Pethtel v. Ballard

• Decision Date: 18 August 2010
• Docket Number: No. 09-6075.,09-6075.
• Citation: 617 F.3d 299
• Parties: Shawn PETHTEL, Petitioner-Appellant,v.Warden David BALLARD, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

617 F.3d 299

Shawn PETHTEL, Petitioner-Appellant,v.Warden David BALLARD, Respondent-Appellee.

No. 09-6075.

United States Court of Appeals Fourth Circuit.

Argued: May 12, 2010.

Decided: Aug. 18, 2010.

ARGUED: Steven Harris Goldblatt, Director, GEORGETOWN UNIVERSITY LAW CENTER, Appellate Litigation Program, Washington, D.C., for Appellant. Robert David Goldberg, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee. ON BRIEF: Charlotte Garden, Supervising Attorney, Kate Bushman, Supervising Attorney, Edward W. Duffy, Student Counsel, Elena M. Romerdahl, Student Counsel, GEORGETOWN UNIVERSITY LAW CENTER, Appellate Litigation Program, Washington, D.C., for Appellant. Darrell V. McGraw, Jr., Attorney General, Charleston, West Virginia, for Appellee.

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge SHEDD and Judge DUNCAN joined.

OPINION

AGEE, Circuit Judge:

Shawn Pethtel (“Pethtel”) appeals the judgment of the United States District Court for the Northern District of West Virginia, which denied relief on Pethtel's petition for a writ of habeas corpus (hereinafter “habeas petition”) pursuant to 28 U.S.C. § 2254 (2006). For the following reasons, we affirm the judgment of the district court.

I.

In September 1999, Pethtel was charged in West Virginia with twenty counts of sexual assault in the third degree, three counts of filming a minor engaged in sexually explicit conduct, two counts of possession with the intent to deliver a controlled substance, two counts of conspiracy to commit the felony offense of delivery of a controlled substance, one count of conspiracy to commit nighttime burglary, one count of conspiracy to film a minor engaging in sexually explicit conduct, one count of grand larceny, and one count of conspiracy to commit grand larceny.

At the time the indictment was returned in West Virginia, Pethtel was already serving a sentence in Ohio for unrelated charges. West Virginia lodged a detainer against Pethtel with Ohio, and Pethtel sought voluntary return to West Virginia to dispose of the West Virginia charges. Pethtel was extradited to West Virginia for arraignment; however, he was returned to Ohio shortly after his arraignment and before final disposition of the West Virginia charges.

Upon return to Ohio, Pethtel made a motion in the West Virginia trial court to dismiss the West Virginia charges with prejudice, claiming a violation of the “anti-shuttling” or “trial before return provision” of the Interstate Agreement on Detainers Act (“IADA”).¹ After multiple hearings, the West Virginia trial court denied the motion to dismiss, holding that Pethtel “did not languish in the court system in West Virginia,” and finding that West Virginia “operated under the assumption that he was going back [to Ohio] for a probation hearing of some sort that would allure [sic] to his benefit.” (J.A. 213).

Pethtel pled guilty in West Virginia to the burglary charge and to one count of possession of marijuana with intent to deliver. He was then convicted in a jury trial of a total of twenty-six felony offenses, including the sexual assault, filming a minor, and conspiracy charges. The remaining charges were dismissed. Pethtel was sentenced to 53 to 155 years' imprisonment.

Pethtel filed a direct appeal with the West Virginia Supreme Court of Appeals (“WVSCA”), asserting in relevant part that “the trial court erred when it refused to dismiss the charges against the petitioner after his rights under the [IADA] were violated.” (J.A. 55).² Citing Alabama v. Bozeman, 533 U.S. 146, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001), Pethtel contended that case “rejected all of the exceptions utilized by various states and held the language of the agreement (IADA) militates against an implicit exception, for it is absolute.” (J.A. 60) (emphasis omitted) (internal quotations omitted). The WVSCA refused Pethtel's petition for appeal by order but without an opinion.

Pethtel also filed a petition for a writ of habeas corpus in the West Virginia trial court, asserting that his convictions must be vacated due to the alleged IADA violation. The trial court granted the petition and vacated his convictions, finding that West Virginia violated the IADA, and holding that “[t]his Court has no discretion in applying the harsh remedies of the [IADA] for the violation, as mandated by Alabama v. Bozeman and accordingly, the Court finds that the only appropriate remedy is dismissal, with prejudice, of all counts of the Indictment.” (J.A. 84).

West Virginia appealed that decision to the WVSCA, which reversed the trial court's grant of habeas relief in a published opinion. Relying in part on this Court's decision in Bush v. Muncy, 659 F.2d 402 (4th Cir.1981), the WVSCA held that “any rights created by the provisions of the [IADA] are rights which are statutory in nature and which clearly do not give rise to the level of right guaranteed by either the Constitution of West Virginia or the Constitution of the United States.” Pethel³v. McBride, 219 W.Va. 578, 638 S.E.2d 727, 739 (2006) (emphasis omitted). Instead, “[t]hey are procedural technicalities which do not affect a trial court's power.” Id. at 743. Thus, the WVSCA found that “[t]he violation of the IAD[A] alleged herein did not impact the fairness of Pethel's trial or lead to the incarceration of an innocent man. Habeas relief is simply not available, under West Virginia law, to remedy a violation of a procedural technicality, such as the violation of a statutory IAD[A] provision.” Id.

Pethtel then filed a § 2254 petition for habeas relief in the district court asserting that the IADA “was violated when, pursuant to Article III(a) of the IAD[A], the Petitioner requested final disposition of his case in West Virginia while imprisoned in Ohio. Specifically, the ‘anti-shuttling’ provision of the IAD[A] ... was violated in that the Petitioner was transferred to West Virginia, and then back to Ohio, before his West Virginia case was finished.” ⁴ (J.A. 7) (emphasis omitted). The magistrate judge held that Pethtel “is simply not afforded federal habeas relief on [the IADA] issue,” pursuant to Bush, (J.A. 438), and noted that the Bush Court “found that the anti-shuttling provision [of the IADA] does not involve a ‘fundamental right historically considered critical to the protection of the criminal accused against the unfair prosecution and trial by the state.’ ” (J.A. 439-40). The magistrate judge concluded that “[w]hether or not this Court concurs with the opinion of the Fourth Circuit, ... the Court is nevertheless constrained to its finding and must deny the petitioner's claimed IADA violation.” (J.A. 440-41).

The district court adopted the magistrate judge's recommendation, holding that, while a “violation of the IADA occurred in Pethtel's case” and “Pethtel [was not] afforded meaningful review on his direct appeal,” relief was nonetheless unavailable pursuant to Bush. (J.A. 451). The district court found that “this Court's power to grant habeas relief ... is constrained by the Fourth Circuit's holding in Bush that a violation of the anti-shuttling provision of the IADA ‘does not constitute a fundamental defect entitling a petitioner to habeas relief under section 2254.’ ” (J.A. 451-52) (quoting Bush, 659 F.2d at 408). Accordingly, the district court denied Pethtel's habeas petition.

Pethtel requested a certificate of appealability (“COA”) from the district court, pursuant to 28 U.S.C. § 2253(c)(1) (2006). In his application, Pethtel continued to assert that he was entitled to habeas relief due to the alleged IADA violation, arguing that “[i]n this case, the U.S. District Court relied exclusively on Bush v. Muncy to deny petitioner's application for post-conviction relief without giving meaning [sic] consideration to petitioner's claim that exceptional circumstances warrant habeas corpus relief.” (J.A. 462). For the first time during proceedings in either state or federal court, Pethtel also argued that he had “never had any meaningful direct review” of his IADA claims. (J.A. 460).

The district court granted a COA, which was construed as a timely notice of appeal pursuant to Smith v. Barry, 502 U.S. 244, 248-49, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), as to the following questions: (1) whether Pethtel was entitled to habeas relief as to his IADA claims (J.A. 480), and (2) “whether Pethtel has been afforded adequate procedural due process.” (J.A. 479-80).⁵ This Court has jurisdiction over Pethtel's appeal, pursuant to 28 U.S.C. §§ 1291 and 2253.

II.

A.

Pethtel first argues that he is entitled to habeas relief on his claim that the trial before return provision of the IADA was violated (hereinafter “IADA claim”). Pethtel contends that “the WVSCA's arbitrary refusal to redress the IADA violation is the type of fundamental defect that is redressable, even when the underlying statutory claim is not generally reviewable in habeas corpus.” (Appellant's Br. 28). Although Pethtel recognizes that the Bush decision directs that a violation of the trial before return provisions of the IADA is not cognizable on habeas corpus review, he contends that the Supreme Court's decisions in Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994), and Bozeman modify or overrule Bush's holding.⁶

Specifically, Pethtel asserts that Reed recognized an IADA claim as cognizable in habeas if it is accompanied by “aggravating” or “exceptional” circumstances. Pethtel insists that his case was accompanied by such circumstances; namely, (1) “[t]he West Virginia trial court returned Pethtel to Ohio to save the state money, an impermissible consideration ..., and then made wholly unsupported findings that Pethtel was returned to Ohio for his own benefit, seemingly to conceal the IADA violation,” (Appellant's Br. 31); (2) “[t]he WVSCA denied Pethtel's petition for direct review without explanation, even though the validity of the claim was...