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` Cite as: 574 U. S. ____ (2015)
`
` THOMAS, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
` MARVIN PLUMLEY, WARDEN v. TIMOTHY
`
`
` JARED AUSTIN
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
`
`
` No. 14–271. Decided January 20, 2015
`
`The motion of respondent for leave to proceed in forma
`
`
` pauperis is granted. The petition for a writ of certiorari is
`denied.
`JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
`
`
`dissenting from the denial of certiorari.
`
`Forty-six years ago, this Court created a presumption of
`judicial vindictiveness that applies when a judge imposes
`
`a more severe sentence upon a defendant after a new trial.
`
`North Carolina v. Pearce, 395 U. S. 711, 725–726 (1969).
`That presumption was—and remains—an anomaly in our
`law, which ordinarily “‘presum[es] . . . honesty and integ-
`rity in those serving as adjudicators.’” Caperton v. A. T.
`Massey Coal Co., 556 U. S. 868, 891 (2009) (ROBERTS,
`C. J., dissenting) (quoting Withrow v. Larkin, 421 U. S. 35,
`47 (1975)). Perhaps recognizing the oddity of this pre-
`sumption, the Court has repeatedly cautioned that it
`applies only where there is a reasonable likelihood that
`the increase in sentence was the product of actual vindic-
`tiveness on the part of the sentencing authority. E.g.,
`
`Alabama v. Smith, 490 U. S. 794, 799 (1989).
`
`Despite this instruction, confusion reigns. Some Courts
`of Appeals have taken a narrow view of the presumption,
`concluding that it applies only when a “triggering event”
`like a reversal by a higher tribunal “prods the sentencing
`court into a posture of self-vindication.” Kindred v.
`
`Spears, 894 F. 2d 1477, 1480 (CA5 1990); accord, e.g.,
`Fenner v. United States Parole Comm’n, 251 F. 3d 782, 788
`
`
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`
`
`
`
`
`
`

`
`
`
` PLUMLEY v. AUSTIN
`
` THOMAS, J., dissenting
`
`
`(CA9 2001). Others have taken a more expansive view,
`applying it when the trial court imposes a higher sentence
`after granting a motion for corrected sentence. See, e.g.,
`United States v. Paul, 783 F. 2d 84, 88 (CA7 1986). In this
`case, the United States Court of Appeals for the Fourth
`Circuit took the latter approach. 565 Fed. Appx. 175, 188
`
`(2014) (per curiam). The Court should have granted this
`
`petition to resolve the confusion.
`
`I
`While serving a prison term for breaking and entering,
`
`respondent Timothy Jared Austin walked away from an
`inmate road crew. He was apprehended and pleaded
`guilty to attempted escape. The West Virginia trial court
`sentenced him to one to three years for the attempted
`escape.
`At sentencing, the trial judge considered when Austin
`
`should begin serving that sentence. Austin was expected
`to be discharged on his breaking-and-entering conviction
`in December 2014, but was expected to become eligible for
`
` parole in March 2010. Recognizing that Austin’s attempted
`escape had not been violent, but still amounted to a
`“breach [of] trust,” App. to Pet. for Cert. 70, the trial court
`announced its sentence to begin on Austin’s expected
`parole date:
`“Now, I’ve got several ways that I can sentence you. I
`can sentence you to a one to three, starting today [No-
`vember 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
`in 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? . . . [I] think you
`should serve some time for [the attempted escape]; so,
`
`2
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`

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` Cite as: 574 U. S. ____ (2015)
`
` THOMAS, J., dissenting
`
`
`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 re-
`member that next time you go for a little stroll.” Id.,
`at 71–72.
`Seven months later, Austin filed an expedited motion to
`
`correct his sentence, arguing that state law prohibited the
`trial court from imposing a sentence that was neither
`purely concurrent nor purely consecutive. While that
`motion was pending in the trial court, he petitioned the
`West Virginia Supreme Court of Appeals for a writ of
`mandamus to the trial court to respond to the motion.
`
`Four days after receiving a copy of that petition, the trial
`
`court entered an amended sentencing order as follows:
`
`“[T]he undersigned Judge received a copy of a Writ of
`Mandamus or in the alternative Original Petition for
`Writ of Habeas Corpus. The Court also received a
`proposed Amended Sentencing Order. After review-
`ing this matter, it is clear to this Court that an
`Amended [Sentencing] 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.” Id., at
`59.
`
`
`
`
`
`3
`
`
`
`
`
`

`
` PLUMLEY v. AUSTIN
`
` THOMAS, J., dissenting
`
`
` This order resulted in a longer total sentence.
`
`
`The defendant appealed to the West Virginia Supreme
`
`Court, arguing that the court should presume that the
`trial judge had acted vindictively when he filed the
`amended sentencing order. The State Supreme Court
`rejected the appeal, explaining that it was clear that the
`trial judge acted only to clarify his intention in the original
`sentencing order.
`The defendant then applied for a writ of habeas corpus
`
`in federal court based on the same claim of judicial vindic-
`tiveness. The District Court denied the application, con-
`cluding that the West Virginia Supreme Court’s decision
`was not based on an unreasonable determination of the
`facts. See 28 U. S. C. §2254(d). It agreed with the West
`Virginia Supreme Court that nothing had occurred to
`trigger the presumption of judicial vindictiveness. As it
`explained, the West Virginia trial judge had entered the
`amended sentencing order based on the defendant’s mo-
`tion for a corrected sentence, not based on any reversal by
`a higher tribunal.
`
`The Fourth Circuit granted a certificate of appealability
`and reversed. 565 Fed. Appx. 175. It concluded that the
`West Virginia Supreme Court’s decision was based on an
`unreasonable determination of the facts, §2254(d)(2), and
`declined to afford any deference to that decision. Id., at
`184–185. It then applied the presumption of vindictive-
`ness. Although recognizing that the state trial judge had
`not been reversed by a higher tribunal, the Fourth Circuit
`concluded that the presumption applied because, “when
`
`
`[the defendant] was resentenced, he was exercising rights
`guaranteed under the statutes and Constitution of West
`Virginia.” Id., at 188.
`
`
`
`II
`
`This Court should have granted certiorari to review the
`
`
`Fourth Circuit’s decision for a number of reasons. To
`
`
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`4
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`

`
`5
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`
` Cite as: 574 U. S. ____ (2015)
`
` THOMAS, J., dissenting
`
`
`begin with, that decision is in tension with our precedents.
`Although “the Pearce opinion appeared on its face to an-
`nounce a rule of sweeping dimension, our subsequent
`cases have made clear that its presumption of vindictive-
`ness ‘does not apply in every case where a convicted de-
`fendant receives a higher sentence on retrial.’” Smith,
`
`490 U. S., at 799 (brackets omitted). Instead, we have
`applied it only where there is a reasonable likelihood of
`actual vindictiveness on the part of the sentencing author-
`ity. Ibid. Thus, we have refused to apply the presumption
`to a higher sentence entered after a retrial ordered by the
`original sentencing judge. Texas v. McCullough, 475 U. S.
`134, 138–139 (1986). “[U]nlike the judge who has been
`reversed,” we explained, the trial judge had “no motivation
`
`to engage in self-vindication.” Ibid.
`
`The Fourth Circuit’s rule is incompatible with this
`reasoning. The Fourth Circuit concluded that the pre-
`sumption applied because, when Austin was resentenced,
`“he was exercising rights guaranteed under the statutes
`and Constitution of West Virginia.” 565 Fed. Appx., at
`188. Under that reasoning, the defendant who exercised
`his rights to file and obtain a motion for a new trial should
`also have been entitled to the presumption of vindictive-
`ness. Contra, McCullough, 475 U. S., at 138–139. But
`this Court has already rejected the “view that the judicial
`temperament of our Nation’s trial judges will suddenly
`
`change upon the filing of a successful post-trial motion.”
`Id., at 139. To presume otherwise is to show profound
`
`
`disrespect to our fellow jurists. And that disrespect is
`even more pronounced in cases like this one, when federal
`judges are reviewing state criminal proceedings.
`
`The Fourth Circuit’s decision merits review for an addi-
`
`tional reason: It deepens existing disagreement between
`the Courts of Appeals over the scope of the presumption of
`vindictiveness. On the one hand, the Fifth and Ninth
`Circuits have taken the position that the presumption
`
`
`
`
`
`
`
`

`
`
`
` PLUMLEY v. AUSTIN
`
` THOMAS, J., dissenting
`
`
`does not apply “[a]bsent a triggering event” that “prods the
`
`sentencing court into a posture of self-vindication.” Kin-
`dred, 894 F. 2d, at 1480; accord, e.g., Fenner, 251 F. 3d, at
`
`
`788. For these courts, a reversal by a higher tribunal or
`order from a higher tribunal is such a triggering event, see
`Bono v. Benov, 197 F. 3d 409, 417 (CA9 1999); Kindred,
`supra, at 1479–1480, whereas the mere filing of an appli-
`cation or motion challenging a sentence is not, see Fenner,
`supra, at 788–789. The Eighth Circuit agrees and has
`
`concluded that reversal by a higher tribunal is the only
`such triggering event. Savina v. Getty, 982 F. 2d 526
`
`
`(1992) (unpublished table decision). The Seventh Circuit,
`on the other hand, has stated that it would apply the
`presumption even if the trial court imposed a higher sen-
`tence after itself granting a defendant’s motion for a cor-
`rected sentence. United States v. Brick, 905 F. 2d 1092,
`1096 (1990) (citing United States v. Paul, 783 F. 2d 84, 88
`
`(CA7 1986)).
`Our precedents have created this confusion, first by
`
`endorsing a presumption that is at odds with the respect
`we ordinarily accord our Nation’s judges, and then by
`chipping away at that presumption in a piecemeal fashion.
`We should not abdicate our responsibility to clean up a
`mess of our making. Utah Highway Patrol Assn. v. Ameri-
`
`can Atheists, Inc., 565 U. S. ___, ___–___ (2011) (THOMAS,
`J., dissenting from denial of certiorari) (slip op., at 17–18).
`It is time to revisit and clarify when, if ever, a presump-
`tion of judicial vindictiveness is appropriate.
`True enough, the decision below is unpublished and
`
`therefore lacks precedential force in the Fourth Circuit.
`
`Minor v. Bostwick Labs., Inc., 669 F. 3d 428, 433, n. 6
`(CA4 2012). But that in itself is yet another disturbing
`
`aspect of the Fourth Circuit’s decision, and yet another
`reason to grant review. The Court of Appeals had full
`
`briefing and argument on Austin’s claim of judicial vindic-
`tiveness. It analyzed the claim in a 39-page opinion writ-
`
`6
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`

`
`
`
` Cite as: 574 U. S. ____ (2015)
`
` THOMAS, J., dissenting
`
`
`ten over a dissent. By any standard—and certainly by the
`Fourth Circuit’s own—this decision should have been
`published. The Fourth Circuit’s Local Rule 36(a) provides
`that opinions will be published only if they satisfy one or
`more of five standards of publication. The opinion in this
`case met at least three of them: it “establishe[d] . . . a rule
`of law within th[at] Circuit,” “involve[d] a legal issue of
`continuing public interest,” and “create[d] a conflict with a
`
`decision in another circuit.” Rules 36(a)(i), (ii), (v) (2015).
`
`It is hard to imagine a reason that the Court of Appeals
`would not have published this opinion except to avoid
`
`creating binding law for the Circuit.
`*
`*
`*
`
`
`The Fourth Circuit’s decision warrants review. It orders
`
`the District Court to grant the extraordinary writ of ha-
`beas corpus on a questionable basis. It announces a rule
`that is at odds with the decisions of this Court and Courts
`
`of Appeals. And, it does so in an unpublished opinion that
`preserves its ability to change course in the future. For
`these reasons, we should have granted the petition for a
`writ of certiorari.
`
`
`
`
`
`7

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