Kafka Meets Almost Heaven

The United States Court of Appeals for the Fourth Circuit tells a tale worthy of John Grisham in denying habeas relief on failure to exhaust grounds for a 1988 conviction of murder and other offenses.

The story behind Hicks’s failure to exhaust, however, begins long before his federal habeas petition in 2021. To understand the fight on appeal, we must retrace his steps along a Kafkaesque journey through West Virginia’s state court system that starts in 1989, shortly after his conviction, and ends, for our purposes, more than thirty years later in 2025. Along the way, our journey passes by forgotten motions, improperly appointed judges, and inattentive counsel. At the end, however, we find that the statutory text of 28 U.S.C. § 2254 requires us to affirm the district court’s dismissal. So we do.

The bad luck of the draw in seeking post-conviction relief in state court

To start, Hicks’s petition and motion were assigned to Judge O.C. Spaulding. The problem? Judge Spaulding had been the prosecutor in Hicks’s trial nearly a decade prior. In fact, he had been the “Prosecuting Attorney” in Hicks’s case and delivered the opening argument. In other words, the judge that West Virginia assigned to decide whether Hicks’s trial had been infected by constitutional errors was one of the main individuals accused of making those errors. Subsequently, for reasons we can only speculate about, “no activity occurred [on Hicks’s petition and motion] for fifteen (15) years.” J.A. 433. Hicks also took no steps to force the court to act during that period.

Sometime during those fifteen years, and again for unknown reasons, the case was reassigned from Judge Spaulding to Judge J. Robert Leslie. In 2012, Hicks sent a letter to the court to renew his then-15-year-old motion to appoint counsel. In response, Judge Leslie appointed Shawn Bayliss to be Hicks’s lawyer in September of that year. Hicks sent several letters to Bayliss from prison discussing his postconviction petition and his earlier motion for a sentence reduction. But while Bayliss attempted to secure a copy of Hicks’s trial transcript and moved to extend filing deadlines several times, he neglected to respond to Hicks’s communications. As a result, Hicks filed a complaint with the State Bar and the West Virginia Supreme Court concerning Bayliss’s performance. Ultimately, citing struggles to obtain a copy of the transcript, Bayliss moved to be relieved as counsel a year after he was appointed. Judge Joseph Reeder—who took the case from Judge Phillip M. Stowers, who took the case from Judge Leslie—granted Bayliss’s motion.

In September 2013, Judge Reeder appointed C. Dascoli, Jr. to replace Bayliss as Hicks’s appointed counsel. From the record, Dascoli does not appear to have made any filings or taken any action with respect to Hicks’s case for nearly three years.

In May 2016, Judge Reeder appointed Duane Rosenlieb to replace Dascoli as Hicks’s appointed counsel. Rosenlieb promptly failed to abide by a court order to file Hicks’s amended state postconviction petition by June 21, 2016. His first communication to Hicks was in November of that year, over half a year later.

In January 2017, Hicks tried to take matters into his own hands and moved to relieve Rosenlieb in order to proceed pro se. At a hearing, Rosenlieb informed the postconviction relief court that he was having trouble obtaining Hicks’s trial transcript—the same difficulty Bayliss had encountered. Rosenlieb also claimed that Hicks was himself an obstacle in the way of moving his postconviction petition forward because Hicks refused to fill out a so-called Losh list, a tool used in West Virginia to delineate the grounds for postconviction relief, and rejected Rosenlieb’s proposed strategy to obtain relief. Judge Reeder relieved Rosenlieb of his duties but held Hicks’s motion to proceed pro se in abeyance, reserving the right to appoint new counsel.

Inaction ensued

Between the appointment of Hostler in 2019 and the appointment of Gain in 2022, Hicks filed his federal habeas petition in the district court below. That brings us full circle back to the present appeal. As stated above, the district court dismissed Hicks’s federal habeas petition for failure to exhaust, and he appealed that dismissal to this Court. When Hicks filed his opening brief in this case in December 2024, “[n]o further progress ha[d] been made” in resolving his state postconviction relief case. Op. Br. at 9.

This is ordinarily where a facts section would end, as we have reached the point where the appeal before us was docketed—but this is no ordinary case. Hicks’s oral argument date before this court was set for March 19, 2025. Just before oral argument, West Virginia reassigned Hicks’s state postconviction case from Judge Reeder to a new judge, Mark Sorsaia. But, incredibly, Judge Sorsaia had also been one of Hicks’s prosecutors, just like Judge Spaulding. West Virginia 28(j) letter (March 12, 2025). So the case had to be reassigned yet again.

Shortly after oral argument, the state court finally resolved Hicks’s nearly thirty-year-old postconviction petition “on the merits” by “summarily dismiss[ing]” the case. Hicks 28(j) letter (April 24, 2025). This determination was made by Judge Stowers, who— it apparently bears mentioning—did not previously prosecute Hicks. Id.

With the timeline laid out, we now turn to the legal issue in this case.

Delay

Despite the decades of delay that have plagued Hicks’s case, it no longer appears that West Virginia’s post-conviction system is ineffective to protect Hicks’s rights. After oral argument in this case had concluded, the parties informed us that West Virginia assigned Hicks’s postconviction case to a judge who was uninvolved with his prosecution, and that the judge resolved the case on its merits. So after much prodding and way too much time, West Virginia is finally addressing Hicks’s case. Hicks’s postconviction petition—which alleges violations of his federal rights—must be evaluated fairly under West Virginia’s postconviction laws. See Williams v. Pennsylvania, 579 U.S. 1, 13–14 (2016). That is now being done. And although Hicks so far “has been unable to obtain relief,” that does not render its system ineffective to protect his rights. See Farkas v.  Butner, 972 F.3d 548, 555–56 (4th Cir. 2020). And in any case, Hicks may still yet obtain relief on appeal in the state system.

To be sure, past ineffectiveness is not irrelevant in considering present ineffectiveness. If it appeared that the underlying causes of West Virginia’s delay between 1997 and 2025 continued to exist such that it was likely Hicks’s case would again languish for years, our analysis would be different. But we have no reason to think that such delay will happen again. There is no indication that West Virginia’s postconviction process is so generally dilatory that the average petitioner will suffer extreme delay. Hicks’s situation, as far as the record shows, is an outlier. So now that there has been movement in Hicks’s case, we expect it to proceed as the average petitioner’s case does. West Virginia has failed him in the past, but we are confident and hopeful that it will not continue to fail him moving forward. Accordingly, the text of § 2254(b)(1)(B)(ii) does not permit Hicks to excuse his failure to exhaust. Cf. Bowles v. Russell, 551 U.S. 205, 212–14 & n.4 (2007) (noting that even when liberty is on the line, textual strictures must be adhered to).

Our conclusion that past delay alone is insufficient to excuse exhaustion aligns with longstanding habeas precedent and history.

Prevailing without praise

West Virginia gets no credit for its narrow victory today. Its past treatment of Hicks no doubt offends basic notions of how a state should treat its prisoners. The AngloAmerican legal tradition has for centuries recognized the importance of expedient justice: “To no one will we sell, to none will we deny or delay, right or justice.” Magna Carta ch. 40 (1215) (emphasis added). That recognition has not faded over time. We still understand today that “justice too long delayed is justice denied.” Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16, 1963).

Hicks is not necessarily entitled to freedom. But if he is to walk free at the end of his state postconviction proceedings, his freedom should not suffer from further undue delay. If he is to stay in prison, he is nevertheless entitled to know that forthwith.

(Mike Frisch)