UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-6547

CHARLES F. PLYMAIL,

Petitioner - Appellant,

v.

PATRICK A. MIRANDY, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers, 

Chief District Judge. (3:14-cv-06201)

Submitted: November 18, 2016 Decided: November 23, 2016

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Charles F. Plymail, Appellant Pro Se. Shannon Frederick Kiser, 

OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Charles F. Plymail seeks to appeal the district court’s 

order accepting the recommendation of the magistrate judge and 

dismissing without prejudice his 28 U.S.C. § 2254 (2012) 

petition for failing to exhaust his state remedies. The order 

is not appealable unless a circuit justice or judge issues a 

certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). 

A certificate of appealability will not issue absent “a 

substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2) (2012). When the district court denies 

relief on procedural grounds, the prisoner must demonstrate both 

that the dispositive procedural ruling is debatable and that the 

petition states a debatable claim of the denial of a 

constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85

(2000).

Our review of the present record, which is significantly 

constrained by the absence of state court documents, convinces

us that the district court’s procedural ruling is debatable. 

Before presenting claims in federal court, a § 2254 petitioner 

must exhaust all available state court remedies. 28 U.S.C. 

§ 2254(b)(1); Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir. 

2015); Jones v. Sussex I State Prison, 591 F.3d 707, 713 (4th 

Cir. 2010). However, a petitioner may be excused from the 

exhaustion requirement if “there is an absence of available 
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[s]tate corrective process[] or circumstances exist that render 

such process ineffective to protect the rights of the 

[petitioner].” 28 U.S.C. § 2254(b)(1)(B). State remedies may 

be rendered ineffective by inordinate delay or inaction in state 

proceedings. See Farmer v. Circuit Court of Md. for Balt. Cty., 

31 F.3d 219, 223 (4th Cir. 1994) (“There is . . . authority for 

treating sufficiently diligent, though unavailing, efforts to 

exhaust as, effectively, exhaustion, and for excusing efforts 

sufficiently shown to be futile in the face of state 

dilatoriness or recalcitrance.”).

Here, the West Virginia Supreme Court of Appeals took over 

20 years to decide Plymail’s direct appeal of his criminal 

conviction. Our sister circuits have found much shorter delays

sufficient to excuse the exhaustion requirement. See, e.g., Lee 

v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (“[I]t is 

difficult to envision any amount of progress justifying an 

eight-year delay in reaching the merits of a petition.”); Coe v. 

Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (holding, in the 

context of four-year delay, that “a prisoner need not fully 

exhaust his state remedies if the root of his complaint is his 

inability to do so.”).

The magistrate judge and the district court relied on the 

West Virginia Supreme Court of Appeals’ finding that much of the 

delay was caused by Plymail’s difficult relationship with his 
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many appointed counsel. However, the district court and the 

magistrate judge also noted that the State failed to provide any 

records from the state court proceedings. The few records 

available in the present record indicate that not all of the 

delay can be attributed to Plymail; for example, he successfully 

petitioned at one juncture for a writ of mandamus ordering a 

resentencing to allow him to perfect his appeal. Plymail also 

alleged that he suffered from a life-threatening medical 

condition that rendered him unable to ensure the timely 

prosecution of his appeal.

The magistrate judge and district court also noted that 

Plymail’s state habeas petition remains pending in state court. 

The state petition had been pending for a year when Plymail 

filed his § 2254 petition, and has been pending for a total of 

more than three years. As the magistrate judge and the district 

court correctly recognized, it is not surprising a state habeas 

proceeding would not be adjudicated while a direct appeal was 

pending; however, the state court’s inaction is troubling given 

that one of Plymail’s claims concerned the inordinate delay in 

adjudicating his direct appeal. Accordingly, based on the 

record before us, we conclude that the district court 

prematurely dismissed Plymail’s petition for failure to exhaust 
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his state remedies.* See Rule 4, R. Governing § 2254 Proceedings 

(providing for sua sponte dismissal “[i]f it plainly appears 

from the petition and any attached exhibits” that petitioner is 

not entitled to relief).

By this disposition, we indicate no view as to the ultimate 

success of Plymail’s petition. We simply conclude that the 

current state of the record is insufficient to establish as a 

matter of law that Plymail’s petition should be dismissed for 

failure to exhaust.

Accordingly, we grant a certificate of appealability, 

vacate the district court’s judgment, and remand the case to the 

district court for further proceedings. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before this court and argument would 

not aid the decisional process.

VACATED AND REMANDED

 * We likewise conclude that, on the present record, 

“reasonable jurists could debate whether” the 20-year delay in 

adjudicating Plymail’s direct appeal constituted a due process 

violation. Slack, 529 U.S. at 484 (internal quotation marks 

omitted); see United States v. Johnson, 732 F.2d 379, 381 (4th 

Cir. 1984) (“[U]ndue delay in processing an appeal may rise to 

the level of a due process violation.”).