                             UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
