Timothy Austin v. Marvin Plumley

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6661

TIMOTHY JARED AUSTIN,

Petitioner – Appellant,

v.

MARVIN PLUMLEY, Warden, 1

Respondent - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:11-cv-00892)

Argued: January 28, 2014 Decided: April 7, 2014

Before KING, SHEDD, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. Judge
Shedd wrote a dissenting opinion.

ARGUED: Steven Strasberg, UNIVERSITY OF GEORGIA SCHOOL OF LAW,
Athens, Georgia, for Appellant. Elbert Lin, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia,
for Appellee. ON BRIEF: Erica Joan Hashimoto, Associate
Professor, Victoria Cuneo, Third Year Law Student, Appellate

1
Marvin Plumley is substituted as Respondent for his
predecessor, Adrian Hoke, as Warden of the Huttonsville, West
Virginia, Correctional Center. See Fed. R. App. P. 43(c)(2).
Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens,
Georgia, for Appellant. Patrick Morrisey, Attorney General,
Christopher S. Dodrill, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Timothy Jared Austin (“Appellant”) appeals the

district court’s dismissal of his federal habeas petition, filed

against the Warden of the Huttonsville, West Virginia

Correctional Center (hereinafter, the “State”), pursuant to 28

U.S.C. § 2254. While serving a term of incarceration in the

West Virginia prison system for breaking and entering, Appellant

walked away from an inmate road crew and subsequently pled

guilty to attempted escape.

At his sentencing for the attempted escape conviction,

the West Virginia court (the “State Sentencing Court”) sentenced

Appellant to a term of imprisonment that was neither purely

concurrent nor purely consecutive to his original sentence.

Appellant filed an expedited motion to correct that sentence

with the State Sentencing Court, and when it was not ruled upon

for nearly 50 days, Appellant filed a petition for writ of

mandamus, or in the alternative, an original petition for habeas

corpus to the Supreme Court of Appeals of West Virginia (the

“State Supreme Court”). That petition asked the State Supreme

Court to direct the State Sentencing Court to act on Appellant’s

motion to correct the sentence, or to rescind his sentence as

violative of the Due Process Clause. Four days after the State

Sentencing Court received a copy of the petition, it entered an

amended sentencing order, changing Appellant’s sentence to a

3
purely consecutive one, thereby extending Appellant’s time in

prison.

Appellant appealed the amended sentencing order to the

State Supreme Court, arguing that he was entitled to a

presumption of judicial vindictiveness. The State Supreme

Court, however, found that in the amended sentencing order, the

State Sentencing Court only meant to clarify its original intent

in sentencing Appellant, and, thus, the presumption did not

attach. In considering Appellant’s subsequent federal habeas

petition, the district court concluded that this finding was not

based on an unreasonable determination of the facts; therefore,

a presumption of judicial vindictiveness did not arise.

We disagree. The State Supreme Court’s decision was

based on an unreasonable determination of the facts in the

record, and the unique facts presented in this case give rise to

a presumption of vindictiveness, which the State fails to rebut.

As such, we vacate the judgment of the district court, and

remand with instructions to grant a conditional writ of habeas

corpus.

I.

A.

State Proceedings

In 2004, Appellant was convicted in Wood County, West

Virginia, of breaking and entering and was sentenced to one to

4
fifteen years’ imprisonment, beginning December 29, 2004.

Appellant was to be eligible for parole in March 2010. While

serving the breaking and entering sentence, Appellant walked

away from an inmate road crew, was arrested two days later, and

charged with escape. On September 24, 2009, Appellant pled

guilty to the lesser-included offense of attempted escape, which

carried a sentence of one to three years’ imprisonment.

1.

Original Sentence

On November 12, 2009, Appellant was sentenced for the

attempted escape by the State Sentencing Court in McDowell

County, West Virginia. At the sentencing hearing, the State

Sentencing Court first asked for Appellant’s discharge date on

the breaking and entering conviction, to which Appellant’s

counsel responded, “December 2014, he believes, Your Honor.”

J.A. 13. 2 The court then asked, “[W]hen is he eligible for

parole again?” to which counsel responded, “This March [i.e.,

March 2010].” Id. The State Sentencing Court then explained,

[I]f I remember correctly, you were out on a work
crew. . . . And you just walked off. That’s not
good. It’s not the type of jail escape that we see in
the movies where there’s guns blazing and everything
of that nature, and it’s not a jail escape where
somebody has tunneled under to get out, but this is

2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

5
 still bad because you have breached the trust, and
when you breach a trust, it makes it harder on your
fellow inmates because the correctional facility may
take the position that, we’re just not going to do
this anymore, and that’s not good. That’s not good.

Id. The court continued,

Now, I’ve got several ways that I can sentence you. I
can sentence you to a one to three, starting today
[November 12, 2009], or I can sentence you to a one to
three starting when you’re discharged, but I’m going
to split the baby in half. I’m going to sentence you
to a one to three, and your one to three is going to
begin March of 2010, which means you’re not going to
get out on parole in March, but you will start your
one year then.

Now, why am I doing it that way? Well, I’m sure
you’ve suffered some punishment by losing good time
and stuff because of this but because that’s not a
good thing to do, to walk off. Now, had you done
those other ways and there had been a violent type
jail escape or whatever, I would have put that at the
end of your sentence, but it wasn’t. If I remember,
you just walked off in the Berwind area and spent two
or three days out in the woods, and they got you in
the Town of War, and for that, you’ve already received
some punishment because of your loss of good time and
probably, loss of the possibility of being paroled,
but I do think you should serve some time for it; so,
by making [the sentence] beginning in March of 2010,
which is about 4 or 5 months from now and not giving
you any back credit, that’s probably going to cost you
-- well, it will cost you your opportunity for parole
because you won’t be eligible then until March of
2011, and if the parole board wants to parole you on
both of those, that’s fine, and if not, well, you’ll
remember that the next time you go for a little
stroll. Okay?

Id. at 15-16 (emphases supplied). The sentencing order, which

was entered November 23, 2009, correspondingly stated,

It is, therefore, ORDERED that the defendant . . . be
sentenced to the custody of the Commissioner of the

6
 West Virginia Division of Corrections for an
indeterminate period of not less than one (1) year nor
more than three (3) years at an appropriate
correctional facility designated by said Commissioner
and no fine. It is further ORDERED that the defendant
serve this sentence beginning March 2010.

Id. at 20 (emphasis supplied).

2.

Motion to Correct Sentence

On August 31, 2010, nearly six months after he began

serving his sentence on the attempted escape conviction,

Appellant filed a motion with the State Sentencing Court to

correct that sentence pursuant to West Virginia Rule of Criminal

Procedure 35(a). 3 Appellant contended,

the Court was under the misapprehension that it could
defer the start of the instant sentence until
Defendant discharged his previous sentence, [but] the
Court’s sentencing discretion was limited [to] whether
Defendant’s instant one-to-three (1-3) year sentence
would run concurrent with or consecutive to his
previous one-to-fifteen (1-15) year sentence[.]

. . .

[A]t the November 12, 2009, Sentencing Hearing
Defendant was already eligible for parole
consideration on the [breaking and entering] sentence
. . . . Therefore, by delaying Defendant’s effective
sentence date . . . to March 1, 2010, three and a half
(3 1/2) months past his actual sentence date of

3
This rule provides, “The court may correct an illegal
sentence at any time and may correct a sentence imposed in an
illegal manner within the time period provided herein for the
reduction of sentence [i.e., within 120 days after the sentence
is imposed].” W. Va. R. Crim. P. 35(a).

7
 November 12, 2009, the [State Sentencing Court]
increased Defendant’s minimum term on the instant
offense to fifteen and a half (15 1/2) months.

Def.’s Mot. for Summ. J., Ex. 5, Austin v. Hoke, No. 1:11-cv-892

(S.D. W. Va. Nov. 10, 2011; filed Sept. 24, 2012), ECF No. 27-1

at 52-53 (first emphasis supplied, others in original).

Attached to the motion was a proposed amended sentencing order,

which ostensibly set forth a purely concurrent sentence and an

effective sentencing date of November 12, 2009, rather than

March 2010. Appellant also asked that the motion be expedited

because he was scheduled to meet with the parole board in

November 2010.

3.

Amended Sentence

By mid-October 2010, when the motion had not yet been

ruled upon, Appellant submitted a “Petition for Writ of Mandamus

or in the alternative Original Petition for Writ of Habeas

Corpus” (the “Petition”) to the State Supreme Court, which was

formally filed on October 19, 2010. The State Sentencing Court

received a copy of the Petition on October 18, 2010, and four

days later, on October 22, 2010 -- before the State Supreme

Court ruled on the Petition -- the State Sentencing Court issued

an order amending the original sentence (the “Amended Sentencing

Order”), which stated,

8
 On the 18th day of October, 2010, the undersigned
Judge received a copy of a Writ of Mandamus or in the
alternative Original Petition for Writ of Habeas
Corpus [and a] proposed Amended Sentencing Order.
After reviewing this matter, it is clear to this Court
that an Amended Scheduling [sic] Order is needed to
clarify the original Sentencing Order entered on
November 23, 2009. . . . It was the intent of this
sentencing court that the sentence imposed on November
12, 2009 be served consecutively with the unrelated
sentence the defendant was already serving on November
12, 2009. It was the intent of the sentencing court
to give the defendant credit for time served from his
arraignment to the date of sentencing and that the
balance of his sentence be served consecutively to the
sentence he was already serving in an unrelated
matter.

J.A. 22 (emphasis supplied). The State Supreme Court then

denied the Petition on November 22, 2010, simply stating, “the

Court is of opinion that a rule should not be awarded, and the

writ prayed for by the petitioner is hereby refused.” Austin,

No. 1:11-cv-892, ECF No. 27-1 at 57.

4.

Appeal of Amended Sentence

Appellant appealed the Amended Sentencing Order to the

State Supreme Court. Appellant argued that after he “invoked

lawful remedies to correct an illegal sentence,” the State

Sentencing Court “increased [his] aggregate sentence based on

purported, but unreasoned, judicial intent that is controverted

by the . . . record, thereby creating a presumption of judicial

vindictiveness . . . .” Austin, No. 1:11-cv-892, ECF No. 27-1

9
at 83. On October 25, 2011, the State Supreme Court rejected

the appeal, explaining,

It is clear from the amended sentencing order that
some confusion arose from the language of the original
sentencing order. In clarifying its intention, the
circuit court stated in the amended sentencing order
that, “[i]t was the intent of the sentencing court
that the sentence imposed on November 12, 2009[,] be
served consecutively with the unrelated sentence that
the [petitioner] was already serving on November 12,
2009.” . . . It is from the resulting confusion
that petitioner finds the basis for his argument that
his sentence was impermissibly increased by thirty-
three months upon entry of the amended sentencing
order. However, this Court finds no merit in
petitioner’s argument. Had the circuit court
originally intended for these two sentences to run
concurrently, it is hard to imagine how the subsequent
sentence would have punished the petitioner or served
to deter him from future escapes. It is clear from
the record that the circuit court intended for the
sentences to run consecutively, and that the sentence
was not impermissibly increased. As such, the
petitioner’s due process rights were not violated by
the entry of the amended sentencing order.

J.A. 25 (emphasis supplied).

B.

Federal Proceedings

Two weeks after the State Supreme Court’s decision, on

November 10, 2011, Appellant filed a habeas petition pursuant to

28 U.S.C. § 2254 in the United States District Court for the

Northern District of West Virginia. The matter was transferred

to the Southern District of West Virginia, and the State filed a

motion for summary judgment on September 24, 2012. The habeas

petition and the motion were referred to the federal magistrate

10
judge. The magistrate judge issued a proposed findings and

recommendation (“PF&R”) on December 4, 2012, recommending that

Appellant’s petition be granted and the State’s motion be

denied. The PF&R explained,

Petitioner argues that the West Virginia Supreme Court
erred in finding that “[i]t is clear from the record
that the circuit court intended for the sentences to
run consecutively.” Based on a review of the
[pertinent] documents, the undersigned finds that
Petitioner has rebutted the presumption of correctness
by clear and convincing evidence. During Petitioner’s
sentencing hearing conducted on November 12, 2009, the
[State Sentencing Court] specifically ordered
Petitioner’s escape sentence to begin in March, 2010.
The record reveals that the [State Sentencing Court]
ordered Petitioner’s escape sentence to begin in
March, 2010, after being advised that Petitioner’s
discharge date for his prior sentence was December,
2014. The [State Sentencing Court] explained that if
Petitioner’s escape had involved violence, the Court
would have directed Petitioner’s escape sentence to
run consecutive to his prior sentence.

J.A. 49 (internal citations and footnote omitted). Then, the

magistrate court explained that Appellant met the requirements

for the presumption of vindictiveness:

A presumption of vindictiveness arises when “there is
a ‘reasonable likelihood’ that an unexplained increase
in sentence is the product of actual vindictiveness on
the part of the sentencing authority.” [Alabama v.]
Smith, 490 U.S. 794 [(1989)]. In the instant case, the
[State Sentencing Court] merely explained that an
Amended Sentencing Order was necessary “to clarify the
original Sentencing Order entered on November 23,
2009.” The [State Sentencing Court], however, failed
to adequately explain the increase in Petitioner’s
sentence. Accordingly, the undersigned finds that
Petitioner’s amended sentence gives rise to a
presumption of vindictiveness as there is a
“reasonable likelihood” that the unexplained increase

11
 is the product of actual vindictiveness on the part of
the sentencing authority.

Id. at 52-53 (internal citation omitted). The magistrate court

also considered whether the State could rebut this presumption,

and concluded that it could not. See id. at 53-54.

The district court, however, disagreed. After the

State filed objections to the PF&R, the district court reviewed

the matter and concluded the PF&R did not take into account the

level of deference owed to the State Supreme Court’s decision.

The district court explained,

It is fair to say that the record contains conflicting
evidence as to the trial court’s intentions with
respect to Austin’s sentence and is susceptible to
several different interpretations. One of those
possible interpretations -- that the [State Sentencing
Court] intended for Austin’s sentence on the Attempted
Escape to run consecutive to his undischarged term of
imprisonment -- “is fairly and adequately supported by
the record, and is therefore entitled to section
2254’s presumption of correctness.” Lenz v.
Washington, 444 F.3d 295, 299 (4th Cir. 2006).

. . .

Furthermore, [Appellant] has not shown that the
[S]tate [Supreme] [C]ourt’s determination “was based
on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.” Merzbacher [v. Shearin], 706 F.3d [356,]
367 [(4th Cir. 2013)]. Given that there was some
evidence that the [State] [S]entencing [C]ourt
intended to impose a consecutive sentence, this court
cannot conclude that the [S]tate [Supreme] [C]ourt’s
determination in this regard was unreasonable.

J.A. 64, 65. The district court also disagreed that the

presumption of vindictiveness was met, stating,

12
 [W]hile his Rule 35 motion remained pending,
[Appellant] filed a petition for writ of mandamus with
the [State Supreme Court]. The amended sentencing
order was issued prior to the higher court ruling on
the mandamus petition. Accordingly, there was no
reversal or similar event “prod[ding] the sentencing
court into a posture of self-vindication.”

Id. at 67 (quoting Texas v. McCullough, 475 U.S. 134, 139

(1986)). Therefore, the district court dismissed Appellant’s

petition. 4

Appellant filed a timely notice of appeal and a

petition for certificate of appealability, which this court

granted on September 6, 2013.

II.

We review de novo a district court’s denial of relief

in habeas corpus proceedings under 28 U.S.C. § 2254. See Wolfe

v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009). Under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

our review of state court adjudications is constrained to

decisions that were either “contrary to, or involved an

unreasonable application of, clearly established Federal law,”

or “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1), (2).

4
The district court did not specifically rule on the
State’s motion for summary judgment.

13
 III.

Appellant filed his habeas petition pursuant to 28

U.S.C. § 2254, which provides,

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
--

(1) 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

(2) 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.

28 U.S.C. § 2254(d). Appellant’s first argument pertains to

subsection (d)(2), above: He contends the State Supreme Court

rendered its decision based on an unreasonable determination of

the facts in light of the evidence presented to it. Second, he

argues that he is entitled to a presumption of judicial

vindictiveness, and the State has not rebutted this presumption.

We will address each argument in turn.

A.

1.

AEDPA creates a presumption that factual

determinations made by the state court are correct. See 28

U.S.C. § 2254(e)(1). Further, “[t]he applicant shall have the

14
burden of rebutting the presumption of correctness by clear and

convincing evidence.” Id. We recently held, “‘[T]o secure

habeas relief, petitioner must demonstrate that a state court’s

finding . . . was incorrect by clear and convincing evidence,

and that the corresponding factual determination was

“objectively unreasonable” in light of the record before the

court.’” Merzbacher v. Shearin, 706 F.3d 356, 364 (4th Cir.

2013) (quoting Miller–El v. Cockrell, 537 U.S. 322, 348 (2003)).

The Supreme Court has explained that on federal habeas review,

we must uphold a state court decision when, “[r]eviewing all of

the evidence,” the state court’s decision “even if . . .

debatable, . . . is not unreasonable.” Wood v. Allen, 558 U.S.

290; 130 S. Ct. 841, 850 (2010).

In Taylor v. Grounds, the Seventh Circuit concluded

that the Illinois Supreme Court reached a factual determination

that was objectively unreasonable in light of the record. See

721 F.3d 809, 820 (7th Cir. 2013). Taylor filed a habeas

petition based on the argument that his trial counsel, who also

represented his co-defendant brother, operated under a conflict

of interest. In rejecting Taylor’s claim, the Illinois Supreme

Court relied upon the trial court’s “purported implicit factual

finding that [the attorney] rejected [] three witnesses [that

would have been helpful to Taylor but detrimental to his

brother] for strategic reasons unrelated to the conflict of

15
interest . . . .” Id. at 821. The state supreme court

acknowledged that the trial court “made no explicit factual

finding” but, based on conflicting testimony at the evidentiary

hearing, “evidently found [the attorney’s] testimony more

credible.” Id. (internal quotation marks omitted).

The Seventh Circuit discounted this factual finding

because, after examining the trial court’s transcript, it

concluded, “[t]he ruling contains no mention of the word

‘credibility’ nor includes any language suggesting a comparison

of believability . . . [and] such a sparse decision devoid of

factual matter cannot support the Illinois Supreme Court’s

determination of an implicit credibility finding.” Grounds, 721

F.3d at 822; see also Taylor v. Maddox, 366 F.3d 992, 1001 (9th

Cir. 2004) (“[W]here the State courts plainly misapprehend or

misstate the record in making their findings, and the

misapprehension goes to a material factual issue that is central

to petitioner’s claim, that misapprehension can fatally

undermine the fact-finding process, rendering the resulting

factual finding unreasonable.”).

Like Grounds, here, there is no support in the record

for the State Supreme Court’s finding that the State Sentencing

Court “intended for the sentences to run consecutively.” J.A.

25. First, the State Sentencing Court was aware that Appellant

was eligible for discharge on the underlying conviction in

16
December 2014, but in its sentencing order, it deliberately set

the effective sentencing date at Appellant’s parole eligibility

date, March 2010, instead. Compare J.A. 20 (“It is . . .

ORDERED that the defendant serve this sentence beginning March

2010.”), with id. at 13 (Appellant’s counsel advising the State

Sentencing Court that Appellant’s release date was likely

December 2014).

Whereas the State Sentencing Court’s order is enough

to demonstrate the court’s intent at sentencing, see Bell v.

Thompson, 545 U.S. 794, 805 (2005) (“Basic to the operation of

the judicial system is the principle that a court speaks through

its judgments and orders.” (internal quotation marks omitted)),

the State Sentencing Court’s order was consistent with and

bolstered by its spoken words at the sentencing hearing. The

sentencing hearing transcript shows that, instead of a purely

concurrent or consecutive sentence, the court intended to assign

some hybrid of these two options. See J.A. 15 (“I can sentence

you to a one to three, starting today [which would run

concurrently], or I can sentence you to a one to three starting

when you’re discharged [which would run consecutively], but I’m

going to split the baby in half.” (emphasis supplied)); id.

(“Now, had you [escaped] those other ways and there had been a

violent type jail escape or whatever, I would have put that at

the end of your sentence, but it wasn’t.”). Therefore, on this

17
record it is crystal clear that the State Sentencing Court

intended to sentence Appellant neither to completely concurrent,

nor completely consecutive sentences.

The State Supreme Court reasoned that if the trial

court actually intended the sentences to run concurrently, “it

is hard to imagine how the subsequent sentence would have

punished the petitioner or served to deter him from future

escapes.” J.A. 25. This statement, however, is also belied by

the record. The trial court expressly stated its intent to

impose extra punishment for the escape:

[B]y making [the sentence] beginning in March of 2010,
which is about 4 or 5 months from now and not giving
you any back credit, that[] . . . will cost you your
opportunity for parole because you won’t be eligible
then until March of 2011, and if the parole board
wants to parole you on both of those, that’s fine, and
if not, well, you’ll remember that the next time you
go for a little stroll.

Id. at 15-16. See Maddox, 366 F.3d at 1008 (“Failure to

consider key aspects of the record is a defect in the fact-

finding process.”).

Based on the foregoing, we conclude that Appellant has

rebutted the “presumption of correctness” of the State Supreme

Court’s decision “by clear and convincing evidence,” namely, the

words in the original sentencing order and the statements of the

State Sentencing Court during the sentencing hearing. 28 U.S.C.

§ 2254(e)(1); see also Bell v. Ozmint, 332 F.3d 229, 237 (4th

18
Cir. 2003). Thus, Appellant has met the requirements of

§ 2254(d)(2). The district court erred in deciding otherwise.

2.

Having decided that Appellant has satisfied

§ 2254(d)(2), i.e., the State Supreme Court’s decision was based

on an unreasonable determination of the facts, we must now

resolve the level of deference otherwise owed to the State

Supreme Court’s decision.

The Supreme Court of the United States has directed

that the federal courts should not apply AEDPA deference when “a

state court’s adjudication of a claim is dependent on an

antecedent unreasonable application of federal law” under 28

U.S.C. § 2254(d)(1). Panetti v. Quarterman, 551 U.S. 930, 953

(2007). Although neither the Supreme Court nor this court has

yet to consider the issue, the weight of the authority

establishes that we should likewise decline to apply AEDPA

deference when a petitioner satisfies § 2254(d)(2). See, e.g.,

Magnan v. Trammell, 719 F.3d 1159, 1175 (10th Cir. 2013)

(“Because the [state court’s decision on a jurisdictional issue]

‘was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,’

28 U.S.C. § 2254(d)(2), we are obligated to review the

jurisdictional issue de novo[.]”); Hurles v. Ryan, 706 F.3d

1021, 1030 (9th Cir. 2013); Cooper v. Sec’y, Dep’t of Corr., 646

19
F.3d 1328, 1353 (11th Cir. 2011); Rice v. White, 660 F.3d 242,

252 & n.4, 257 (6th Cir. 2011).

Therefore, we proceed to consider the judicial

vindictiveness argument under a purely de novo standard, owing

no deference to the State Supreme Court’s decision.

B.

1.

In North Carolina v. Pearce, the Supreme Court of the

United States held, “Due process of law . . . requires that

vindictiveness against a defendant for having successfully

attacked his first conviction must play no part in the sentence

he receives after a new trial.” 395 U.S. 711, 725 (1969),

overruled on other grounds by Alabama v. Smith, 490 U.S. 794

(1989). Further, “since the fear of such vindictiveness may

unconstitutionally deter a defendant’s exercise of the right to

appeal or collaterally attack his first conviction, due process

also requires that a defendant be freed of apprehension of such

a retaliatory motivation on the part of the sentencing judge.”

Id. In light of these conclusions, the Supreme Court explained

that whenever a judge “imposes a more severe sentence upon a

defendant after a new trial, the reasons for his doing so must

affirmatively appear.” Id. at 726. The Supreme Court later

interpreted Pearce as applying “a presumption of vindictiveness,

which may be overcome only by objective information in the

20
record justifying the increased sentence.” Wasman v. United

States, 468 U.S. 559, 565 (1984) (internal quotation marks

omitted).

The broad sweep of Pearce has been limited, however.

The Supreme Court decided that the presumption did not arise in

the following situations: where an increased sentence was

imposed by a superior court in a system that gave the defendant

convicted of a misdemeanor in an inferior court the right to

trial de novo in a superior court, see Colten v. Kentucky, 407

U.S. 104, 116 (1972); a second jury, on retrial following a

successful appeal, imposed a higher sentence than a prior jury,

where the second jury was completely unaware of the first

sentence, see Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973);

and a defendant was first sentenced by a jury and, after

retrial, was sentenced to a longer term of imprisonment by the

judge who granted the defendant’s motion for new trial, where

the defendant desired that the judge resentence him, and the

judge provided sufficient reasons for the increase, see Texas v.

McCullough, 475 U.S. 134, 140 (1986).

The Supreme Court has extended the presumption,

however, to the prosecutorial vindictiveness context where,

while a defendant’s misdemeanor conviction was on de novo

appeal, the prosecutor filed a felony indictment based on the

same conduct. See Blackledge v. Perry, 417 U.S. 21, 27 (1974)

21
(“[T]he opportunities for vindictiveness [where the central

figure is not the judge or jury, but the prosecutor] are such as

to impel the conclusion that due process of law requires a rule

analogous to that of the Pearce case.”).

In 1989, Pearce was partially overruled in Smith,

which held that when a defendant receives one sentence after a

guilty plea, and then receives an increased sentence after the

guilty plea was vacated and the defendant was later convicted in

a jury trial, the presumption does not attach. See 490 U.S. at

803. Smith explained, “While the Pearce opinion appeared on its

face to announce a rule of sweeping dimension, our subsequent

cases have made clear that its presumption of vindictiveness

‘do[es] not apply in every case where a convicted defendant

receives a higher sentence on retrial.’” Id. at 799 (quoting

McCullough, 475 U.S. at 138). Rather, Smith declared that

Pearce’s application was “limited . . . to circumstances where

its objectives are thought most efficaciously served.” Id.

(internal quotation marks omitted). Indeed, the “evil the

Pearce Court sought to prevent was not the imposition of

enlarged sentences after a new trial, but vindictiveness of a

sentencing judge.” Id. (internal quotation marks and alteration

omitted).

Thus, after Smith, a petitioner is required to show a

“reasonable likelihood that the increase in sentence is the

22
product of actual vindictiveness on the part of the sentencing

authority.” 490 U.S. at 799 (internal quotation marks and

citations omitted); see also United States v. Williams, 444 F.3d

250, 254 (4th Cir. 2006) (“[T]he presumption of vindictiveness

is not designed to prevent the imposition of an increased

sentence ‘for some valid reason associated with the need for

flexibility and discretion in the sentencing process,’” but is

“‘premised on the apparent need to guard against vindictiveness

in the resentencing process.’” (quoting Chaffin, 412 U.S. at

25)). It follows that when a court imposes a more severe

sentence than the one initially imposed, the court must

“affirmatively identify[] relevant conduct or events,”

justifying the increased sentence, Wasman, 468 U.S. at 572,

including those that throw “new light upon the defendant’s life,

health, habits, conduct, and mental and moral propensities,”

Pearce, 395 U.S. at 723 (internal quotation marks omitted).

2.

a.

Against this backdrop, we must first consider whether

the Pearce presumption can apply in this case. We have before

us a unique factual scenario: A defendant is sentenced; he

files an expedited Rule 35(a) motion to correct an allegedly

illegal sentence; he then files a petition asking a higher

tribunal to direct the sentencing court to rule on the motion or

23
void his sentence entirely; before that petition is ruled upon,

and only four days after it is received by the sentencing court,

the sentencing court acknowledges receipt of a copy of the

petition and increases its original sentence, citing a reason

that is clearly unsupported by the record. This unique scenario

is one of first impression in this circuit, and elsewhere. We

look to the policy and logic of Pearce and its progeny as our

guide.

The Pearce opinion was “premised on the apparent need

to guard against vindictiveness in the resentencing process.”

Chaffin, 412 U.S. at 25 (emphasis in original). The presumption

“exists to protect against the possibility of vindictiveness;

therefore, the circumstances of resentencing must be examined to

determine whether they carry such an inherent threat. If not,

there [i]s no reason to apply the presumption.” United States

v. Rodriguez, 602 F.3d 346, 354 (5th Cir. 2010) (citation

omitted). In the prosecutorial vindictiveness context, the

presumption was “designed to spare courts the unseemly task of

probing the actual motives of the prosecutor.” United States v.

Goodwin, 457 U.S. 368, 372 (1982) (internal quotation marks

omitted). The Supreme Court explained,

Motives are complex and difficult to prove. As a
result, in certain cases in which action detrimental
to the defendant has been taken after the exercise of
a legal right, the Court has found it necessary to
“presume” an improper vindictive motive. . . . Given

24
 the severity of such a presumption, however -- which
may operate in the absence of any proof of an improper
motive and thus may block a legitimate response to
criminal conduct -- the Court has done so only in
cases in which a reasonable likelihood of
vindictiveness exists.

Id. at 373 (emphasis supplied). In this vein, Smith made clear

that the purpose of the Pearce presumption was to prevent “not

the imposition of enlarged sentences after a new trial, but

vindictiveness of a sentencing judge.” 490 U.S. at 799

(internal quotation marks omitted). Likewise, the Fifth Circuit

has stated, “[i]mposition of a harsher sentence by the original

judge triggers a presumption of vindictiveness that acts as an

aid to defendants who would otherwise have to shoulder a heavy

burden of proof.” Kindred v. Spears, 894 F.2d 1477, 1479 (5th

Cir. 1990).

Although the Supreme Court has been presented with

situations in which the alleged vindictiveness occurred “after a

new trial,” Wasman, 468 U.S. at 565 (internal quotation marks

omitted); “upon retrial,” Blackledge, 417 U.S. at 26; “upon

conviction after retrial,” Chaffin, 412 U.S. at 24; and

“following a successful appeal and reconviction,” Colten, 407

U.S. at 115, in lower courts, the presumption has been extended

beyond these contexts. For example, some federal courts of

appeals have extended the Pearce presumption to parole

determinations. See, e.g., Marshall v. Lansing, 839 F.2d 933,

25
947 (3d Cir. 1988) (“Just as a sentencing judge might resent a

challenge to an underlying conviction which he himself had

overseen, so too might the [Parole] Commission look unkindly

upon a successful court challenge to its rating of a prisoner’s

offense severity, thus supplying a motive for retaliation.”);

Bono v. Benov, 197 F.3d 409, 419 (9th Cir. 1999) (“The

Commission, which acts by statute as a singular entity, has an

institutional motivation to protect its ‘much-valued discretion’

by engaging in the type of vindication that might discourage

challenges to its authority, particularly those made by resort

to the courts.”). At least one court has suggested that the

presumption be extended to the context of a Rule 35(a)

challenge. See United States v. Paul, 783 F.2d 84, 88 (7th Cir.

1986) (“[W]e held in United States v. Jefferson[, 760 F.2d 821

(7th Cir. 1985), vacated on other grounds and remanded, 474 U.S.

806 (1985)] that Pearce’s proscription applies not only to

resentencing after retrial, but also to resentencing after

vacation of an illegal sentence. Thus, Pearce would prohibit a

district court from increasing a sentence upon a defendant’s

successful Rule 35(a) attack, in the absence of the required

information of misconduct.” (citation omitted)). Still others

have recognized the need for protection from judicial

vindictiveness when a party simply demonstrates its intention to

appeal. See Mahoney v. State, 281 A.2d 421, 425 (Md. App. 1971)

26
(“It logically follows that if the courts are prohibited from

exercising vindictiveness on a retrial because of a defendant’s

successful appellate attack, they are likewise prohibited from

exercising vindictiveness because of a defendant’s intention to

appeal.”). 5

In light of this guidance, we are satisfied that

application of the presumption of vindictiveness in this case

would comport with the spirit and logic set forth in Pearce,

Smith, and their progeny. Wasman declared,

If it was not clear from the Court’s holding in
Pearce, it is clear from our subsequent cases applying
Pearce that due process does not in any sense forbid
enhanced sentences or charges, but only enhancement
motivated by actual vindictiveness toward the
defendant for having exercised guaranteed rights.

5
Some state courts have also applied Pearce upon a
defendant’s attack of his sentence or intent to appeal, even if
such action had not yet been taken or ruled upon by a higher
tribunal. See, e.g., State v. Hildago, 684 So.2d 26, 31-32 (La.
Ct. App. 1996) (due process violated where trial judge increased
a defendant’s sentence after defendant attacked his plea and
then filed a motion to reconsider the sentence, and the court
stated, “instead of . . . accepting his sentence, he chose
instead to attack his plea. . . . And in thinking about it, I
think I was too easy on him the first time around.”); State v.
Thompson, 613 A.2d 192, 193 (Vt. 1992) (amended sentence
violated due process where it was increased after the defendant
“argu[ed] that the court’s proposed sentence was illegal and []
expressed [her] intent to appeal”); Colburn v. State, 501 S.W.2d
680, 683 (Tex. Crim. App. 1973) (due process violated where
harsher sentence was imposed “to punish the appellant more
severely because he gave notice of appeal”).

27
Wasman, 468 U.S. at 568 (first emphasis in original, second

emphasis supplied); see also Bordenkircher v. Hayes, 434 U.S.

357, 363 (1978) (“To punish a person because he has done what

the law plainly allows him to do is a due process violation of

the most basic sort.”); Williams, 47 F.3d at 660 (“It is . . . a

violation of due process to penalize a criminal defendant for

exercising his constitutional rights or for pursuing a statutory

right of appeal or collateral remedy.” (internal citation

omitted)); see also United States v. Ludien, 769 F.2d 981, 985

(4th Cir. 1985) (“[I]t is beyond doubt that a sentence enhanced,

whether before or after commencement of service, because of the

vindictiveness or other plainly improper motive of the trial

court would be fundamentally unfair and would deny the defendant

due process.”).

Here, it is without question that when Appellant was

resentenced, he was exercising rights guaranteed under the

statutes and Constitution of West Virginia. See W. Va. Code §

53-1-3 (establishing statutory right to file a petition for

mandamus); Id. § 53-4A-1 (providing that a person may file a

petition for habeas corpus with the State Supreme Court to

“seek[] . . . correction of [a] sentence”); W. Va. Const. art.

III, § 17 (“[J]ustice shall be administered without sale, denial

or delay.”); State ex rel. Patterson v. Aldredge, 317 S.E.2d

805, 807 (W. Va. 1984) (“In addition to the constitutional and

28
ethical provisions which compel the prompt disposition of all

civil actions, it should be noted that our rules of civil

procedure anticipate that judges will act in a timely

fashion.”).

This case is also different from those Supreme Court

cases in which a different entity resentenced the defendant.

For example, in Chaffin, where a jury, rather than a judge,

increased a defendant’s sentence, the jury did not have a

“personal stake” in the prior conviction and was not “sensitive

to the institutional interests that might occasion higher

sentences by a judge desirous of discouraging what he regards as

meritless appeals.” Chaffin, 412 U.S. at 27. In Colten, the

Court rejected the notion that “the hazard of being penalized

for seeking a new trial, which underlay the holding of Pearce,

also inheres in the de novo trial arrangement.” 407 U.S. at

116. But the State Sentencing Court, which was presented with a

motion to correct its allegedly illegal sentence -- and soon

after, a copy of a petition for mandamus and habeas corpus

relief submitted to a higher tribunal based on that sentence --

certainly had a personal stake in the original sentence, and

because it still retained jurisdiction over the Rule 35(a)

motion, the hazard of Appellant being penalized was pervasive.

Moreover, applying the rebuttable presumption of

vindictiveness in this case will further the prophylactic

29
function of the presumption. Cf. United States v. Campbell, 106

F.3d 64, 67 (5th Cir. 1997) (The presumption is “a prophylactic

[rule] addressed more to protect future litigants who appeal

than to the injustice done in the actual case,” and “[t]olerance

of a court’s vindictiveness might ‘chill’ a defendant’s right to

seek an appeal of her sentence.” (quoting Wasman, 468 U.S. at

564)). We cannot -- and would not -- declare that the statutory

right to file a petition for mandamus or habeas corpus in West

Virginia is any less susceptible to a chilling effect based on

vindictiveness than the statutory right to file an appeal.

b.

The State contends that the presumption does not apply

in this case because “there must have been some action by a

higher court that placed the sentencing judge in a defensive

posture; it is not triggered when a sentencing court amends a

sentence on its own.” Appellee’s Br. 26 (citing Kindred, 894

F.2d at 1479-80). The State contends, “‘unlike the judge who

has been reversed,’ the judge who amends a sentence on his own

has ‘no motivation to engage in self-vindication.’” Id.

(quoting McCullough, 475 U.S. at 139).

The State relies on McCullough, in which the Supreme

Court concluded that the Pearce presumption did not arise

because, inter alia, the same judge who gave the defendant an

increased sentence after retrial previously granted the motion

30
for new trial in the first place. The Court contrasted that

situation with one in which “the judge [was] reversed,” and

explained,

Presuming vindictiveness [because a party’s motion for
a new trial was granted] alone would be tantamount to
presuming that a judge will be vindictive towards a
defendant merely because he seeks an acquittal. . . .
We decline to adopt the view that the judicial
temperament of our Nation’s trial judges will suddenly
change upon the filing of a successful post-trial
motion. The presumption of Pearce does not apply in
situations where the possibility of vindictiveness is
this speculative, particularly since the presumption
may often “operate in the absence of any proof of an
improper motive and thus . . . block a legitimate
response to criminal conduct[.]”

McCullough, 475 U.S. at 139 (quoting Goodwin, 457 U.S. at 373)

(emphasis supplied).

This passage in McCullough hardly suggests that Pearce

could never apply to a situation where, after a post-trial

motion is filed, an enhanced sentence is handed down by the same

judge with no additional reasoning provided. In fact, such

dicta must be assessed in the context of McCullough, where the

defendant chose to have the judge sentence him, and that judge

had actually granted the defendant’s motion for a new trial,

agreeing on the record that the defendant’s claims had merit;

therefore, the trial judge “had no motivation to engage in self-

vindication.” 475 U.S. at 139. Here, the possibility of

vindictiveness is much less “speculative” than in a case in

which a new trial motion was granted “alone.” Id. (internal

31
quotation marks omitted). Indeed, the State Sentencing Court

was in a posture in which that motivation was reasonably

possible.

The State also relies on the Fifth Circuit’s Kindred

decision for the proposition that “vindictiveness becomes a

danger only where an event prods the sentencing court into a

posture of self-vindication.” 894 F.2d at 1480; see also Nulph

v. Cook, 333 F.3d 1052, 1057-58 (9th Cir. 2003) (“We have held

that no reasonable likelihood of vindictiveness exists unless

there is some ‘triggering event,’ such as a reversal and

remand.”). In so holding, Kindred decided that reversal on

appeal of an order and remand for a new hearing was a sufficient

triggering event for the presumption, but review by a parole

commission, which occurred merely by operation of statute, was

not. See id. at 1480. The court of appeals explained,

“Kindred’s . . . appearance before the Commission was not in the

role of the errant schoolboy who dared challenge his elder’s

wisdom but rather that of a passive cog in a statutory machine.”

Id.

Kindred, even if it were binding on this court, would

not alter our decision today. Appellant was hardly a “passive

cog in a statutory machine” when he filed his Rule 35(a) motion

and petition for mandamus or habeas relief. Kindred, 894 F.2d

at 1480. He was, in fact, in the role of “errant schoolboy”

32
because he was filing a petition to command the State Sentencing

Court to rule on his motion and force his “elder” to act, or, in

the alternative, void his sentence altogether.

Furthermore, the State Sentencing Court was in a

unique position based on the nature of the motions that were

filed: the State Sentencing Court retained jurisdiction of the

Rule 35(a) motion after the Petition was filed with the State

Supreme Court, and thus it was able to rule on the motion and

moot the mandamus issue before a “triggering event” could occur.

See Nulph, 333 F.3d at 1058. Thus, in this narrow case, the

requirement of a “triggering event” does not logically apply.

For these reasons, we conclude that the Pearce presumption of

vindictiveness applies to this case.

c.

Having decided that the presumption applies, we must

decide whether Appellant, in this instance, is entitled to

§ 2254 relief on the basis of the presumption. In Williams, we

explained that in order to benefit from the presumption of

vindictiveness, a petitioner must show (1) his second sentence

is more severe than his original sentence, and (2) a reasonable

likelihood of actual vindictiveness exists. See 444 F.3d at 254

(internal quotation marks omitted). If the petitioner makes

these showings, “‘a presumption arises that a greater sentence

has been imposed for a vindictive purpose -- a presumption that

33
must be rebutted by objective information . . . justifying the

increased sentence.’” Id. (quoting Smith, 490 U.S. at 798-99).

The parties do not dispute the first requirement. As

to the second requirement, in deciding whether there is a

reasonable likelihood of actual vindictiveness, we should

determine if “the reasons for the court [imposing a higher

sentence] ‘affirmatively appear.’” Williams, 444 F.3d at 254

(quoting Smith, 490 U.S. at 798); see also United States v.

Bello, 767 F.3d 1065, 1068 (4th Cir. 1985) (“Since Pearce, due

process requires that where a judge sentences a defendant more

severely after the defendant’s successful appeal, a ‘presumption

of vindictiveness’ is raised that may only be overcome by the

sentencing judge’s advancing appropriate reasons.” (internal

citation omitted)).

In an attempt to convince this court that the reasons

for the higher sentence actually appear in the record, the State

relies heavily on the State Sentencing Court’s reasoning that it

meant to “clarify” its original sentencing order. But this

argument fails factually and legally. Factually, the record

contradicts that conclusion. As explained supra, the State

Sentencing Court clearly did not intend to sentence Appellant to

a purely consecutive sentence for the escape conviction. And

legally, this court has held, “Regardless of the sentencing

judge’s expressed intent, the increased severity of the later

34
sentence would create a reasonable apprehension of

vindictiveness in defendants . . . that might well deter them

from taking meritorious appeals.” Bello, 767 F.2d at 1068.

If it were not enough that the State Sentencing Court

provided no reason (or, worse still, a reason contradicted by

the record) for the increased sentence, there are several other

factors that, viewed together, demonstrate a reasonable

likelihood of vindictiveness: (1) Appellant filed a motion to

correct an illegal sentence with the State Sentencing Court; (2)

Appellant filed the Petition; (3) the State Sentencing Court

increased Appellant’s sentence only four days after receiving a

copy of the Petition; and (4) the State Sentencing Court

specifically mentioned the Petition in the Amended Sentencing

Order.

The State posits that there may have been two reasons

why the State Sentencing Court issued the Amended Sentencing

Order, which would defeat Appellant’s claim that there was a

reasonable likelihood of vindictiveness. These proffered

reasons are, “the Amended Sentencing Order was needed to clarify

[Appellant]’s sentence,” and “the sentencing judge thought there

was some merit to [Appellant]’s argument [and] an amendment was

needed to correct [his] sentence.” Appellee’s Br. 17; see also

id. at 31-32. However, aside from the State Sentencing Court’s

bare words in the Amended Sentencing Order, which the record

35
contradicts, there is no evidentiary support for either one of

these assumptions. Therefore, Appellant is entitled to

application of the presumption.

d.

In light of the foregoing analysis, the burden must

shift to the State to rebut the presumption of vindictiveness,

“which may be overcome only by objective information in the

record justifying the increased sentence.” Wasman, 468 U.S. at

565 (internal quotation marks omitted). In its appellate

submissions, the State does not attempt to rebut any potential

application of the presumption. 6 In such circumstances,

Appellant is entitled to federal habeas relief. 7

6
At oral argument, the State explained that the State
Sentencing Court “acknowledging that [it] had received the [Rule
35] motion and the petition for writ of mandamus,” coupled with
the unsettled state of the law in West Virginia regarding the
original sentence, provides an “objective basis” for the
increased sentence. Oral Argument at 37:25-38:40, Austin v.
Plumley, No. 13-6661 (Jan. 28, 2014), available at
http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-
arguments. To the extent the State was proffering this argument
in an attempt to rebut the presumption of vindictiveness, its
attempt falls flat. Rather than presenting “objective
information,” Wasman, 468 U.S. at 565, the State requires us to
speculate that the State Sentencing Court believed its initial
sentence was illegal. That we cannot do.
7
We emphasize that the Pearce presumption is a prophylactic
measure meant to protect a defendant’s due process rights, and
our application thereof is not at all a commentary on the
propriety of the State Sentencing Court. As such, our ruling
does not evince a finding of actual vindictiveness. See
Blackledge, 417 U.S. at 28 (“The rationale of our judgment in
(Continued)
36
 3.

We turn now to the proper remedy. If a § 2254

petitioner is entitled to habeas relief, the court should

“dispose of the matter as law and justice require.” 28 U.S.C.

§ 2243. Appellant asks us to remand with instructions to

reinstate his initial sentence -- an interesting proposition,

considering it was Appellant’s challenge to that initial

sentence as illegal under West Virginia law that was the impetus

to this appeal in the first place. 8 The State, on the other

hand, asks us to direct the district court to issue a

conditional writ requiring resentencing of Appellant within a

the Pearce case . . . was not grounded upon the proposition that
actual retaliatory motivation must inevitably exist. Rather, we
emphasized that since the fear of such vindictiveness may
unconstitutionally deter a defendant’s exercise of the right to
appeal or collaterally attack his first conviction, due process
also requires that a defendant be freed of apprehension of such
a retaliatory motivation on the part of the sentencing judge.”
(internal quotation marks omitted)).
8
The State has taken conflicting positions on whether the
delayed effective sentencing date of the original sentence
contravenes West Virginia law. Compare Austin, No. 1:11-cv-892,
ECF No. 28 (Resp’t’s Mot. Summ. J.) at 19 (“In the case-at-bar
the Petitioner claims, wrongfully, that the trial court’s first
sentence was illegal.” (emphasis supplied)), with Appellee’s Br.
33 (“By [delaying the effective sentencing date to March 2010],
the [State Sentencing Court] effectively made Austin’s sentence
a 1.5 to 3 year term, arguably in contravention of West Virginia
Code § 61-11-8.” (emphasis supplied)), and Oral Argument at
23:04-24:00, Austin, No. 13-6661 (State explaining that there
has been no controlling decision from the Supreme Court of
Appeals of West Virginia on this point). In any event, we are
not called upon to decide this issue of West Virginia law.

37
certain period of time, and mandating that the sentencing be

conducted before a different judge.

We agree a conditional writ is appropriate. See Madej

v. Briley, 371 F.3d 898, 900 (7th Cir. 2004) (“When the

constitutional error is curable, the court often issues a

conditional writ[.]”). We will not, however, intrude on the

state court’s dominion and dictate that a different sentencing

judge should preside over this matter.

We observe, however, that Appellant’s challenge to the

legality of his original sentence was never resolved. In the

interests of justice, Appellant is entitled to have this

question resolved in state court, particularly since the State

has taken conflicting positions on whether the original sentence

was illegal. Thus, we vacate the judgment of the district court

and remand for issuance of a conditional writ of habeas corpus,

requiring the Amended Sentencing Order to be vacated. See

Milliken v. Bradley, 418 U.S. 717, 746 (1974) (“[A]ll remedies

are [designed] to restore the victims of [constitutional wrongs]

to the position they would have occupied in the absence of such

conduct.”); Rushen v. Spain, 464 U.S. 114, 119-20 (1983) (“The

adequacy of any remedy is determined solely by its ability to

mitigate constitutional error, if any, that has occurred.”).

Appellant’s original sentence should thus be reinstated, and his

Rule 35(a) motion should be resolved in accordance with the law

38
of West Virginia and the Due Process Clause of the Constitution.

If the motion is not resolved within a reasonable time,

Appellant’s sentence on the attempted escape conviction should

be rescinded.

IV.

For the foregoing reasons, the judgment of the

district court is vacated, and this matter is remanded to the

district court for the issuance of the conditional writ of

habeas corpus explained above.

VACATED AND REMANDED

39
SHEDD, Circuit Judge, dissenting:

I agree with the district court that “[i]n this case,

nothing occurred to trigger the presumption of vindictiveness,”

because “there was no reversal or similar event ‘prod[ding] the

sentencing court into a posture of self-vindication.’” Austin

v. Plumley, No. 1:11–0892, 2013 WL 1336997, at *5 (S.D. W.Va.

March 29, 2013) (quoting Kindred v. Spears, 894 F.2d 1477, 1480

(5th Cir. 1990)). Accordingly, I would affirm the district

court’s denial of Austin’s 28 U.S.C. § 2254 petition.

40