                 Cite as: 574 U. S. ____ (2015)            1

                     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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                     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,
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                    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.
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                     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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                    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
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                     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-
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                     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.
