Hargrove v. Nottoway Corr. Center
Filing
13
MEMORANDUM OPINION re: respondent's Motion to Dismiss. Signed by District Judge Claude M. Hilton on 10/21/09. Copies mailed: yes(pmil)
IN THE UNITED STATES DISTRICT COURT FOR
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Kelvin L. Hargrove, )
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Petitioner,
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Warden, Nottoway Correctional Center,
Respondent.
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MEMORANDUM OPINION
Kelvin L. Hargrove, a Virginia inmate proceeding rjro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his conviction of first degree murder entered on a jury verdict in the Circuit Court for Hanover County, Virginia. On April 24, 2009, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and
exhibits. Hargrove was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he has opted not to file a response. For the reasons that
follow, Hargrove's claims must be dismissed.
I.
On August 15, 2005, Hargrove was convicted of first degree murder for the stabbing death
of his wife, Cynthia, in the Circuit Court for Hanover County. Commonwealth v. Hargrove. Case
No. CR04-000777. Consistent with the jury's recommendation, the court sentenced Hargrove to
thirty-five (35) years imprisonment. Hargrove pursued a direct appeal to the Court of Appeals orVirginia, arguing that the trial
court erred in denying his motion to strike the first degree murder charge where the evidence was insufficient as a matter of law to prove that Hargrove acted with premeditation and malice
aforethought when he killed his wife. On April 19, 2006, the Court of Appeals of Virginia denied Hargrove's petition for appeal, finding that "[bjased upon the number of stab wounds, the amount
of blood in the kitchen, the lack of any wounds or obvious injuries to appellant, except for the cut
on his right thumb, and the size and deadly character of the butcher knife, a rational juror could infer
that appellant intended to kill Cynthia and that he carried out his purpose by brutally stabbing her in the chest and abdomen seven times, inflicting a fatal wound to her heart." Hartzrove v. Commonwealth. R. No. 2821-05-2 (Va. Ct. App. Apr. 19, 2006), slip. op. at 12; Resp. Ex. 3. On September 26, 2006, Hargrove filed a petition for a state writ of habeas corpus in the
Circuit Court for Hanover County, raising the following claims:
1. An appeal was not perfected to a three-judge panel of
the Court of Appeals and an appeal was not perfected
to the Virginia Supreme Court.
2.
Ineffective assistance of counsel where his lawyers
did not argue manslaughter or heat of passion.
3.
Ineffective assistance of counsel where his lawyers did not submit a jury instruction on manslaughter or
heat of passion.
4.
Ineffective assistance of counsel where his lawyers did not suppress his involuntary statement to the
police.
5.
Ineffective assistance of counsel where his lawyers
did not investigate the victim's 'diminished mental
capacity' of'anger' and 'violence.'
On December 14, 2006, Hargrove's first claim as listed above was granted, and he was
allowed to pursue a delayed appeal in the Supreme Court of Virginia. Hargrove's remaining claims
were dismissed, with prejudice. Hargrove v. Dir.. Dep't of Corrections. Case No. 085 CL 06000837-
00; Resp. Ex. 2. On his belated appeal, Hargrove argued that the evidence was insufficient to sustain
his conviction of first degree murder, and the Supreme Court of Virginia refused the appeal on
October 7. 2008. Hargrove v. Commonwealth. R. No. 081096 (Va. Oct. 7, 2008); Resp. Ex. 4.
Hargrove also petitioned the Virginia Supreme Court for review of the denial of his habeas
corpus application by the Hanover Circuit Court. However, the only issue Hargrove raised was whether the order denying habeas corpus relief met the requirements of Virginia Code § 8.01654(B)(5), which requires that a court make findings of fact and conclusions of law part of the
record, and Supreme Court Rule 3A:24. No discussion of the substantive claims refused by the
circuit court was included in Hargrove's petition; in fact, the substantive claims were not enumerated or described at all. Resp. Ex. 2. The Virginia Supreme Court refused the appeal on June 27. 2007.
Hararevc v. Dir.. R. No. 070686 (Va. Jun. 28, 2007); Resp. Ex. 2.
On November 7, 2008, Hargrove filed the instant petition for § 2254 relief,1 raising the
following claims:
1.
He received ineffective assistance of counsel because
his attorneys did not argue manslaughter or heat of
passion.
2.
He received ineffective assistance of counsel because
his attorneys did not submit jury instructions on
manslaughter or heat of passion.
3.
He received ineffective assistance of counsel because
his
attorneys
did
not
suppress
his
involuntary
statement to the police.
'A habeas corpus petition submitted by an incarcerated rjrose litigant is deemed filed when the
prisoner delivers his pleading to prison officials. Lewis v. City of Richmond Police Dep't. 947 F.2d
733 (4th Cir. 1991): see also Houston v. Lack. 487 U.S. 266 (1988). Here, Hargrove executed his petition under penalty of perjury on November 7,2008, so the petition presumably was placed in the
prison mailing system that same day. Pet. at 7.
4.
He received ineffective assistance of counsel where his lawyers did not investigate
of
the
victim's
and
'diminished
'violence.'
mental
capacity'
'anger'
5.
The trial court erred in refusing to instruct the jury on
manslaughter and heat of passion where more than a
scintilla of evidence supported the elements of those
offenses.
6.
The trial court erred when it failed to reduce the charges from first degree murder to manslaughter where there was evidence that supported the defense
theory of sudden heat of passion.
Docket # 2.
On April 24,2009, respondent filed a Rule 5 Answer and a Motion to Dismiss Hargrove's claims. Hargrove elected not to file a reply. See Docket #11. Accordingly, this matter is now ripe
for review.
II.
In reviewing a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, a
federal court must determine whether the petitioner has exhausted his claims before the appropriate
slate courts and whether those claims are barred by a procedural default. As a general rule, a federal
petitioner must first exhaust his claims in state court because exhaustion is a matter of comity to the
state courts; failure to exhaust a claim requires its dismissal by the federal court. See 28 U.S.C. §
2254(b); Granberrv v. Greer. 481 U.S. 129, 134 (1987); Rose v. Lundv. 455 U.S. 509, 515-19
(1982). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel. 526 U.S. 838, 845 (1999). Thus, in
Virginia, a § 2254 petitioner must first have presented the same factual and legal claims to the
Supreme Court of Virginia either by way of a direct appeal, a state habeas corpus petition, or an appeal from a circuit court's denial of a state habeas petition. Matthews v. Evatt. 105 F.3d 907,910-
11 (4lh Cir. 1997) (quoting Picard v. Connor. 404 U.S. 270, 275-78 (1971) for the proposition that
for a claim to be exhausted, "both the operative facts and the 'controlling legal principles' must be
presented to the state court."): see Pruett v. Thompson. 771 F.Supp. 1428, 1436 (E.D.Va. 1991),
affd 996 F.2d 1560 (4th Cir. 1993) (exhaustion requirement is satisfied when "allegations advanced
in federal court... [are] the same as those advanced at least once to the highest state court."). This does not end the exhaustion analysis, however, because "[a] claim that has not been
presented to the highest state court nevertheless may be treated as exhausted if it is clear that the
claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Baker v. Corcoran. 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland. 518
U.S. 152, 161 (1996)). Importantly, however, "the procedural bar that gives rise to exhaustion
provides an independent and adequate state-law ground for the conviction and sentence, and thus
prevents federal habeas review of the defaulted claim." Id. (quoting Gray. 518 U.S. at 162).
III.
At this juncture, all of petitioner's present claims are procedurally barred from federal review.
First, none of the claims has been exhausted in the state forum, because they were not presented to
the Virginia Supreme Court for review. Although Hargrove raised claims 1 through 4 as listed above
in his habeas corpus petition filed in the Circuit Court for Hanover County, he failed to challenge
the dismissal of those claims in his subsequent appeal to the Virginia Supreme Court. Resp. Ex. 2.
Similarly, claims 5 and 6 of this petition have never been presented to the Virginia courts, so they
also remain unexhausted.
Although Hargrove did not properly present his claims to the Supreme Court of Virginia, they
are nonetheless treated as exhausted because petitioner is now precluded from raising them in state
court. Specifically, the claims are procedurally defaulted under Virginia Code § 8.01-654(A)(2)
(providing a statute of limitations for state habeas petitions) and Virginia Code § 8.01-654(B)(2)
(barring successive state habeas petitions). Therefore, the instant claims are simultaneously
exhausted and defaulted for purposes of federal habeas review. See Bassette v. Thompson. 915 F.2d
932 (4th Cir. 1990).
Federal courts may not review barred claims absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris v. Reed. 489 U.S. 255, 260
(1989). The existence of cause ordinarily turns upon a showing of (1) a denial of effective assistance
of counsel, (2) a factor external to the defense which impeded compliance with the state procedural
rule, or (3) the novelty of the claim. See Coleman. 501 U.S. at 753-54; Clozza v. Murray. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton v. Muncv. 845 F.2d 1238,1241-42 (4th Cir. 1988). Importantly, a court need not consider the issue of prejudice in the absence of cause. See Kornahrens v. Evatt.
66 F.3d 1350, 1359 (4th Cir. 1995), cert, denied. 517 U.S. 1171 (1996). Here, petitioner neither
suggests nor offers evidence sufficient to establish that he is actually innocent of the offense for
which he was convicted. SeeSchlun v. Delo. 513 U.S. 298.327 (1995): Roval v. Tavlor. 188 F.3d
239, 244 (4th Cir. 1999). Additionally, petitioner has not shown cause sufficient to excuse his
default or prejudice resulting therefrom. Accordingly, as all of the claims raised in this petition are
procedurally barred from federal review, the petition must be dismissed.
III.
For the foregoing reasons, this petition will be dismissed. An appropriate Order shall issue.
Entered this
OA -"'clay of
2009.
/s/
Alexandria, Virginia
Claude M. Hilton United States District Judge
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