF&R, Petitioner’s litigation decisions with regard to both the Rule 35 motion and his
habeas petition did contribute to the delay in his habeas proceedings.
Further, as discussed during the May 24, 2017
hearing, Petitioner was unwilling to explore an alternative approach to reducing his sentence—that is, by
seeking to have his case dismissed due to the lack of a
trial transcript. May 24, 2017 Hr’g Tr.9:19-21, ECF
No. 33-5. Throughout the lifespan of this case, Petitioner has expressed a desire to steer the direction of
his proceedings.
Mot. to Remove Appointed Counsel and Proceed
Pro Se, ECF No. 33-4. No court has denied him this
ability. However, in making certain litigation decisions and pursuing his preferred theory of the case—
that is, obtaining a sentence reduction because of the
transcript, rather than the lack thereof—Petitioner
has contributed to the delay in his case.
Regarding Petitioner’s alleged lack of cooperation
with counsel, this Court has found a delay was partially attributable to a petitioner where he
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“consistently acted without regard to his attorneys
(e.g., by filing pro se motions while represented) and
asked the circuit court judge several times to permit
him to proceed pro se, while other times requesting
that habeas counsel be appointed.” Harper v. Ballard,
No. 3:12-00653, 2013 WL 285412, at *8 (S.D.W. Va.
Jan. 24, 2013). The Court understands that Petitioner
has had a frustrating experience with counsel. However, the record supports a finding that Petitioner has
made it more difficult for counsel to represent him
since the appointment of Mr. Rosenlieb.
Take, for example, Petitioner’s refusal to return
the requested Losh list to Mr. Rosenlieb or to come to
an agreement as to how to supply what he had of the
record to Mr. Hostler. May 24, 2017 Hr’g Tr. 7:22-24,
8:1-5, 8:17-18, ECF No.33-5; Pet.’s Reply and Objection to Resp.’s Mot. to Dismiss for Failure to Exhaust
State Remedies at 5, ECF No. 31. Petitioner alleges
that he did not complete the Losh list because he “believed Mr. Rosenlieb did not possess the case file.”
Pet’s Objections to PF&R at 2, ECF No. 41. Yet two
pages after acknowledging this belief, Petitioner criticizes Mr. Rosenlieb for not telling Petitioner as such
in his November 14, 2016 letter. Id. at 4. Petitioner
cannot have it both ways—he cannot feign ignorance
as to the status of his case file and refuse to take a
helpful action, filling out the Losh list, based on the
knowledge that his case file was missing.
Petitioner also could have remedied his counsel’s
issues obtaining the record. He argues as to his willingness to provide the documents he possessed to the
State. Objections to PF&R at 3, ECF No. 41. However,
he does not appear to extend this same courtesy to his
own counsel. Without diminishing the State’s role in
misplacing Petitioner’s records, the Court cannot
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ignore that Petitioner was unwilling to supply his own
counsel with crucial, otherwise unavailable files in his
possession. Petitioner also argues that the State
should bear the totality of delay because the circuit
court “could have prevented this problem” by issuing
an order allowing him to copy his file. Id. at 5. Yet this
argument can easily be turned around—delay due to
the lack of a record could have been easily remedied
by Petitioner handing his case file to Mr. Hostler or
informing Mr. Rosenlieb that he had key documents in
his possession.
Finally, Petitioner argues that though the PF&R
asserts that there was no action in Petitioner’s habeas
proceedings between May 30, 2017 and January 19,
2019, Petitioner had filed a Motion for Oral Argument
and Hearing on His Rule 35 Motion on June 13, 2017
and a Motion to Prepare Transcripts on July 13, 2017.
Pet’s Objections to PF&R at 3, ECF No. 41. However,
Petitioner fails to inform the Court how these filings
relate to his habeas, not his Rule 35, proceedings. And
even if these filings did qualify as actions in his habeas
proceedings, they would do little to change the thrust
of the proposed finding. That is, under the more generous view, Petitioner would have taken no actions in
his habeas proceedings from July 13, 2017 rather than
May 30, 2017. The resulting delay is still somewhat
attributable to Petitioner, as he took no other action
for over a year-and-a-half to move his case along.
For these reasons, the Court finds in keeping with
the PF&R. While the majority of the delay is attributable to the State, Petitioner has contributed to the delay through his own litigation decisions, unwillingness
to work with counsel to share necessary files, and failing to move his habeas proceedings along between
July 13, 2017 and January 19, 2019.
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2. Whether Petitioner “sat on his rights”
Second, Petitioner objects to the following finding:
the record reveals long periods of time where
there were no filings by Petitioner or his counsel. Although the Circuit Court is ultimately responsible for
managing its docket, a petitioner cannot sit on his
rights and then expect to benefit from his lack of diligence. The Circuit Court had a history of acting with
reasonable promptness in addressing motions filed by
Petitioner, yet Petitioner often waited years before
complaining that he was dissatisfied with counsel or
any delay. If Petitioner was either dissatisfied with
counsel, or did not consent to the delay, Petitioner
should have immediately notified the Circuit Court of
such and requested action by the Circuit Court.
PF&R at 34, ECF No. 37. Namely, Petitioner argues that he did not sit on his rights—rather, he alleges his oral motion for a hearing on his Rule 35 motion, oral request for an order waiving copying fees,
and written motion to prepare transcripts constitute
requests for action from the circuit court. Pet’s Objections to PF&R at 6, ECF No. 41. Petitioner also alleges
that he did not want to complain about Mr. Hostler’s
performance, as an order by Judge Reeder had previously accused Petitioner of being “unable to work with
counsel.” Id. at 7. Finally, he argues that the State
should bear the total burden of delay, as it required
Petitioner to supply his own record. Id. at 8.
Many of these arguments are the same as those
addressed in Objection 1, discussed in Section III.A.1.,
supra. For example, as to the frequency of filings, Petitioner has not pointed to any filings relating to his habeas case made between July 13, 2017 and January
19, 2019, which still constitutes a period in which
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Petitioner did not seek to move proceedings along. As
to the loss of Petitioner’s file, the Court reiterates that
Petitioner did not take any steps to mitigate this problem for his own counsel, further contributing to the delay. And while Petitioner may have hesitated to complain about Mr. Hostler’s performance in light of
Judge Reeder’s comments, such hesitation does not tip
the scales of attributable delay. Regardless of whether
Petitioner was concerned about angering Judge
Reeder, his decision not to seek alternate counsel, or
even find a way to more effectively work with Mr.
Hostler, was just that—his decision.
Finally, Petitioner outlines instances in which he
informed the circuit court that he was unhappy with
counsel, specifically with Mr. Bayliss and Mr. Dascoli.
Id. at 7. The PF&R does not attribute delay to Petitioner during this time period. Rather, as seen in the
passage highlighted in Objection 1, the PF&R proposes that only delay following Mr. Rosenlieb’s appointment is attributable, in part, to Petitioner. PF&R
at 35, ECF No. 37. As such, Petitioner’s experiences
with Mr. Bayliss and Mr. Dascoli are not relevant to
the instant analysis.
3. Support for the allegation that the prosecutor
blocked relief
Third, Petitioner objects to the PF&R’s finding
that there are no facts alleged “to support Petitioner’s
conclusory claim that the prosecutor ‘blocked relief.’”
PF&R at 21 n.4, ECF No. 37. Petitioner argues that he
did provide such a factual basis, citing (1) his initial
Petition for Writ of Habeas Corpus Ad Subjiciendum
with “Spaulding” written on it; and (2) an order denying his Motion for Temporary Restraining Order/Preliminary Injunction, filed alongside his Petition for
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Writ of Habeas Corpus Ad Subjiciendum, that was
signed by Judge O.C. Spaulding. Pet’s Objections to
PF&R at 8, ECF No. 41 (citing ECF Nos. 28-5 and 361).
The record supports Petitioner’s contention that
his habeas case was assigned to Judge O.C. Spaulding,
the individual who had prosecuted Petitioner’s initial
charges. See ECF Nos. 28-5, 36- 1. While such a conflict of interest is concerning, it does not automatically
follow that Judge Spaulding blocked relief. Nor does it
appear that Petitioner ever sought to remedy this conflict of interest by asking that his case be transferred
to a different judge—rather, Petitioner’s record is completely devoid of filings from November 20, 1997 to August 20, 2012, the time in which Judge Spaulding
oversaw Petitioner’s case. Docket, ECF No. 28-8. Further, Petitioner suggests that it was the transfer of his
case from Judge Spaulding that spurred his filing of
another motion to appoint counsel in 2012. Pet’s Surreply to Resp’s Reply in Supp. of Resp’s Mot. to Dismiss for Failure to Exhaust State Remedies at 2, ECF
No. 36. The Court, like Magistrate Judge Aboulhosn,
notes that the delay from 1997 until 2012 is largely
the fault of the circuit court’s failure to control its
docket. PF&R at 34, ECF No. 37. But Petitioner took
no action in fifteen years besides filing a petition and
moving to appoint counsel one time. Docket, ECF No.
28-8. In the absence of evidence beyond the mere presence of a conflict of interest, the Court agrees that Petitioner has not supported the contention that the
prosecutor blocked relief.
4. Delay due to the appointment of counsel
Fourth, Petitioner objects to the proposed finding
that it was reasonable for some delay to accompany
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the appointment of new counsel. Namely, Petitioner
points to the statements that:
[t]he appointment of five new attorneys as habeas
counsel also resulted in some delay. It is reasonable
that some delay would occur as a result of the appointment of new counsel. Each replacement attorney
needs time to obtain and review the file and become
familiar with the facts and applicable law.
PF&R at 34, ECF No. 37. Petitioner argues that
such a delay would not be reasonable here— because
the file was missing, there was nothing for each new
attorney to review. Pet’s Objections to PF&R at 9, ECF
No. 41. However, this objection misses the point. That
there was no file to review does not change the fact
that any new appointed attorney would need additional time to try to locate the file, review whatever
case materials they could, meet with Petitioner, and
become familiar with any facts and applicable law. A
missing file does not erase the delay inherent in appointing a new attorney to a case.
Construing the objection liberally, the Court recognizes that Petitioner may be arguing that none of
the delay resulting from the appointment of new counsel should be attributed to him. While the PF&R
acknowledges that “[d]elays caused by court-appointed counsel may be attributed to the
State where ‘the petitioner has not personally
caused the delays nor condoned them,’” it proposes
that “Petitioner has attributed to the delay by being
uncooperative with counsel.” PF&R at 33-34, 35, ECF
No. 37 (quoting Gardner v. Plumley, No. 2:12-cv03386, 2013 WL 5999041, at *6 (S.D.W. Va. Nov. 12,
2013)). The Court agrees that Petitioner should not be
held responsible for any delay during the time he was
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represented by Mr. Bayliss and Mr. Dascoli. PF&R at
35, ECF No. 37. However, as discussed above, Petitioner was at best unhelpful during Mr. Rosenlieb’s
and Mr. Hostler’s tenure as appointed counsel. See
Section III.A.1., supra. The delay due to the appointment of these counsel, therefore, is not solely attributable to the State.
5. Whether state habeas proceedings have been
“reactivated”
Fifth, Petitioner objects to Respondent’s characterization that state proceedings were “reactivated” in
January 2019.11 Objections to PF&R at 10, ECF No.
41; PF&R at 20, ECF No. 37 (quoting Reply in Supp.
of Resp’s Mot. to Dismiss for Failure to Exhaust State
Remedies at 8-9, ECF No. 33). Courts have declined to
waive exhaustion where state proceedings have been
“reactivated.” Plymail v. Mirandy, No. 3:14-6201, 2017
WL 4280676, at *9 (S.D.W. Va. Sept. 27, 2017) (citing
Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995)).
State proceedings have been “reactivated” where
meaningful progress has been made in them—for example, where amended petitions have been filed,
court-appointed counsel are actively engaged, and
state courts are actively holding hearings on the case.
Id.; see also Wojtczak v. Fulcomer, 800 F.2d 353, 354
(3d Cir. 1986) (waiving exhaustion requirement where
almost three years had passed without the petitioner’s
counsel securing a hearing); Simmons v. Garman, No.
11
Puzzlingly, Petitioner’s objections on this issue quote the
PF&R’s summary of and quotations from Respondent’s argument
as to state proceedings being “reactivated.” Objections to PF&R
at 10, ECF No. 41. Because the instant objections were filed pro
se, the Court liberally construes them to object to the proposed
finding that state proceedings have been reactivated.
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16-4068, 2017 WL 2222526 at *3 (E.D. Pa. Feb. 14,
2017) (finding that state proceedings were progressing
normally where the court had established deadlines
and set a hearing date).
Petitioner points out that state proceedings have
not adhered to the deadlines set forth in the January
18, 2019 order, which called for a final petition to be
filed by July 5, 2019, scheduled a hearing on the final
petition on August 16, 2019, and promised a ruling by
September 6, 2019. Objections to PF&R at 10, ECF
No. 41. While state proceedings are admittedly offschedule, that does not prevent them from being “reactivated.” Rather, the state proceedings here have
checked the boxes described in Plymail—an amended
petition has been filed (albeit not a final amended petition); hearings and status conferences have been
scheduled, including one in January 2023; and appointed counsel is engaged in the matter, as evidenced
by the letter attached to Petitioner’s supplement to his
objections. Letter from Jason Gain to Alan Hicks, ECF
No. 43-1. Moreover, the state court and the parties are
actively working to deal with the lack of a record, a
serious issue that has plagued Petitioner’s proceedings up to this point. Id.
In this objection, Petitioner also quotes “derisive
statements” by Judge Reeder in the January 18, 2019
Order, claiming that these statements indicate an ongoing scheme to contaminate the record with baseless
accusations. Objections to PF&R at 10-11, ECF No. 41.
Namely, Petitioner objects to the characterization that
delays in the matter stem from Petitioner’s “inability
to work with counsel.” Id. at 10 (quoting January 18,
2019 Order, ECF No. 33-2). Petitioner ultimately accuses Respondent, and later Magistrate Judge
Aboulhosn, of “parroting” these misstatements in
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their filings. Id. at 10, 12. Again, the Court acknowledges Petitioner’s frustration with the slow pace of
proceedings. However, the role of this Court is to determine whether exhaustion can be excused, not to
quibble with Judge Reeder’s findings of fact. Moreover, the Court reiterates the standard set forth in the
PF&R—while courts need only consider “the face of
the petition and any attached exhibits” in reaching its
decision, they may also consider exhibits and matters
of public record, such as documents from prior state
court proceedings.” PF&R at 22- 23, ECF No. 37 (citing
Wolfe v. Johnson, 565 F.3d 140, 169 (4th Cir. 2009)
and Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009)).
The PF&R in no way parrots proceedings from state
court. Rather, it reflects an extensive and independent
review of the record—a record that, in addition to orders from Judge Reeder, contains letters between Petitioner and counsel, hearing transcripts reflecting Petitioner’s own words, and Petitioner’s filings in this
matter. Following its own thorough and independent
review of the record, this Court finds in accordance
with the PF&R.
B. Whether the delay was inordinate and unjustified
With Petitioner’s objections in mind, the Court examines (1) whether Petitioner’s state habeas proceedings have been subject to inordinate and unjustified
delay, thereby warranting waiving the exhaustion requirement; and in the alternative, (2) whether it is appropriate to stay the petition and hold federal proceedings in abeyance while Petitioner exhausts his habeas
proceedings in state court. While the Court finds that
the delay was inordinate, it does not warrant waiving
the exhaustion requirement where state habeas proceedings have been reactivated. Nor it is appropriate
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to stay the petition and hold federal proceedings in
abeyance pending exhaustion of Petitioner’s state habeas claims, as Petitioner will not be barred from filing
another federal habeas petition upon resolution of his
state proceedings.
Petitioner does not dispute that his habeas petition contains a mix of exhausted and unexhausted
claims. Instead, he argues that the exhaustion requirement should be excused following the inordinate
delay of habeas proceedings in state court. Pet’s Reply
and Objection to Resp’s Mot. to Dismiss for Failure to
Exhaust State Remedies at 6, ECF No. 31. 28 U.S.C. §
2254(b)(1) provides that a state prisoner's petition for
a writ of habeas corpus shall not be granted unless the
petitioner “has exhausted the remedies available in
the courts of the State.” The Supreme Court has encouraged a “rigorously enforced total exhaustion rule”
to (1) protect the state judiciary’s role in enforcing federal law, (2) avoid disrupting state judicial proceedings, and (3) ensure that factual records are developed
prior to being presented to the federal courts for review. Rose v. Lundy, 455 U.S. 509, 518–19 (1982).
However, because the exhaustion rule is one of comity,
it should be applied flexibly. Patterson v. Leeke, 556
F.2d 1168, 1170 (4th Cir. 1977).
Section 2254(b)(1)(B) excuses the exhaustion requirement where “there is an absence of available
[s]tate corrective process or circumstances exist that
render such process ineffective to protect the rights of
the applicant.” In keeping, the Fourth Circuit has recognized several circumstances under which federal
courts should excuse exhaustion. See Farmer v. Cir.
Ct. of Md. for Balt. Cnty., 31 F.3d 219, 223 (4th Cir.
1994) (“There is . . . authority for treating sufficiently
diligent, though unavailing, efforts to exhaust as,
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effectively, exhaustion, and for excusing efforts sufficiently shown to be futile in the face of state dilatoriness or recalcitrance”). Namely, “[s]tate remedies may
be rendered ineffective by inordinate delay or inaction
in state proceedings.” Ward v. Freeman, 46 F.3d 1129,
at *1 (4th Cir. 1995) (unpublished table decision); see
also Walkup, 2005 WL 2428163, at *3 (“[A]n inordinate and unjustified delay may excuse the petitioner
from the
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