Appleby v. Warden, Northern Regional Jail

• Citation: 595 F.3d 532
• Decision Date: 19 February 2010
• Docket Number: No. 07-7613.,07-7613.
• Parties: David APPLEBY, Petitioner-Appellant, v. WARDEN, NORTHERN REGIONAL JAIL AND CORRECTIONAL FACILITY, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

595 F.3d 532

David APPLEBY, Petitioner-Appellant, v. WARDEN, NORTHERN REGIONAL JAIL AND CORRECTIONAL FACILITY, Respondent-Appellee.

No. 07-7613.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2009.

Decided: February 19, 2010.

ARGUED: Martin Patrick Sheehan, Sheehan & Nugent, PLLC, Wheeling, West Virginia, for Appellant. Robert David Goldberg, Office of the Attorney General of West Virginia, Charleston, West Virginia, for Appellee. ON BRIEF: Darrell V. McGraw, Jr., Attorney General, Charleston, West Virginia, for Appellee.

Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.

Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Judge NIEMEYER joined. Chief Judge TRAXLER wrote a dissenting opinion.

OPINION

AGEE, Circuit Judge:

David Appleby ("Appleby") appeals the judgment of the United States District Court for the Northern District of West Virginia, which dismissed his petition for a Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 2253(c), this Court granted a certificate of appealability on one issue. For the following reasons, we affirm the judgment of the district court.

I. Background

Appleby was indicted in September 2001 in the Circuit Court of Ohio County, West Virginia ("circuit court") for Driving Under the Influence of Alcohol, Third Offense ("Count I"), in violation of West Virginia Code §§ 17C-5-2(d)(1)(A) and 17C-5-2(k), and Driving While Revoked for Driving Under the Influence, Third Offense ("Count II"), in violation of West Virginia Code § 17B-4-3(b).

Appleby entered a plea of guilty to both charges. During the plea colloquy, the circuit court informed Appleby that, as a consequence of his guilty plea, he could be imprisoned for "a term of not less than one year nor more than three years" each for Count I and for Count II. The court advised Appleby that the one to three year sentences for each count could "run consecutively so that your sentence then would be not less then [sic] two nor more than six years." J.A. 285-86. The court then accepted Appleby's guilty plea as being entered "knowingly, intelligently and voluntarily," J.A. 291, and set sentencing to take place approximately a week later.

The Ohio County prosecuting attorney then filed a Recidivist Information, which alleged that Appleby was "the same person who has been five times previously convicted in the State of West Virginia for crimes punishable by confinement in a penitentiary, [and] should be sentenced to be confined in the state correctional facility for life" pursuant to the West Virginia recidivist statutes, West Virginia Code §§ 61-11-18 and 61-11-19 (the "West Virginia recidivist statutes").¹ J.A. 192. The predicate offenses alleged in the Recidivist Information included a felony conviction of unlawful assault, in violation of West Virginia Code § 61-2-9(a); two felony convictions of Driving While Revoked for Driving Under the Influence, Third Offense, in violation of West Virginia Code § 17B-4-3(b); and two felony convictions of Driving Under the Influence, Third Offense, in violation of West Virginia Code § 17C-5-2(k).

Before proceedings on the Recidivist Information began, Appleby filed numerous motions with the circuit court, including a motion to dismiss contending that the "offenses alleged in the information do not form a basis for the State's request for a sentence of life." J.A. 300. This motion was denied, but after obtaining new counsel, Appleby filed a second motion to dismiss, alleging multiple constitutional issues. The circuit court held a hearing on the second motion to dismiss which it also denied.

Appleby then petitioned the Supreme Court of Appeals of West Virginia ("WVSCA") for a Writ of Prohibition to prevent the recidivist proceedings from continuing or, in the alternative, to allow him to withdraw his guilty plea. Appleby raised multiple constitutional and procedural issues in the petition, including: "[S]hould Mr. Appleby have been given notice of the State's intention to have him sentenced as a recidivist before his plea was accepted?" J.A. 386. The WVSCA heard the petition on the merits, and ultimately denied relief on all issues. The WVSCA held, in relevant part, that because "the imposition of a life sentence is not `definite, immediate and largely automatic,'" the recidivist proceedings are a collateral consequence of a guilty plea and thus the "sentencing court need not advise a defendant about the habitual offender law before accepting a guilty plea to a predicate offense under that law." Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800, 808-09 (2002) (quoting Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1365-66 (4th Cir.1973), and State v. Elliott, 133 N.H. 190, 574 A.2d 1378, 1380 (1990)).

Proceedings on the Recidivist Information were then conducted in the circuit court. A jury verdict was returned finding Appleby to be the same person who committed the predicate crimes alleged. A sentencing hearing was held and a life sentence, with eligibility of parole after 15 years, was imposed in October 2003. Appleby appealed the decision to the WVSCA, but the petition for appeal was denied.²

Appleby then timely filed the habeas petition with the district court, contending that his guilty plea was "not voluntary because he did not have a full understanding of the consequences of his guilty plea, in particular, Petitioner was not told at his plea hearing that he faced the possibility of a life sentence under the West Virginia recidivist statute." J.A. 942. The Warden filed a motion to dismiss, which the magistrate judge recommended be granted principally because the WVSCA had found that a recidivist life sentence is a "collateral consequence of a plea, rather than a direct consequence" citing the decision in Recht. J.A. 948.

The district court adopted the magistrate judge's Report and Recommendation, and found, in relevant part, that "petitioner's plea was done knowingly and voluntarily" because "a valid guilty plea requires only that the defendant be advised as to the `direct' consequences of his plea," and "a recidivist life sentence is a `collateral' consequence of a plea." J.A. 966. The district court held the WVSCA "determination was not contrary to, or an unreasonable application of, clearly established federal law" and granted a motion to dismiss Appleby's habeas petition with prejudice. J.A. 966-67.

Appleby timely appealed the district court's order denying his habeas petition. This Court granted a certificate of appealability as to this issue: "Whether Appleby's guilty plea was knowing and voluntary, in light of the question whether his sentence of life imprisonment was a direct or collateral consequence of his guilty plea." J.A. 973. Our review is there-fore limited only to the foregoing issue.³

II. Standard of Review

The decision of a district court on a matter of habeas corpus relief is reviewed de novo and under the standards set forth in 28 U.S.C. § 2254. Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir.2003). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), if the issue on appeal was adjudicated in state court, as it was here, this Court

may award habeas corpus relief on a claim that was adjudicated on its merits in state court only if the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Cummings v. Polk, 475 F.3d 230, 237 (4th Cir.2007) (quoting 28 U.S.C. § 2254(d)).

In Bell v. Cone, the Supreme Court held that a state court's decision is "contrary to" clearly established federal law "if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts." 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court's decision is an "unreasonable application" of federal law "if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case." Id. However, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

III. Collateral Consequence

A.

Appleby argues that his due process rights were violated because the circuit court failed "to make certain that [he] had a full understanding of the consequences of his guilty plea." Appellant's Br. 12. Specifically, Appleby contends that he "was never told that by pleading guilty that he might be subject to a sentence in excess of the indeterminate consecutive sentence of two to six years imprisonment." Appellant's Br. 13. In sum, Appleby claims that "[t]he decision of the [WVSCA] that Mr. Appleby had no right to have the likelihood he would have to face a life sentence as a recidivist explained to him as part of a plea of guilty is not reasonable." Appellant's Br. 21.

The WVSCA held that the West Virginia analogue to Federal Rule of Criminal Procedure 11 "does not require a trial court to advise a defendant concerning a possible recidivist enhancement."⁴ Recht, 583 S.E.2d at 808. The WVSCA found "further support in the recognition of the Fourth Circuit that ... `the defendant need not be advised of all collateral consequences of his plea,'" which are those that do not result in "a definite, immediate and largely automatic effect on the range of the defendant's punishment." Id. (quoting Cuthrell, 475 F.2d at 1365-66). Because "[t]he State not only retains the discretion to decide when to pursue recidivist sentencing (or to decide...