Pethtel v. Ballard

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

SHAWN PETHTEL, 
Petitioner-Appellant,
v.  No. 09-6075
WARDEN DAVID BALLARD,
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(1:07-cv-00074-IMK-JSK)

Argued: May 12, 2010

Decided: August 18, 2010

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Shedd and Judge Duncan joined.

COUNSEL

ARGUED: Steven Harris Goldblatt, Director, GEORGE-
TOWN 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: Char-
2 PETHTEL v. BALLARD
lotte Garden, Supervising Attorney, Kate Bushman, Supervis-
ing Attorney, Edward W. Duffy, Student Counsel, Elena M.
Romerdahl, Student Counsel, GEORGETOWN UNIVER-
SITY LAW CENTER, Appellate Litigation Program, Wash-
ington, D.C., for Appellant. Darrell V. McGraw, Jr., Attorney
General, Charleston, West Virginia, for Appellee.

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 con-
duct, two counts of possession with the intent to deliver a con-
trolled 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 con-
spiracy 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
 PETHTEL v. BALLARD 3
to West Virginia for arraignment; however, he was returned
to Ohio shortly after his arraignment and before final disposi-
tion 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 Vir-
ginia," 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, film-
ing 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
1
The IADA is a compact among 48 states, the District of Columbia, and
the federal government with the aim of establishing procedures for resolu-
tion of one jurisdiction’s outstanding criminal charges against another
jurisdiction’s prisoner. See New York v. Hill, 528 U.S. 110, 111 (2000).
West Virginia is a participating state, see W. Va. Code Ann. §§ 62-14-1
to 62-14-7 (West 2010), as is Ohio. See Ohio Revised Code Ann.
§§ 2963.30 to 2963.35 (West 2010).
The trial before return provision requires that the prisoner be tried on
the charges in the receiving state before he is returned to the sending state.
The remedy for violation of the provision is dismissal with prejudice of
any untried charges. See W. Va. Code § 62-14-1, Art. III(d).
4 PETHTEL v. BALLARD
charges against the petitioner after his rights under the
[IADA] were violated." (J.A. 55).2 Citing Alabama v. Boze-
man, 533 U.S. 146 (2001), Pethtel contended that case "re-
jected 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. Boze-
man 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 pub-
lished 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 Con-
stitution of West Virginia or the Constitution of the United
States." Pethel3 v. McBride, 638 S.E.2d 727, 739 (W.Va.
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
2
Pethtel also argued that he received ineffective assistance of counsel
and that his sentence was unconstitutionally disproportionate. However, he
does not raise those issues in this appeal.
3
We note that Appellant’s name was spelled differently in the WVSCA
opinion.
 PETHTEL v. BALLARD 5
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’ provi-
sion 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 pro-
tection 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 recom-
mendation, 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 nonethe-
less 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
4
Pethtel also made the argument that he was denied effective assistance
of counsel; however, that issue is not raised in this appeal.
6 PETHTEL v. BALLARD
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 viola-
tion, 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] con-
sideration 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 (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 ade-
quate 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 viola-
tion is the type of fundamental defect that is redressable, even
5
This was the first explicit mention of a due process claim during Peth-
tel’s proceedings in either state or federal court.
 PETHTEL v. BALLARD 7
when the underlying statutory claim is not generally review-
able 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 cogniza-
ble on habeas corpus review, he contends that the Supreme
Court’s decisions in Reed v. Farley, 512 U.S. 339 (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 "aggra-
vating" 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 explana-
tion, even though the validity of the claim was apparent,"
(Appellant’s Br. 33); and (3) due to "the WVSCA’s unreason-
able and incorrect application of established federal and state
law on habeas review." (Appellant’s Br. 37).

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).

It is a fundamental principle of habeas review that not
"every asserted error of law can be raised on a [§ 2254]
motion." Davis v. United States, 417 U.S. 333, 346 (1974).
6
See Etheridge v. Norfolk & Western Ry. Co., 9 F.3d 1087, 1090 (4th
Cir. 1993) ("A decision of a panel of this court becomes the law of the cir-
cuit and is binding on other panels unless it is overruled by a subsequent
en banc opinion of this court or ‘a superseding contrary decision of the
Supreme Court.’" (quoting Busby v. Crown Supply, Inc., 896 F.2d 833,
840-41 (4th Cir. 1990))).
8 PETHTEL v. BALLARD
Instead, "habeas review is available to check violations of
federal laws when the error qualifies as ‘a fundamental defect
which inherently results in a complete miscarriage of justice
[or] an omission inconsistent with the rudimentary demands
of fair procedure.’" Reed, 512 U.S. at 348 (quoting Hill v.
United States, 368 U.S. 424, 428 (1962) (alteration in origi-
nal)).

This standard arose from Hill v. United States, 368 U.S.
424 (1962), in which the Supreme Court held the failure to
ask a defendant if he wished to exercise the right of allocution
was not cognizable on habeas review. The Court provided the
following explanation: "It is an error which is neither jurisdic-
tional nor constitutional. It is not a fundamental defect which
inherently results in a complete miscarriage of justice, nor an
omission inconsistent with the rudimentary demands of fair
procedure. It does not present ‘exceptional circumstances
where the need for the remedy afforded by the writ of habeas
corpus is apparent.’" Id. at 428 (quoting Bowen v. Johnston,
306 U.S. 19, 27 (1939)).

The Supreme Court again addressed the lack of cognizable
error on habeas review in United States v. Timmreck, 441 U.S.
780 (1979). The Court stated that only an error that "resulted
in a ‘complete miscarriage of justice’ or in a proceeding
inconsistent with the rudimentary demands of fair procedure’"
is reviewable in a habeas proceeding. Id. at 784 (quoting Hill,
368 U.S. at 428). As to whether any other claim could be
reviewed, the Court declined to consider that issue: "As in
Hill, we find it unnecessary to consider whether § 2255 relief
would be available if a violation of Rule 11 occurred in the
context of other aggravating circumstances." Timmreck, 441
U.S. at 784-85.

Applying Hill and its progeny, the Bush Court found that
"a violation of the trial-before-return provisions of article IV(e)7
7
The anti-shuttling or trial before return provisions of Article IV and
Article III of the IADA are materially similar to one another; in fact, at
one point the Bush Court comingled the two provisions. See Bush, 659
F.2d at 408 n.4.
 PETHTEL v. BALLARD 9
[of the IADA] does not constitute a fundamental defect enti-
tling a petitioner to habeas relief under section 2254." 659
F.2d at 408. This is because "only those statutory rights of a
fundamental nature closely related to constitutionally secured
rights to fair prosecution and adjudication should be subject
to vindication by collateral review," and "because [the IADA
provision] does not involve any fundamental right historically
considered critical to the protection of the criminal accused
against unfair prosecution and trial by the state, [a violation]
is not . . . subject to collateral review." Id. at 409. Therefore,
the clear Fourth Circuit precedent set forth by Bush’s
unequivocal holding directs that a violation of the IADA’s
trial before return provision is not cognizable on federal
habeas review.

The Supreme Court in Reed addressed a similar question to
that in Bush and the case at bar as to whether the so-called
"speedy trial" provision of the IADA8 "may [be] enforce[d]
. . . in a federal habeas corpus action under 28 U.S.C. § 2254."
Reed, 512 U.S. at 342. In that case, the state of Indiana vio-
lated the IADA by failing to commence the trial of a prisoner
in custody for 54 days beyond the 120-day limit, although the
defendant "registered no objection to the trial date at the time
it was set, and suffered no prejudice attributable to the
delayed commencement." Id. Citing Hill and Davis, the Reed
Court held that such a violation was not an "error [that] quali-
fies as ‘a fundamental defect which inherently results in a
complete miscarriage of justice [or] an omission inconsistent
with the rudimentary demands of fair procedure.’" Id. at 348
(quoting Hill, 368 U.S. at 428). After noting that Hill and
Timmreck had "left open the question whether collateral relief
would be available if a violation of [federal law] occurred in
the context of other aggravating circumstances," Reed, 512
8
The speedy trial provision "provides that trial of a transferred prisoner
‘shall be commenced within one hundred and twenty days of the arrival
of the prisoner in the receiving State, but for good cause shown in open
court . . . .’" Reed, 512 U.S. at 341 (quoting IADA Article IV(c)).
10 PETHTEL v. BALLARD
U.S. at 350 (quoting Timmreck, 441 U.S. at 784-85), the plu-
rality opinion concluded "Reed’s case similarly lacks ‘aggra-
vating circumstances’ rendering ‘the need for the remedy
afforded by the writ of habeas corpus . . . apparent.’" Reed,
512 U.S. at 350 (quoting Hill, 368 U.S. at 428).

Although this language in Reed ostensibly recognizes some
exception to the bar on collateral review where a violation of
federal law "occurred in the context of other aggravating cir-
cumstances," Hill, 368 U.S. at 429, the Court never expressly
adopted that exception or defined its parameters. Indeed,
Reed’s plurality and concurring opinions disagreed about
what would constitute "aggravating circumstances." See Reed,
512 U.S. at 357 (Scalia, J., concurring) ("As for Hill and Tim-
mreck’s reservation of the question whether habeas would be
available ‘in the context of other aggravating circumstances,’
that seems to me clearly a reference to circumstances that
cause additional prejudice to the defendant, thereby elevating
the error to a fundamental defect or a denial of rudimentary
procedural requirements—not a reference to circumstances
that make the trial judge’s behavior more willful or egre-
gious." (emphasis omitted)). We thus conclude that Reed does
not provide a sufficient basis to allow us to circumvent our
clear precedent in Bush and conclude that Pethtel’s asserted
IADA violation should be cognizable on habeas review.

Nor did the Supreme Court’s holding in Bozeman call Bush
into question. Bozeman was a direct appeal from state court
and involved no issues of collateral review. Instead, Bozeman
analyzed the question of what constitutes a violation of the
trial before return provision of the IADA; namely, whether a
de minimis exception exists. Bozeman, 533 U.S. at 153. The
Bozeman Court concluded that no de minimis exception
exists, as "the language of the [IADA] militates against an
implicit exception, for it is absolute. It says that [when a vio-
lation occurs], the indictment, information, or complaint ‘shall
not be of any further force or effect, and the court shall enter
 PETHTEL v. BALLARD 11
an order dismissing the same with prejudice." Id. (quoting
IADA Art. IV(e)) (emphasis added)).

Pethtel argues that Bozeman abrogates Bush insofar as it
holds that there exist no insignificant violations of the IADA.
However, Bozeman dealt with a matter of statutory construc-
tion and never addressed whether such nonconstitutional error
unrelated to the underlying criminal charge could be "a funda-
mental defect which inherently results in a complete miscar-
riage of justice, nor an omission inconsistent with the
rudimentary demands of fair procedure." Hill, 368 U.S. at
428. The resolution of the question in Bozeman has no nexus
to the standards relevant in a habeas proceeding as evidenced
by the understandable absence in Bozeman of any discussion
of collateral review or the case precedent represented by Hill,
Reed, and similar cases. Obviously, there was no basis for
such a discussion because the direct appeal issue of the stat-
ute’s construction would have no connection to the standards
in habeas review. Accordingly, we find that Bozeman did not
call Bush into question, as it dealt with a different question
entirely.

Although we recognize West Virginia likely did violate the
IADA in this case, we are constrained by the clear precedent
set by this Court’s decision in Bush, which remains control-
ling and is dispositive of this case. See United States v. Col-
lins, 415 F.3d 304, 311 (4th Cir. 2005). Thus, the district
court did not err in holding a violation of the trial before
return provision of the IADA was not cognizable on habeas
review.

B.

Pethtel next argues that, even if an IADA violation is not
cognizable on habeas review in its own right, it is reviewable
if "the state courts’ refusal to enforce the IADA violated
clearly established principles of fundamental due process."
(hereinafter "due process claim.") (Appellant’s Br. 39). Peth-
12 PETHTEL v. BALLARD
tel asserts that two of his liberty interests were denied arbitrar-
ily in violation of his due process rights: his right to relief
under the IADA and his "right to a meaningful appeal of his
conviction and sentence of imprisonment." (Appellant’s Br.
40). He alleges that, although West Virginia’s appeals process
"when functioning properly" may be sufficient, in this case it
was "reduced to a meaningless ritual that was fundamentally
unfair." (Appellant’s Br. 44) (emphasis omitted). Specifically,
Pethtel asserts that the West Virginia circuit court "made find-
ings of fact that were entirely without support in the record,"
(Appellant’s Br. 45); and that "the WVSCA arbitrarily refused
Pethtel’s petition for direct appeal, despite the fact that the
[IADA] violation should have been readily apparent." (Appel-
lant’s Br. 46).

Although the district court did certify this question for
appeal, we find that Pethtel has waived his due process claim
by failing to raise the issue in state court. "[A] federal habeas
court may consider only those issues which have been ‘fairly
presented’ to the state courts." Matthews v. Evatt, 105 F.3d
907, 911 (4th Cir. 1997) (citing Picard v. Connor, 404 U.S.
270, 275-78 (1971)). Although the claims presented need not
be "identical," see Ramdass v. Angelone, 187 F.3d 396, 409
(4th Cir. 1999), the petitioner must present the "‘substance’ of
his federal habeas corpus claim." Anderson v. Harless, 459
U.S. 4, 6 (1982) (per curiam). Presenting the "substance" of
the claim requires that the claim "be presented face-up and
squarely; the federal question must be plainly defined.
Oblique references which hint that a theory may be lurking in
the woodwork will not turn the trick." Mallory v. Smith, 27
F.3d 991, 995 (4th Cir. 1994) (quoting Martens v. Shannon,
836 F.2d 715, 717 (1st Cir. 1988)). "In other words, fair pre-
sentation contemplates that ‘both the operative facts’ and the
‘controlling legal principles’ must be presented to the state
court." Matthews, 105 F.3d at 911 (quoting Verdin v.
O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992)).

This Court’s decision in Ramdass is instructive on this
issue. The petitioner in that case made the claim in his state
 PETHTEL v. BALLARD 13
habeas petition that "his rights under the state statute [at issue]
had been denied." Ramdass, 187 F.3d at 409. However, on
federal habeas review, Ramdass also made a "due process
claim for the arbitrary enforcement of [the] state statute." Id.
We found that Ramdass’ "due process claim for the arbitrary
enforcement of a state statute was defaulted because . . . Ram-
dass did not make the further argument, necessary to make the
claim cognizable on federal habeas review, that this denial
constituted a violation of his right to due process under the
Fourteenth Amendment." Id. Analogously, while Pethtel pre-
sented the core IADA claim to the WVSCA, Pethtel did not
make the argument that his rights were deprived arbitrarily in
violation of due process.

Therefore, we find that Pethtel did not "fairly present" the
due process claim to the state court. Although the underlying
facts for the IADA claim and the due process claim were the
same, the "controlling legal principles" of the due process
claim—whether the state courts arbitrarily deprived Pethtel of
his due process rights and whether he received meaningful
appellate review—were never raised in state court. See Mal-
lory, 27 F.3d at 994 (holding that "[a] habeas petitioner can-
not simply apprise the state court of the facts underlying a
claimed constitutional violation, the petitioner must also
explain how those alleged events establish a violation of his
constitutional rights") (internal citation omitted).9

C.

Finally, Pethtel "challenges the constitutionality of the
West Virginia system of appellate review under which he was
denied relief," (Appellant’s Br. 48), although he recognizes
that this panel is bound by Billotti v. Legursky, 975 F.2d 113
(4th Cir. 1992).
9
The conclusion that Pethtel has waived this claim is underscored by his
failure to raise the issue not only in state court, but also in federal court.
A recognizable due process argument did not appear until raised sua
sponte by the district court in the order granting the COA.
14 PETHTEL v. BALLARD
Applicable Fourth Circuit precedent clearly holds that "the
appeals procedures afforded by West Virginia [give a defen-
dant] an adequate opportunity to present his claims." Billotti,
975 F.2d at 115. Although the West Virginia "Supreme Court
of Appeals provides the sole avenue of appellate review [and]
[t]he decision to grant an appeal is discretionary with that
court[,] . . . the right to petition for appeal . . . is accompanied
by an array of procedural protections." Id. Therefore, West
Virginia’s procedures "serve the needs of the state which
adopted them, and . . . they afford an ample measure of proce-
dural fairness to criminal defendants seeking an appeal." Id.
at 116.

III.

For the foregoing reasons we hold that, consistent with this
Court’s precedent as set forth in Bush, a violation of the trial
before return provision of the IADA is not cognizable on
habeas review. We further hold that Pethtel has waived his
due process claim. Therefore, the judgment of the district
court is

AFFIRMED.