Alan Lane Hicks v. Jonathan Frame, Superintendent, Mount Olive Correctional Complex

The Antiterrorism and Effective Death Penalty Act (AEDPA) requires state prisoners to exhaust all available state remedies prior to filing a federal habeas petition, unless “circumstances exist that render such [state-court] process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). Below, Petitioner Alan Lane Hicks argued that a 27- year delay, during which the state court assigned his case to a conflicted judge for 15 years and lost his case file, amounted to circumstances that rendered the state’s process ineffective. The Fourth Circuit recognized that Hicks’s “journey through West Virginia’s state court system” was “Kafkaesque,” and “no doubt offend[ed] basic notions of how a state should treat its prisoners,” and the state was therefore entitled to no comity. App. 3a, 20a, 15a n.7. But the Fourth Circuit held that a one-sentence order from the state court dismissing Hicks’s state petition—issued a week after oral argument in the Fourth Circuit—precluded excusing non-exhaustion under § 2254(b)(1)(B)(ii). This Court has never directly interpreted § 2254(b)(1)(B)(ii), and circuits are irreconcilably split on whether such eleventh-hour, state-court movement is dispositive when analyzing whether inordinate delay warrants excusing non-exhaustion under § 2254(b)(1)(B)(ii). The question presented is: Whether 28 U.S.C. § 2254(b)(1)(B)(ii)’s exception to the exhaustion requirement for “circumstances” that render state proceedings “ineffective” can apply when a state court reanimates inordinately delayed proceedings after a petitioner files in federal court.