Appleby v. WARDEN, NORTHERN REGIONAL JAIL

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

DAVID APPLEBY, 
Petitioner-Appellant,
v.
 No. 07-7613
WARDEN, NORTHERN REGIONAL
JAIL AND CORRECTIONAL FACILITY,
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
John Preston Bailey, District Judge.
(3:05-cv-00087-JPB-JSK)

Argued: October 27, 2009

Decided: February 19, 2010

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

Affirmed by published opinion. Judge Agee wrote the major-
ity opinion, in which Judge Niemeyer joined. Chief Judge
Traxler wrote a dissenting opinion.

COUNSEL

ARGUED: Martin Patrick Sheehan, SHEEHAN &
NUGENT, PLLC, Wheeling, West Virginia, for Appellant.
2 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
Robert David Goldberg, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Darrell V. McGraw, Jr.,
Attorney General, Charleston, West Virginia, for Appellee.

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 rea-
sons, 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
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 3
"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 Recidi-
vist 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 Informa-
tion included a felony conviction of unlawful assault, in viola-
tion 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 sec-
ond motion to dismiss, alleging multiple constitutional issues.
The circuit court held a hearing on the second motion to dis-
miss which it also denied.

Appleby then petitioned the Supreme Court of Appeals of
1
West Virginia’s recidivist statute directs that when "any person [is]
convicted of an offense punishable by confinement in the penitentiary,"
§ 61-11-19, and that "person [has] been twice before convicted in the
United States of a crime punishable by confinement in a penitentiary, the
person shall be sentenced to be confined in the state correctional facility
for life." § 61-11-18(c).
4 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
West Virginia ("WVSCA") for a Writ of Prohibition to pre-
vent 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 "sen-
tencing 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, 583 S.E.2d 800,
808-09 (W. Va. 2002) (quoting Cuthrell v. Director, Patuxent
Inst., 475 F.2d 1364, 1365-66 (4th Cir. 1973), and State v.
Elliott, 574 A.2d 1378, 1380 (N.H. 1990)).

Proceedings on the Recidivist Information were then con-
ducted 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 sen-
tence, 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 dis-
trict court, contending that his guilty plea was "not voluntary
because he did not have a full understanding of the conse-
quences 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 "collat-
2
Appleby did not file a state habeas petition.
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 5
eral 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 "peti-
tioner’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 estab-
lished 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 adjudi-
cated 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
3
On brief, Appleby argues three additional issues. However, because
"this court is empowered to consider only the ‘specific issue or issues’ set
forth in the certificate of appealability," we will not consider those issues.
See United States v. Linder, 561 F.3d 339, 344 n.6 (4th Cir. 2009).
6 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
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 deter-
mination of the facts in light of the evidence pre-
sented 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 (2002). A state court’s decision is an "unrea-
sonable 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 (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 sub-
ject 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 likeli-
hood he would have to face a life sentence as a recidivist
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 7
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 Fed-
eral 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 conse-
quences 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 not to so proceed), but the separate nature of the
recidivist proceeding[s] [also] requires the State to satisfy a
4
Although both parties agree that the circuit court did not discuss the
possibility of future recidivist proceedings with Appleby, the WVSCA
note[d] that the State says that it specifically informed Mr.
Appleby’s trial counsel that, if he was convicted, the State would
seek a recidivist sentence, and that discovery was apparently pro-
vided to Mr. Appleby that included a list of Mr. Appleby’s prior
convictions. We additionally note that at a bond hearing . . . the
Prosecuting Attorney told the trial judge, in the presence of Mr.
Appleby and counsel, "I do not believe that two to six is the max-
imum sentence he may be facing. And in fact, this Court has
often indicated that DUI three is an act of violence, and I contend
that there’s a possibility of a much steeper sentence . . . ."
Recht, 583 S.E.2d at 809 n. 6. Appleby was at this hearing and presumably
heard this exchange.
This Court has held that, even if neither the court nor defendant’s coun-
sel "ascertained that [the defendant] understood the consequences of his
plea," if the defendant "in fact understood, the error was harmless,"
although the state has the burden of proving harmlessness. Bailey v. Mac-
Dougall, 392 F.2d 155, 160 (4th Cir. 1968). The Second and Eighth Cir-
cuits have held that it is sufficient that the defendant actually know of the
consequences of his plea, even if the court did not inform him. See United
States ex rel. Brooks v. McMann, 408 F.2d 823, 825-26 (2d Cir. 1969);
Kotz v. United States, 353 F.2d 312, 314-15 (8th Cir. 1965).
8 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
number of requirements," the WVSCA held that a recidivist
proceeding is a collateral, and not direct, consequence of a
guilty plea. Id. The WVSCA concluded that Appleby thus had
full understanding of the direct consequences of his plea, and
therefore his due process rights were not violated. The issue
before us is whether the WVSCA’s determination is contrary
to or an unreasonable application of applicable federal law, as
determined by the United States Supreme Court.

B.

In Recht, the WVSCA stated that

"[g]uilty pleas are governed by Rule 11 of the West
Virginia Rules of Criminal Procedure, which is pat-
terned after Rule 11 of the Federal Rules of Criminal
Procedure." State v. Bennett, 370 S.E.2d 120, 123
(W. Va. 1988). In applying our Rule 11, we have
looked to the advisory committee’s note to federal
Rule 11.

Recht, 583 S.E.2d at 807-08. The 1966 Amendments to the
Rule set out the requirement that, before accepting a guilty
plea, a judge must "determine that the defendant understands"
the consequences and provides a list of these consequences
which includes, among other things, "any maximum possible
penalty" and "any mandatory minimum penalty." FRCP
11(b)(1)(H) & (b)(1)(I). The notes to the 1974 amendments of
the Rule explain that

the judge is not required to inform a defendant about
[additional consequences that might follow a guilty
plea, including additional punishment], though a
judge is free to do so if he feels a consequence of a
plea of guilty in a particular case is likely to be of
real significance to the defendant.

Id. (emphasis added).
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 9
These amendments brought the Rule in line with the preex-
isting and longstanding principle that, before accepting a
guilty plea, a trial judge must ensure that the defendant is
fully aware of the relevant consequences of the plea. See, e.g.,
Kercheval v. United States, 274 U.S. 220, 223-24 (1927).
However, exactly which consequences are relevant beyond
the list articulated by the Rule remained undefined. Thus, it
was "clear that administration of [Rule 11] require[d] the
development of some limiting guide to define the nature of
the consequences of which a defendant must be advised so
that the requirements of the rule shall have been met." Frucht-
man v. Kenton, 531 F.2d 946, 948 (9th Cir. 1976).

The Supreme Court has emphasized that, because a defen-
dant who enters a guilty plea forgoes "not only a fair trial, but
also other accompanying constitutional guarantees[,] . . . the
Constitution insists, among other things, that the defendant
enter a guilty plea that is ‘voluntary’ and that the defendant
must make related waivers ‘knowing[ly], intelligent[ly], [and]
with sufficient awareness of the relevant circumstances and
likely consequences.’" United States v. Ruiz, 536 U.S. 622,
628-29 (2002) (quoting Brady v. United States, 397 U.S. 742,
748 (1970)). A defendant enters a guilty plea intelligently
when he is "advised by competent counsel, . . . made aware
of the nature of the charge against him, and there was nothing
to indicate that he was incompetent or otherwise not in control
of his mental faculties." Brady, 397 U.S. at 756. A guilty plea
is voluntary if "‘entered by one fully aware of the direct con-
sequences’" of the plea. Id. at 755 (emphasis added) (quoting
Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir.
1957) (en banc), rev’d on confession of error on other
grounds, 356 U.S. 26 (1958)).

The Supreme Court has neither further defined the term
"direct," nor has it addressed whether recidivist proceedings
are a "direct" consequence of the plea within the meaning of
Brady.5 Therefore, we must decide whether the WVSCA’s
5
Although the Supreme Court has not answered the question directly,
"[f]or the ‘clearly established’ prong to apply, the relevant Supreme Court
10 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
determination that the West Virginia recidivist proceedings
are not a direct consequence of the plea is contrary to or an
unreasonable application of Brady. An examination of the
nature of the West Virginia recidivist statutes and proceed-
ings, Supreme Court commentary on recidivist statutes gener-
ally, and the federal circuit court of appeals’ interpretation of
Brady lead us to the conclusion that it was not.

1.

In Recht, the WVSCA examined recidivist proceedings
brought pursuant to the West Virginia recidivist statutes, and
concluded those proceedings are of a "separate nature," and
thus a collateral consequence of the plea.6 After citing our
decision in Cuthrell that "the distinction between ‘direct’ and
‘collateral’ consequences of a plea . . . turns on whether the
result represents a definite, immediate and largely automatic
effect on the range of the defendant’s punishment," the Recht
Court addressed the state law basis of Appleby’s claim.

Under West Virginia Code §§ 61-11-18 & 19, the
imposition of a life sentence is not "definite, imme-
diate and largely automatic." The State not only
retains the discretion to decide when to pursue recid-
ivist sentencing (or to decide not to so proceed), but
the separate nature of the recidivist proceeding

precedent need not be directly on point, but must provide a ‘governing
legal principle’ and articulate specific considerations for the lower courts
to follow when applying the precedent." Quinn v. Haynes, 234 F.3d 837,
844 (2000). The Court has done so in Brady.
6
Although the WVSCA cited Rule 11 and circuit court of appeals prece-
dent, it did not cite Brady. However, "to avoid [the] pitfall of rendering
decision ‘contrary to’ federal law, [the] state court need not cite or even
be aware of relevant Supreme Court cases, ‘so long as neither the reason-
ing nor the result of the state-court decision contradicts them.’" Barbe v.
McBride, 521 F.3d 443, 456 n. 19 (4th Cir. 2008) (quoting Early v.
Packer, 537 U.S. 3, 8 (2002)).
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 11
requires the State to satisfy a number of require-
ments, such as: (1) filing a written information; (2)
proving "beyond a reasonable doubt that each peni-
tentiary offense, including the principal penitentiary
offense, was committed subsequent to each preced-
ing conviction and sentence"; and (3) proving
beyond a reasonable doubt to the jury the identity of
the defendant.

Recht, 583 S.E.2d at 808 (internal citations omitted).

Moreover, West Virginia Code § 61-11-19 requires the
Recidivist Information be brought before the defendant is sen-
tenced and within the same term of court "at which such per-
son was convicted" or jurisdiction to impose the recidivist
sentence is lost. To the extent the issue before us involves
questions of West Virginia law, the determination of the
WVSCA is binding as to matters of interpretation of state law.
Estelle, 502 U.S. at 67-68.

We agree with the WVSCA’s determination that recidivist
proceedings are of a "separate nature" for several reasons.
First, even if a defendant has committed the requisite predi-
cate crimes, it is not a certainty that the recidivist information
will be filed. The decision to file the recidivist information is
soundly left to the prosecuting attorney’s discretion. W. Va.
Code § 61-11-19; see also Rummel v. Estelle, 445 U.S. 263,
281 (1980) ("It is a matter of common knowledge that prose-
cutors often exercise their discretion in invoking recidivist
statutes . . . ."). Because the recidivist information is filed
after the court accepts the defendant’s guilty plea, and
because the prosecuting attorney has the discretion to decide
whether to file it, the trial court cannot necessarily be
expected to have knowledge of the possibility. See United
States v. Cariola, 323 F.2d 180, 186 (3d Cir. 1963)
("[U]nsolicited advice concerning the collateral consequences
of a plea which necessitates judicial clairvoyance of a super-
human kind can be neither expected nor required.").
12 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
Second, if the prosecuting attorney decides to file the recid-
ivist information, it must be timely and a separate proceeding
must be held and several additional elements must be proven.
The fact that each predicate offense was actually committed
and that the defendant is the person who committed these
crimes must be proven beyond a reasonable doubt. W. Va.
Code § 61-11-19. If a jury is impaneled for the recidivist pro-
ceedings, that jury is completely distinct from that of the orig-
inal proceeding. See George v. Black, 732 F.2d 108, 110-11
(8th Cir. 1984) (holding that a mandatory mental health com-
mitment proceeding is not a direct consequence of the plea
because the "proceedings are completely distinct from the
original criminal proceedings and are conducted by a different
tribunal"). Thus, the nature of recidivist proceedings pursuant
to the West Virginia recidivist statutes verifies that those pro-
ceedings are not a "direct" consequence of the plea because
they are not "definite, immediate and largely automatic."7

2.

The view that West Virginia recidivist proceedings are of
a separate, indirect nature is bolstered by the Supreme Court’s
holdings and comments in decisions dealing with recidivist
statutes. The Court has, in multiple cases, noted the "distinct
nature" of recidivism proceedings. In Graham v. West Vir-
ginia, the Supreme Court noted the "distinct nature of the
issue [of recidivism]" and the fact that "it does not relate to
the commission of the offense . . . and therefore it may be
subsequently decided." 224 U.S. 616, 629 (1912); see also
Almendarez-Torres v. United States, 523 U.S. 224, 244
(1998). The Court has consistently held that recidivism is not
7
With due respect for the view expressed in the dissent, we note that the
dissent does not, and cannot, rebut the significant distinction of the West
Virginia recidivist proceedings as separate, independent, and discretionary
proceedings from the underlying criminal conviction. Consequently, the
recidivist proceedings are not, as a matter of law, a "definite, immediate,
and largely automatic" consequence of the guilty plea.
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 13
an element of the triggering crime, thus further emphasizing
the discrete nature of the two proceedings. E.g., Almendarez-
Torres, 523 U.S. at 244 ("[T]o hold that the Constitution
requires that recidivism be deemed an ‘element’ of petition-
er’s offense would mark an abrupt departure from a long-
standing tradition . . . .").

In Oyler v. Boles, a decision also dealing with a challenge
to the West Virginia recidivist statutes, the Supreme Court
held that a defendant need not receive notice of impending
recidivist proceedings during the trial on the underlying trig-
gering offense. Although it does not deal with precisely the
same issue at bar, Oyler is instructive. The Court held that
"the determination of whether one is an habitual criminal is
‘essentially independent’ of the determination of guilt on the
underlying substantive offense." Oyler, 368 U.S. 448, 452
(1962). Although a defendant must receive "reasonable
notice" of impending recidivism proceedings, the Oyler Court
emphasized that "due process does not require advance notice
that the trial on the substantive offense will be followed by an
habitual criminal proceeding." Id.; see also Almendarez-
Torres, 523 U.S. at 243. It is clear from the Oyler decision
and others that the Supreme Court has repeatedly emphasized
the separate nature of recidivist proceedings, lending support
to the WVSCA’s determination that the proceedings are not
a direct consequence of a guilty plea within the meaning of
Brady.

The Recht Court appropriately referenced an opinion of
retired Justice Souter when sitting as a New Hampshire
Supreme Court justice:

The possible significance of a guilty verdict for pur-
poses of the habitual offender act is a classic exam-
ple of a conviction’s consequences that is collateral
in the sense that the consequence requires applica-
tion of a legal provision extraneous to the definition
of the criminal offense and the provisions for sen-
14 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
tencing those convicted under it. Thus, we have con-
sistently held that a sentencing court need not advise
a defendant about the habitual offender law before
accepting a guilty plea to a predicate offense under
that law.

Recht, 583 S.E.2d at 808-09 (quoting Elliott, 574 A.2d at
1380).

3.

We find further support for the WVSCA’s decision in an
examination of circuit courts of appeals’ almost universally
identical interpretation of Brady. See Virsnieks v. Smith, 521
F.3d 707, 716 (7th Cir. 2008) ("[T]o a very limited extent, ref-
erence to lower court holdings may be evidence of a rule
mandated implicitly by the Supreme Court."); Hawkins v.
Alabama, 318 F.3d 1302, 1309 (11th Cir. 2003). The Fourth
Circuit and many of its sister circuits have defined the term
"direct" used by the Brady Court by focusing on a dichotomy
between "direct" and "collateral" consequences of a plea. See
Cuthrell, 475 F.2d at 1366; see also Wilson v. McGinnis, 413
F.3d 196, 199 (2d Cir. 2005); Steele v. Murphy, 365 F.3d 14,
17 (1st Cir. 2004); United States v. Littlejohn, 224 F.3d 960,
965 (9th Cir. 2000); King v. Dutton, 17 F.3d 151, 152 (6th
Cir. 1994); United States v. Salmon, 944 F.2d 1106, 1130 (3d
Cir. 1991); George v. Black, 732 F.2d 108, 110 (8th Cir.
1984); United States v. Sambro, 454 F.2d 918, 922 (D.C. Cir.
1971) (en banc) ("We presume that the Supreme Court meant
what it said when it used the word ‘direct’; by doing so, it
excluded collateral consequences.").

In defining the two terms, this Court in Cuthrell held that
"[t]he distinction between ‘direct’ and ‘collateral’ conse-
quences of a plea, while sometimes shaded in the relevant
decisions, turns on whether the result represents a definite,
immediate and largely automatic effect on the range of the
defendant’s punishment." Cuthrell, 475 F.2d at 1366; see also
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 15
United States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir. 1989).
The Ninth Circuit noted that "where the consequence is con-
tingent upon action taken by an individual or individuals other
than the sentencing court . . . the consequence is generally
‘collateral.’" Littlejohn, 224 F.3d at 965. Courts have held that
collateral consequences of a plea include deportation, United
States v. Russell, 686 F.2d 35, 39 (D.C. Cir. 1982); the poten-
tial loss of federal benefits, United States v. Morse, 36 F.3d
1070, 1072 (11th Cir. 1994); the use of a conviction as an
aggravating circumstance in sentence for an unrelated charge,
King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994); the possibil-
ity of consecutive sentences, Wall v. United States, 500 F.2d
38, 39 (10th Cir. 1974) (per curiam); a subsequent mandatory
mental health commitment proceeding, George, 732 F.2d at
110; and the possibility of commitment for life as a sexually
dangerous person, Steele, 365 F.3d at 17. Furthermore, sev-
eral circuit courts of appeals have explicitly held that possible
subsequent classification of the defendant as a recidivist if he
committed a future felony is a collateral, and thus not a direct,
consequence of a plea. See, e.g., United States v. Salerno, 66
F.3d 544, 551 (2d Cir. 1995); Salmon, 944 F.2d at 1130. But
see Berry v. United States, 412 F.2d 189, 191-92 (3d Cir.
1969) (holding that the fact that the defendant was ineligible
for parole because of his status as a recidivist was a conse-
quence of which he must have been informed during the plea
colloquy).

Although these circuit court decisions do not ultimately
determine whether the WVSCA misapplied Supreme Court
precedent, "these prior decisions can and indeed must guide
us in determining what constitutes an unreasonable applica-
tion, under § 2254(d), of the rule that a guilty plea must be
knowing, intelligent and voluntary in order to be valid." Wil-
son, 413 F.3d at 199-200.

IV.

For the foregoing reasons, we conclude that the WVSCA’s
holding that recidivist proceedings were not a direct conse-
16 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
quence of Appleby’s guilty plea, and thus his plea was know-
ing and voluntary, was not contrary to or an unreasonable
application of established federal law as determined by the
Supreme Court. Accordingly, the judgment of the district
court is

AFFIRMED.

TRAXLER, Chief Judge, dissenting:

David Appleby pleaded guilty to two drunk-driving related
charges after being informed by the judge that the most he
could get would be six years. At sentencing the judge gave
him life imprisonment. Clearly established federal law
requires defendants to be informed of the direct consequences
of their decision to plead guilty, and the sentence for the
crime to which a defendant is pleading guilty is a direct con-
sequence of that guilty plea. I therefore believe that the deci-
sion of West Virginia’s Supreme Court of Appeals was
contrary to clearly established federal law as determined by
the United States Supreme Court and that the district court’s
denial of Appleby’s habeas petition should be reversed.
Accordingly, I respectfully dissent.

I.

A criminal defendant who pleads guilty waives many con-
stitutional rights, "including his privilege against compulsory
self-incrimination, his right to trial by jury, and his right to
confront his accusers. For this waiver to be valid under the
Due Process Clause, it must be an intentional relinquishment
or abandonment of a known right or privilege." McCarthy v.
United States, 394 U.S. 459, 466 (1969) (footnote and internal
quotation marks omitted). We may not presume a waiver to
be knowing and voluntary; the record must affirmatively dem-
onstrate that the defendant had "a full understanding of what
the plea connotes and of its consequence." Boykin v. Ala-
bama, 395 U.S. 238, 244 (1969).
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 17
The consequences of which the defendant must be aware
before pleading guilty are the "direct consequences" of the
plea. Brady v. United States, 397 U.S. 742, 755 (1970) (inter-
nal quotation marks omitted). Courts of appeal have generally
understood Boykin and Brady to mean that a defendant plead-
ing guilty must be aware of the direct consequences of the
plea but need not be informed of the indirect or collateral con-
sequences of a guilty plea. See United States v. Sambro, 454
F.2d 918, 922 (D.C. Cir. 1971) (per curiam) ("We presume
that the Supreme Court meant what it said when it used the
word ‘direct’; by doing so, it excluded collateral conse-
quences."); see also Virsnieks v. Smith, 521 F.3d 707, 715
(7th Cir. 2008) ("[A]lthough a defendant must be informed of
the direct consequences flowing from a [guilty] plea, he need
not be informed of collateral consequences."); Meyer v.
Branker, 506 F.3d 358, 367-68 (4th Cir. 2007) ("For a guilty
plea to be constitutionally valid, a defendant must be made
aware of all the ‘direct,’ but not the ‘collateral,’ consequences
of his plea."), cert. denied, 128 S. Ct. 2975 (2008).

The Supreme Court has yet to catalogue all of the conse-
quences of a guilty plea that it views as direct or indirect, but
there can be no real dispute that one of the direct conse-
quences of a guilty plea is the resulting sentence and that the
Constitution therefore requires that a defendant be informed
of the maximum sentence that could be imposed for the crime
to which he is pleading guilty. The Supreme Court said as
much in Boykin, and that has been the consistent view of the
circuit courts both before and after Boykin. See Boykin, 395
U.S. at 244 n.7 ("‘If these convictions [after a guilty plea] are
to be insulated from attack, the trial court is best advised to
conduct an on the record examination of the defendant which
should include, inter alia, an attempt to satisfy itself that the
defendant understands the nature of the charges, his right to
a jury trial, the acts sufficient to constitute the offenses for
which he is charged and the permissible range of sentences.’"
(emphasis added) (quoting Commonwealth ex rel. West v.
Rundle, 237 A.2d 196, 197-98 (Pa. 1968)); Burton v. Terrell,
18 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
576 F.3d 268, 271 (5th Cir. 2009) ("[T]he Due Process
[Clause] require[s] that a defendant be advised and understand
the consequences of a guilty plea. With respect to sentencing,
this means that the defendant must know the maximum prison
term and fine for the offense charged." (footnote and internal
quotation marks omitted)); Trueblood v. Davis, 301 F.3d 784,
786 (7th Cir. 2002) ("Due process as interpreted by the
Supreme Court requires that a defendant be advised of the
consequences of pleading guilty. Not necessarily all the con-
sequences, such as loss of the right to vote or of the right to
own a gun, or the effect on future sentences, but certainly the
maximum punishment that he faces if he is convicted in the
case at hand." (citations omitted)); United States v. Salmon,
944 F.2d 1106, 1130 (3d Cir. 1991) ("Due process requires
that a guilty plea be voluntary, that is, that a defendant be
advised of and understand the direct consequences of a plea.
The only consequences considered direct are the maximum
prison term and fine for the offense charged." (citation omit-
ted)); see also Hart v. Marion Corr. Inst., 927 F.2d 256, 259
(6th Cir. 1991); Worthen v. Meachum, 842 F.2d 1179, 1182
(10th Cir. 1988), overruled on other grounds by Coleman v.
Thompson, 501 U.S. 722 (1991); Trujillo v. United States,
377 F.2d 266, 269 (5th Cir. 1967); Kotz v. United States, 353
F.2d 312, 314 (8th Cir. 1965).

That the maximum sentence is a direct consequence of a
guilty plea is important in this case because of the particular
way in which the West Virginia recidivist statute operates.
The statute does not authorize the imposition of a separate
sentence for one who is found to be a habitual offender, but
instead requires that the enhanced sentence be imposed on the
underlying triggering felony. See State ex rel. Jorgenson v.
Boles, 141 S.E.2d 139, 141-42 (W. Va. 1965) ("[N]o authority
existed to impose a separate sentence for the principal
offense. The life sentence imposed under the recidivist statute
is given for the conviction of the principal offense." (emphasis
added)). Thus, the life sentence that Appleby received was the
sentence for the drunk-driving charges to which he pleaded
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 19
guilty. Appleby’s guilty plea therefore was not knowingly and
voluntarily made—he was informed before the plea was
accepted that six years was the maximum sentence he could
receive and was not informed that if the State elected to pro-
ceed under the recidivist statute, Appleby would be sentenced
to life imprisonment with the possibility of parole.1

Given that federal law clearly establishes that the maximum
sentence is a direct consequence of a guilty plea, the state
court erred by applying the test circuit courts have developed
to distinguish the collateral consequences of a guilty plea
from the direct consequences of the plea. See, e.g., Cuthrell
v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.
1973) ("The distinction between ‘direct’ and ‘collateral’ con-
sequences of a plea, while sometimes shaded in the relevant
1
I should note that compliance with what I believe to be the require-
ments of Due Process—informing a defendant pleading guilty of the pos-
sibility of sentencing under the recidivist statute—ought not be as difficult
as the State suggests it would be, notwithstanding the fact that the State
might not always know at the time a guilty plea is entered whether the
defendant qualifies for enhanced sentencing under the recidivist statute. In
the federal system, the defendant’s prior record generally is not known
until the presentence report is prepared, after the defendant pleads guilty.
When a defendant’s prior record could have an effect on his sentence
range, we nonetheless require the district judge before accepting a guilty
plea to inform the defendant of the possibility of an enhanced sentence,
see, e.g., United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008)
("[W]hile the district court at the time of the Rule 11 proceeding could not
have been certain about whether Hairston would qualify as an armed
career criminal, Rule 11 nonetheless required the court to anticipate the
possibility and explain to Hairston the sentence that would be applicable
if he had prior qualifying convictions."), and federal district courts have
not found this requirement too burdensome. State courts in West Virginia
should likewise be able to generally advise defendants of the possibility
of recidivist sentencing without much difficulty. As to this case, I note that
the possibility of a recidivist sentence was apparent from the indictment
itself, which alleges at least five prior driving-under-the-influence convic-
tions for Appleby in West Virginia. The state trial court thus should have
known simply by looking at the indictment that Appleby was eligible for
sentencing as a recidivist.
20 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL
decisions, turns on whether the result represents a definite,
immediate and largely automatic effect on the range of the
defendant’s punishment."). While the Cuthrell standard pro-
vides a useful roadmap in cases where it is unclear whether
a particular consequence is direct or collateral, it cannot be
used to reclassify as collateral a consequence of a guilty plea
that the Supreme Court has already characterized as direct.
That is, even if West Virginia’s recidivist proceedings fail
every prong of the Cuthrell standard and therefore could be
categorized as collateral under Cuthrell, it does not matter,
because the Supreme Court has held that the maximum sen-
tence is a direct consequence of a guilty plea. If the Supreme
Court had not spoken on the issue, then it would be proper to
apply the Cuthrell standard to resolve the question. But the
Supreme Court has spoken, and it has said that the maximum
sentence is a direct consequence of a guilty plea. This court
simply cannot apply a test of its own making to reach the
opposite conclusion.2

Appleby’s sentence may have been the product of a layered
and more complicated procedure than in the typical criminal
case, but the material facts are that Appleby was sentenced to
life on the charges to which he pleaded guilty after being told
that he could be sentenced to no more than six years. Clearly
established federal law requires that defendants be informed
2
Moreover, even if it were proper to apply the Cuthrell standard, I do
not believe that Cuthrell compels us to characterize West Virginia’s recid-
ivist proceedings as collateral. While a recidivist proceeding is perhaps
technically separate from the underlying criminal case, the recidivist pro-
ceeding is, in function and effect, little more than a continuation of the
original sentencing. And while the state prosecutor has discretion in decid-
ing whether to seek a recidivist sentence in any given case, the resulting
sentence is automatic once the prosecutor decides to proceed under the
recidivist statute. See W. Va. Code. § 61-11-18(c) ("When it is determined
. . . that such person shall have been twice before convicted in the United
States of a crime punishable by confinement in a penitentiary, the person
shall be sentenced to be confined in the state correctional facility for life."
(emphasis added)).
 APPLEBY v. WARDEN, NORTHERN REGIONAL JAIL 21
of the maximum penalty to which their guilty plea exposes
them, and I am aware of no basis for excepting from this rule
recidivist sentences like the one at issue in this case.3 Apple-
by’s guilty plea therefore was not knowingly and voluntarily
made, and the state court’s decision rejecting his Due Process
claims "was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.A
§ 2254(d)(1) (West 2006); see Williams v. Taylor, 529 U.S.
362, 405 (2000) (explaining that a state court’s decision is
contrary to clearly established federal law "if the state court
arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law" or "confronts facts that
are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite"); Robinson
v. Polk, 438 F.3d 350, 355 (4th Cir. 2006) ("A state court
adjudication is an unreasonable application of federal law
when the state court . . . fails to apply the principle of a prece-
dent in a context where such failure is unreasonable. . . ."
(internal quotation marks omitted)).

II.

Because I believe that the state court’s opinion rejecting
Appleby’s Due Process claim was contrary to clearly estab-
lished federal law, I respectfully dissent from the majority’s
refusal to grant Appleby’s petition for a writ of habeas corpus.

3
The Supreme Court rejected various constitutional challenges to West
Virginia’s recidivist statute in Oyler v. Boles, 368 U.S. 448 (1962), a pre-
Boykin case. There was, however, no guilty-plea challenge in Oyler, and
the Court was not called upon to consider what kind of information must
be given to a defendant pleading guilty to a crime that makes him eligible
for sentencing as a recidivist.