Perry v. Director, Virginia Department of Corrections
Filing
11
MEMORANDUM OPINION re: Motion to Dismiss. (see Order for complete details) Signed by District Judge Anthony J Trenga on 1/19/12. (tfitz, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA ,-==
=-
Alexandria Division
Marvin D. Perry,
a ; 'jw i s iw
)
Petitioner,
>
)
Director, Virginia Department of
Corrections,
Respondent.
)
)
)
)
)
\ a
•
3
i
l:llcv354(AJT/IDD)
MEMORANDUM OPINION
Marvin D. Perry, a Virginia inmate proceeding pro se, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of
malicious wounding and other offenses in the Circuit Court for the City of Portsmouth, Virginia.
On May 17,2011, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a
supporting brief and exhibits. Perry was given the opportunity to file responsive materials,
pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he has filed no reply. For the
reasons that follow, respondent's Motion to Dismiss will be granted, and this petition will be
dismissed with prejudice.
I. Background
On April 16, 2008, following a bench trial, Perry was convicted of malicious wounding,
attempted malicious wounding, and two counts ofunlawful use ofa firearm, and received a sentence
of 23 years incarceration with 15 years suspended. Case No. CR05002670 - 01 through -05. The
facts underlying the convictions were described by the Court of Appeals of Virginia as follow:
Appellant and LaKeisha Perry maintained a romantic relationship for
1
over thirteen years. At one time, they were married and eventually
had two children together. However, their relationship had dissolved.
After separating, appellant nonetheless maintained a key to the former
martial home but he lived with his grandmother.
On May 27,2005, appellant tried to reach Mrs. Perry in order to make
arrangements to drop off a Play Station II for one oftheir sons. Mrs.
Perry did not own a cell phone and had given appellant the number of
Crystal Murphy (her cousin) in order to reach her. Ms. Murphy
testified appellant had consistently tried to get in touch with Mrs.
Perry. When appellant could not reach Mrs. Perry, he decided to go
to the former marital home. Events occurring at the marital home
while appellant was present scared the children enough for them to
call Ms. Murphy. By the time Ms. Murphy, Mrs. Perry, Rodney
Stukes, and Horace Henry arrived at the former marital home,
appellant was no longer present.
According to Ms. Murphy's testimony at trial, appellant asked to
speak with her upon returning to the marital home. 'Heated words'
were exchanged between the two. Mr. Stukes and Mr. Henry were
behind Ms. Murphy during the exchanging of words. Ms. Murphy
testified that 'all of a sudden, out of his back pocket... [appellant]
came up shooting.' Appellant fired the gun several times. One bullet
struck and lodged into the hand ofMr. Henry. Then, Mr. Stukes and
Mr. Henry proceeded to run after the appellant but soon relinquished
the chase when Mr. Henry's hand began to bleed profusely. Mr.
Henry similarly testified to these events with slight variations
concerning the number ofphone calls received, positions of persons
on the street, and actually viewing the firearm in appellant's
possession.
Vergie Dawson also testified at trial. She stated the appellant, her
son-in-law, contacted her by phone shortly after the incident.
Accordingto Mrs. Dawson, appellantconfessed to being present and
shooting the victim. Appellant vehemently denied any such
conversation ever took place.
Perrvv. Commonwealth. R. No. 0978-08-1 (Va. Ct. App. Oct. 9, 2008); Resp. Ex. 1.
Perry appealed his conviction to the Court of Appeals of Virginia, raising claims that the
evidence was insufficient to sustain the convictions and that his rights under the Fifth
Amendment were violated when the prosecution was allowed to question his contact with police
about the offenses. The appeal was refused by a singlejudge on October 9,2008, id, and by a
three-judge panel on February 10,2009. Resp. Ex. 2. Perry's attempt to seek further review by
the Supreme Court of Virginia was refused on June 24,2009. Perry v. Commonwealth. R. No.
090445 (Va. June 24,2009); Resp. Ex. 5.
Perry next filed a petition for a state writ of habeas corpus in the trial court, raising the
same multiple claims of trial error and ineffective assistance of counsel he makes in this federal
proceeding. In an Order dated April 27,2010, the court denied and dismissed the petition.
Resp. Ex. 7. Perry sought review of that result by the Supreme Court of Virginia, but his petition
for appeal was refused on January 31,2011. Perry v. Dir.. Dep't of Corr.. R. No. 101436 (Va.
Jan. 31,2011); Resp. Ex. 9.
Perry then turned to the federal forum and timely filed this application for § 2254 relief
on March 28,2011, raising the following claims:
1.
He received ineffective assistance of counsel when his attorney
failed to:
a.
Properly impeach certain witnesses;
b.
Subpoena a material witness for trial;
c.
Subpoena cell phone records;
d.
Protect his right to a speedy trial;
e.
Object to prosecutorial misconduct; and
f.
Raise a due process claim when the prosecutor
asked petitioner if he had made a statement to the
police.
2.
The trial court erred by:
a.
Finding the evidence sufficient to sustain the
convictions; and
b.
Allowing the admission of evidence that petitioner
had not made a statement to the police.
As noted above, respondent has filed a Rule 5 Answer to the petition, as well as a Motion
to Dismiss Perry's claims with a supporting brief and exhibits. (Docket ##6-8) Perry was
provided with the notice required by Roseboro and Local Rule 7(K), and opted to filed no reply.
Respondent acknowledges that the claims raised in this petition were exhausted in the state
forum.1 Accordingly, this matter is now ripe for disposition.
II. Standard of Review
When a state court has addressed the merits of a claim raised in a federal habeas petition,
a federal court may not grant the petition based on the claim unless the state court's adjudication
is contrary to, or an unreasonable application of, clearly established federal law, or based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is
"contrary to" or "an unreasonable application of federal law requires an independent review of
each standard. See Williams v. Taylor. 529 U.S. 362,412-13 (2000). A state court
determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to
'Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the
appropriate state court. See 28 U.S.C. § 2254(b); Granberrv v Greer. 481 U.S. 129 (1987); Rose v.
Lundv. 455 U.S. 509 (1982); Preiser v. Rodriguez. 411 U.S. 475 (1973). 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 ofthe State's established appellate review
process." O'Sullivan v. Boerckel. 526 U.S. 838, 845 (1999). Thus, a § 2254 applicant in this
jurisdiction must first have presented the same factual and legal claims raised in his federal petition
to the Supreme Court ofVirginia on direct appeal, or in a state habeas corpus proceeding. See, e.g..
Duncan v. Henry. 513 U.S. 364 (1995).
that reached by [the United States Supreme] Court on a question of law or if the state court
decides a casedifferently than [theUnited States Supreme] Court has on a set of materially
indistinguishable facts." Id, at 413. Under the "unreasonable application" clause, the writ should
be granted if the federal court finds that the state court "identifies the correct governing legal
principle from [the Supreme] Court's decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id. Importantly, this standard of reasonableness is an objective one.
Id at 410. Under this standard, "[t]he focus of federal court review is now on the state court
decision that previously addressed the claims rather than the petitioner's free-standing claims
themselves." McLee v. Aneelone. 967F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
III. Analysis
A. Ineffective Assistance of Counsel
In his first, compound claim, Perry argues that he received ineffective assistance of trial
counsel for several reasons. To establish ineffective assistance of counsel, a petitioner must
show that (1) "counsel's performance was deficient" and (2) "the deficient performance
prejudiced the defendant." Strickland v. Washington. 466 U.S. 668. 687 H984V To prove that
counsel's performance was deficient, a petitioner must show that "counsel's representation fell
below an objective standard of reasonableness" id at 688, and that the "acts and omissions" of
counsel were, in light of all the circumstances, "outside the range of professionally competent
assistance." Id at 690. Such a determination "must be highly deferential," with a "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Id at 689; see also. Burket v. Aneelone. 208 F.3d 172,189 (4th Cir. 2000)
(reviewing court "must be highly deferential in scrutinizing [counsel's] performance andmust
filter the distorting effects of hindsight from [its] analysis"); Spencer v. Murray. 18 F.3d 229,
233 (4th Cir. 1994) (court must"presume that challenged acts are likely the result of sound trial
strategy.").
To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland. 466 U.S. at 694. "A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id; accord. Lovittv. True. 403 F.3d 171,181 (4th
Cir. 2005). The burden is on the petitioner to establish not merely that counsel's errors created
the possibility of prejudice, but rather "that they worked to his actual and substantial
disadvantage, infecting his entire trial with errors of constitutional dimension." Murray v.
Carrier. 477 U.S. 478,494 (1986) (citations omitted, emphasis original). The two prongs ofthe
Strickland test are "separate and distinct elements of an ineffective assistance claim," and a
successful petition"must showboth deficient performance and prejudice." Spencer. 18 F.3d at
233. Therefore, a court need not review the reasonableness of counsel's performance if a
petitioner fails to show prejudice. Ouesinberrvv. Tavlore. 162 F.3d 273,278 (4th Cir. 1998).
In its Order denyingand dismissing Perry's state habeas corpus petition, the trial court
expressly found that Perryhad "shownno erroror prejudice in the alleged failures of her [sic]
attorney to impeach witnesses, subpoena witnesses or phone records, protectpetitioner's right to
a speedy trial, object to alleged prosecutorial misconduct or to raise a Due Process claim about
questioning with respect to petitioner's failure to make a statement to the police." Resp. Ex. 7 at
2. Because the trial court's order was the last reasoned state court decision on the claims at issue,
its reasoning is imputed to the Supreme Court of Virginia, which refused further appeal without
explanation. See Ylst v. Nunnemaker. 501 U.S. 797, 803 (1991).
In his first subclaim, Perry asserts that he received ineffective assistance when his
attorney failed to impeach Crystal Murphy and Horace Henry with the alleged fact that both were
either on probation or parole at the time of trial. Pet. Brief, at 6. Perryfaults counsel for failing
to bringto the court's attention the alleged fact that Henry had been incarcerated in Maryland for
a crime of moral turpitude duringpretrial proceedings, and Murphywas on supervised probation
and had "clear animosities" toward Perry because he was divorced from her cousin. Id. at 6 - 7.
However, contrary to petitioner's supposition, a party may impeach a witness' credibilityonly by
showing the fact and number of prior felony convictions, but not by inquiring as to the nature of
the offenses. Able v. Commonwealth. 16 Va. App. 542, 546,431 S.E.2d 337, 339 (1993).
Moreover, only a conviction, and not the revocation of probation, may be used to impeach a
witness. Willis v. Commonwealth. 1996 WL 191109 at *2 (Va. App. Apr. 23,1996). Here,
then, counsel could not have elicited information from Henry and Murphy regarding whether
they had committed crimes involving moral turpitude. Further, the record reveals that defense
counsel thoroughly cross-examined both Murphy, Tr. 2/13/08 at 33 - 41, and Henry, id. at 56 73, and the law is clear that the manner of cross-examination is a tactical choice that is left to the
discretion of the attorney. Sallie v. North Carolina. 587 F.2d 636, 640 (4th Cir. 1978), cert,
denied. 441 U.S. 911 (1979). Here, then, Perry fails to demonstrate a reasonable probability that
the outcome of his bench trial would have been different had counsel inquired of the first two
witnesses whether they had previous convictions, so the state courts' rejection of his first
subclaim of ineffective assistance was not contrary to or an unreasonable application of clearly
established federal law. Cf. Strickland, supra. Accordingly, the claim must likewise be denied
here. Williams. 529 U.S. at 412-13.
In his second subclaim, Perry argues thatcounsel provided ineffective assistance by
failing to subpoena Rodney Stukes for trial. However, petitioner fails to profferthe substance of
the testimony Stukes would have offered had he been called to testify. In fact, in the
memorandum Perry filed in support of hisstate habeas corpus application, he admitted, "[A]ny
proffer of what the testimony of Stukes would havebeenmaybe construed as mere speculation
at this point...." Resp. Ex. 6 at 10. Similarly, in this federal proceeding, Perry concedes that
"[A]ny proffer of what Stukesf testimony] would have been may be open to discussion ...." Pet.
Brief at 8. In federal jurisprudence, it is well established that a claim of ineffective assistance
predicated on a failure to call witnesses fails where affidavits verifying the witnesses' testimony
are not provided. See Bassette v. Thompson. 915 F.2d 932, 941 (4th Cir.), cert, denied. 499 U.S.
982 (1991) (in the absence of particulars as to what an adequate investigation would have
revealed or a proffer of what absent witnesses would have said, a claim of ineffective assistance
based on general assertions that additional witnesses should have been called will not lie). Here,
where Perry has offered no affidavits to demonstratewhat favorable evidence or testimony the
missingwitness wouldhave produced at his trial, the state courts' rejection of his claim of
ineffective assistance for failing to call the witness was based on a reasonable determination of
the facts, and was not contrary to or an unreasonable application of clearly established federal
law. Accordingly, that same result must occur here. Williams. 529 U.S. at 412-13.
In his third subclaim, Perry charges his attorney with providing ineffective assistance by
failing to subpoena Crystal Murphy's cell phone records. According to Perry, the records would
have undermined Murphy's testimony that Perry called her many times on the day of the crimes,
which differed from the testimony of Horace Henry that there were "maybe three" calls, Tr.
2/13/08 at 67, and that of petitioner himself, who asserts there was a single call. Pet. Mem. at 8.
However, since Horace Henrypositively identified Perryas the person who shot him while he
was unarmed, Tr. 2/13/08 at 50 - 52, petitioner cannot show that he suffered prejudice when
counsel failed to impeach Murphy on the collateral issue of the number of times he called
Murphy that day. Accordingly, the state courts' denial of relief on this claim was based on a
reasonable determination of the facts and was not contrary to or an unreasonable application of
the principles of Strickland, supra, so the same result must pertain here. Williams. 529 U.S. at
412-13.
In his fourth subclaim, Perry argues that his counsel erred by failing to protecthis right to
a speedy trial. Respondent has supplied a copy of the trial court docket which demonstrates that
the several continuances were granted which were attributed to the defense. Resp. Ex. 10. Perry
argues here only in the most conclusory terms that his right to a speedy trial should have been
safeguarded by the trial court "regardless" of these continuances. Pet. Brief at 9. Such an
argument falls far short of rebutting the state court's finding that Perry failed to how either error
or prejudice in his attorney's performance. Resp. Ex. 7 at 2. Since the statecourt expressly relied
on the controlling authority of Strickland in reaching its determination, and as Perry has made no
showing that that conclusion was based on an reasonable determination of the facts, the claim
likewise warrants no federal relief. Williams. 529 U.S. at 412-13.
In his fifth subclaim, Perry argues that his attorney provided ineffective assistance by
failing to object to prosecutorial misconduct which allegedly occurred when the criminal records
of two of its witnesses, Crystal Murphy and Horace Henry, were not provided to the defense. Pet.
Brief at 10. However, Perry's supposition that the witnesses' criminal records constituted Bradv
material is misplaced.2 "Inorder for a defendant to establish a Bradv violation, hemust
demonstrate that the undisclosed evidence was exculpatory and material either to theissue of guilt
or to the issue of punishment. Themere possibility that 'undisclosed information might have
helped the defense, or might have affected the outcome of the trial, does not establish 'materiality'
in the constitutional sense." United States v. Aeurs. 427 U.S. 97,109-10 (1976). Here, as the
witnesses' criminal records were immaterial to the issues of Perry's guilt or punishment, the
Commonwealth was under no obligation to provide them to the defense, and Perry's counsel
made no error in failing to object on that basis. Therefore, Perry's contrary argument warrants no
§ 2254 relief.
In his sixth subclaim, Perry contends that his attorney erred by failing to raise a due
process objection when the prosecutor cross-examined Perry on whether he had made a statement
to the police. However, as the record demonstrates, the prosecutor did not attempt to elicit any
response Perry made to the police after he was placed in custodial arrest or after we was given his
Miranda warnings. Tr. 2/13/08 at 152. Because "the Constitution does not prohibit the use for
impeachment purposes of a defendant's silence prior to arrest," Jenkins v. Anderson. 447 U.S.
231,239 (1980), Perry's due process rights were not violated by the prosecutor's questioning, and
his counsel made no error of constitutional dimension in failing to object on that basis.
Accordingly, the state court's rejection of this claim may not be disturbed here. Williams. 529
U.S. at 412-13.
2See Bradv v. Maryland. 373 U.S. 83 (1963).
10
B. Trial Error
In his first subclaim of trial court error, Perry challenges the sufficiency of the evidence to
sustain hisconvictions. When he raised this same argument on direct appeal, the Court of
Appeals rejected it on the following holding:
In his petition for appeal, appellant claims the trial court erred by
accepting as credible the Commonwealth's witnesses. He does not
argue thattheCommonwealth's witnesses, if believed, failed to prove
anyspecific element ofanyspecific charge. Appellant merelycontends
'their conflicting stories and lack of specificity raises serious doubts
about their validity.'
When addressing the sufficiency of the evidence, we 'presume the
judgment of the trial court to be correct' and reverse only if the trial
court's decision is 'plainly wrongor withoutevidenceto support it.'
Kelly v. Commonwealth. 41 Va. App250, 257, 584 S.E.2d 444, 447
(2003) (en banc) (citations omitted); see also Haskins v.
Commonwealth. 44 Va. App. 1, 7, 602 S.E.2d 402, 405 (2004). A
reviewing court does not 'ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.'
Jacksonv.Virginia. 443 U.S. 307,318-19(1979)(emphasis in original
and citation omitted). We must instead ask whether " 'any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.' " Kellv. 41 Va. App. at 257, 584 S.E.2d
at 447 (quoting Jackson. 443 U.S. at 319 (emphasis in original))....
*
*
*
In this case, the court accepted as credible the testimony of Ms.
Murphy, Mr. Henry, and Mrs. Dawson, and rejected the testimony of
appellant.... Though the testimonyofthe Commonwealth's witnesses
included inconsistencies, the 'powerto segregate a witness's testimony
into the believable, partly believable, or wholly unbelievable is an
exercise of decisional discretion intrinsic to the factfinding task and
essential to its properperformance.' Harper v. Commonwealth. 49 Va.
App., 517, 523, 642 S.E.2d 779, 782 (2007). Nothing in this record
demonstrates that the trial court's resolution of these discrepancies
adverseto appellantwas plainlywrong or without evidence to support
it.
Perry v. Commonwealth, supra, slip op. at 3 - 4.
11
On federal habeas review, the standard for a claim challenging the sufficiency of the
evidence supporting a state conviction is"whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307, 319 (1979) (emphasis
original). The federal court is required to give deference to findings of fact made bythe state
courts, and this presumption of correctness applies to facts found byboth trial and appellate
courts. 28 U.S.C. § 2254(d); Sumnerv. Mata. 449 U.S. 539, 546-47 (1981); Wilson v. Greene.
155 F.3d 396,405-06 (4th Cir. 1998) (citingWright v. West. 505 U.S. 277,292 (1992) for the
holding thata federal habeas court is prohibited from either "considering] anew thejury's guilt
determination or "replacing] the state's systemof direct appellate review"). Instead, the federal
court must determine only whether the trier of fact made a rational decision to convict. Herrera v.
Collins. 506 U.S. 390,402 (1993).
Here, for the reasons which were thoroughly expressed in the Court of Appeals' opinion,3
it is apparent that a rational trier of fact could have found Perryguiltyof the charges he faced. See
Jackson. 443 U.S. at 319. Therefore, the state courts' denial of relief on petitioner's challenge to
the sufficiency of the evidence was neithercontrary to, nor an unreasonable application of, clearly
established federal law, nor was it based on an unreasonable determination of the facts.
Accordingly, the same result is compelled here. Williams. 529 U.S. at 412-13.
In his second claim of trial error, Perry asserts that his rights under the Fifth Amendment
were violated when the court erroneously admitted evidence that he had not made a statement to
3
Again, because the Supreme Court ofVirginia affirmed the decision of the Court of Appeals
without explanation, the Court of Appeals' reasoning is imputed to the Supreme Court. Ylst. 501
U.S. at 803.
12
the police. On direct appeal, the Court ofAppeals rejected this argument for the following
reasons:
Appellant also argueshis FifthAmendment rightswere violatedwhen
the trial court erred in permitting the prosecution to question his
contact with police about the offenses.
'Takingthe stand to testify on the merits in a criminal proceeding is a
once-and-for-all
waiver
of the
privilege."
Blackman
v.
Commonwealth. 45 Va. App. 633, 641, 613 S.E.2d 460, 464 (2005)
(quoting JohnL.Costello, Virginia Criminal Law&Procedure §43.73, at 588 (3d ed. 2002)). In other words, a "testifying accused waives
hisprivilege against self-incrimination 'absolutelyandin all respects.'
" Id (citation omitted and emphasis in original); see also Code § 19.2268 (providing that an "accused may be sworn and examined in his
own behalf, and ifso sworn and examined, he shall be deemed to have
waived his privilege ofnot giving evidence against himself, and shall
be subject to cross-examination as any other witness.").
In his petition for appeal, appellant broadenshis argument beyond the
Fifth Amendment to encompass the due process doctrine announced
in Dovle v. Ohio. 426 U.S. 610 (1976). Dovle held that "the use for
impeachment purposes of [a defendant's] silence, at the time ofarrest
and after receiving Miranda warnings, violate[s] the Due Process
Clause of the Fourteenth Amendment.'" Brecht v. Abrahamson. 507
U.S. 619,628 (1993) (quotingDoyle, 426 U.S. at 619). However, "the
Constitution does not prohibit the use for impeachment purposes ofa
defendant's silence prior to arrest, Jenkins v. Anderson. 447 U.S. 231,
239 (1980), or after arrest if no Miranda warnings are given, Fletcher
v. Weir. 455 U.S. 603, 606-07 (1982) ( per curiam)." Id "In the
absence of the sort ofaffirmative assurances embodied in the Miranda
warnings, we do not believe that it violates due process of law for a
State to permit cross-examination as to postarrest silence when a
defendant chooses to take the stand." Fletcher. 455 U.S. at 607.
Appellant did not raise a due process objection at trial and, thus,
cannot do so for the first time on appeal. See Rule 5A: 18. Even if he
could, the argument has no merit. No evidence suggests that the
prosecutor's questioning of appellant sought to elicit any response he
may have made to police interrogation afterbeing placed in custodial
arrest and afterbeing given his Miranda warnings. As a matter oflaw,
therefore, the Dovle due process objection - had it been specifically
13
made in the trial court - would have nonetheless been unsuccessful
based upon the record before us.
Insum, thetrial court didnotviolate theappellant's FifthAmendment
rights bypermitting cross-examination ofappellant. Appellant's due
process argument in his petition cannot be raised for the first time on
appeal and has no merit in any event.
Perry v. Commonwealth, supra, slip op. at 5 - 6.
The record reveals that Perry was fullyaware that he would waive his Fifth Amendment
rights ifhe chose to testify in his own defense. Before Perry testified, the following colloquy with
defense counsel occurred:
DEFENSE COUNSEL: Have I also explained to youthat if you
testify, that you will be cross-examined by the Commonwealth's
attorney?
PERRY: Yes, sir.
DEFENSE COUNSEL: HaveI also explained to you that you
don't have the choice of answering certain questions and not
answering other questions?
PERRY: Yes, sir.
Tr. 2/13/08 at 133.
During cross-examination, the following exchange occurred:
PROSECUTOR: Were you contacted by the policeshortly afterthis
incident?
PERRY: Yes, they sent a letter.
PROSECUTOR: And did you talk with them about what happened?
DEFENSE COUNSEL: Judge, I think he has a Fifth Amendment
privilege not to do that. So I would object.
THE COURT: I think she can ask.
14
DEFENSE COUNSEL: I disagree. Idon't think she can ask the question.
THE COURT: He's the one that took the witness stand. He's
waived his Fifth Amendment rights.
PROSECUTOR: Did you talk to the police about what happened
that night?
PERRY: No.
Tr. 2/13/08 at 152.
It is well settled in federal jurisprudence that a defendant who testifies waives his Fifth
Amendment privilege in all areassubject to propercross examination. Brownv. United States.
356 U.S. 148, 154-56 (1958). Since itis apparent that petitioner was well aware that choosing
to testify would result in such a waiver, the decision ofthe Court ofAppeals ofVirginia that
Perry's Fifth Amendment rights were not violated during cross examination was both factually
reasonable and in accord with clearly established federal law. Accordingly, that same result must
pertain here. Williams. 529 U.S. at 412-13.
As he did in the state courts, Perrytries to interject a Due Process issue into his claim. Pet.
Briefat 15-16.However, the Court ofAppeals ofVirginia declined to entertain that argument,
finding that it had not been preserved in the trial court and hence was defaulted pursuant to Rule
5A:18 ofthe Rules ofthe Supreme Court ofVirginia. Such an express finding ofprocedural
default bya state court is entitled to a presumption of correctness provided two foundational
requirements aremet. Harris v. Reed. 489 U.S. 255, 262-63 (1989); Clanton v. Muncv. 845 F.2d
1238,1241 (4th Cir. 1988) (citing 28 U.S.C. §2254(d)). First, the state court must explicitly rely
on the procedural ground to deny petitioner relief. Second, the stateprocedural rule furnished to
default petitioner's claim must bean independent and adequate state ground for denying relief.
15
Id at 260; Ford v. Georgia. 498 U.S. 411,423-24 (1991). When these two requirements have
been met, federal courts may not review the barred claims absent a showing of cause and
prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris. 489 U.S. at
260. Both of the Harris requirements appear to be met by the Virginia court's express holding that
the due process claim Perry raises here was defaulted in the state forum. As Perry made no
attempt to show cause and prejudice after the respondent invoked the procedural bar defense,
Resp. at 17, his due process argument is procedurally defaulted from federal consideration on the
merits. Yeatts v. Aneelone. 166 F.3d 255,261-62 (4th Cir. 1999) (finding a federal habeas
court's sua sponte dismissal of procedurally defaulted claims permissible where petitioner is
provided notice and an opportunity to argue against dismissal).
IV. Conclusion
For the foregoing reasons, respondent's Motion to Dismiss will be granted, and this
petition will be dismissed, with prejudice. An appropriate Order shall issue.
Entered this /?
day of \TforJ .
2012.
Alexandria, Virginia
Anthony J. Trenga
United States District Judge
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?