                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-6547


CHARLES F. PLYMAIL,

                Petitioner - Appellant,

          v.

PATRICK A. MIRANDY, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:14-cv-06201)


Submitted:   November 18, 2016              Decided:   November 23, 2016


Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Charles F. Plymail, Appellant Pro Se. Shannon Frederick Kiser,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Charles F. Plymail seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

dismissing      without        prejudice     his        28     U.S.C.       § 2254     (2012)

petition for failing to exhaust his state remedies.                               The order

is not appealable unless a circuit justice or judge issues a

certificate of appealability.               28 U.S.C. § 2253(c)(1)(A) (2012).

A   certificate       of       appealability       will        not     issue      absent    “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2012).                  When the district court denies

relief on procedural grounds, the prisoner must demonstrate both

that the dispositive procedural ruling is debatable and that the

petition     states        a    debatable       claim        of      the    denial     of    a

constitutional right.             Slack v. McDaniel, 529 U.S. 473, 484-85

(2000).

       Our review of the present record, which is significantly

constrained by the absence of state court documents, convinces

us that the district court’s procedural ruling is debatable.

Before presenting claims in federal court, a § 2254 petitioner

must   exhaust    all      available     state     court       remedies.          28   U.S.C.

§ 2254(b)(1); Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir.

2015); Jones v. Sussex I State Prison, 591 F.3d 707, 713 (4th

Cir.   2010).      However,        a   petitioner        may      be   excused     from     the

exhaustion      requirement       if   “there      is    an       absence    of    available

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[s]tate corrective process[] or circumstances exist that render

such    process        ineffective        to       protect       the    rights        of    the

[petitioner].”          28 U.S.C. § 2254(b)(1)(B).                    State remedies may

be rendered ineffective by inordinate delay or inaction in state

proceedings.         See Farmer v. Circuit Court of Md. for Balt. Cty.,

31 F.3d 219, 223 (4th Cir. 1994) (“There is . . . authority for

treating     sufficiently        diligent,         though      unavailing,       efforts     to

exhaust as, effectively, exhaustion, and for excusing efforts

sufficiently         shown    to     be     futile        in     the    face        of     state

dilatoriness or recalcitrance.”).

       Here, the West Virginia Supreme Court of Appeals took over

20   years   to      decide    Plymail’s       direct       appeal      of    his    criminal

conviction.          Our sister circuits have found much shorter delays

sufficient to excuse the exhaustion requirement.                             See, e.g., Lee

v.   Stickman,        357    F.3d    338,      342    (3d      Cir.    2004)     (“[I]t      is

difficult       to    envision      any   amount      of       progress      justifying      an

eight-year delay in reaching the merits of a petition.”); Coe v.

Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (holding, in the

context    of    four-year       delay,     that     “a     prisoner      need      not    fully

exhaust his state remedies if the root of his complaint is his

inability to do so.”).

       The magistrate judge and the district court relied on the

West Virginia Supreme Court of Appeals’ finding that much of the

delay was caused by Plymail’s difficult relationship with his

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many appointed counsel.              However, the district court and the

magistrate judge also noted that the State failed to provide any

records   from     the     state    court   proceedings.          The   few    records

available in the present record indicate that not all of the

delay can be attributed to Plymail; for example, he successfully

petitioned at one juncture for a writ of mandamus ordering a

resentencing to allow him to perfect his appeal.                        Plymail also

alleged     that    he     suffered     from    a     life-threatening         medical

condition    that        rendered     him   unable     to    ensure      the    timely

prosecution of his appeal.

     The magistrate judge and district court also noted that

Plymail’s state habeas petition remains pending in state court.

The state petition had been pending for a year when Plymail

filed his § 2254 petition, and has been pending for a total of

more than three years.             As the magistrate judge and the district

court correctly recognized, it is not surprising a state habeas

proceeding would not be adjudicated while a direct appeal was

pending; however, the state court’s inaction is troubling given

that one of Plymail’s claims concerned the inordinate delay in

adjudicating       his    direct     appeal.    Accordingly,        based      on   the

record    before         us,   we    conclude       that    the    district      court

prematurely dismissed Plymail’s petition for failure to exhaust




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his state remedies. *      See Rule 4, R. Governing § 2254 Proceedings

(providing for sua sponte dismissal “[i]f it plainly appears

from the petition and any attached exhibits” that petitioner is

not entitled to relief).

     By this disposition, we indicate no view as to the ultimate

success   of   Plymail’s    petition.        We   simply    conclude   that   the

current state of the record is insufficient to establish as a

matter of law that Plymail’s petition should be dismissed for

failure to exhaust.

     Accordingly,     we    grant   a       certificate     of   appealability,

vacate the district court’s judgment, and remand the case to the

district court for further proceedings.               We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                           VACATED AND REMANDED




     *  We likewise conclude that, on the present record,
“reasonable jurists could debate whether” the 20-year delay in
adjudicating Plymail’s direct appeal constituted a due process
violation.   Slack, 529 U.S. at 484 (internal quotation marks
omitted); see United States v. Johnson, 732 F.2d 379, 381 (4th
Cir. 1984) (“[U]ndue delay in processing an appeal may rise to
the level of a due process violation.”).



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