Baker v. Director of VA DOC

Filing 11

MEMORANDUM OPINION re: 6 MOTION to Dismiss by Director of VA DOC. (See Memorandum Opinion For Details). Signed by District Judge Liam O'Grady on 12/15/11. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

DEC I 5
Maurice Antoine Baker a/k/a

Maurice Antione Baker,
Petitioner,
v.

Harold W. Clarke,
Respondent.

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l:llcv562(LO/TRJ)

MEMORANDUM OPINION

Maurice Antoine Baker a/k/a Maurice Antione Baker, a Virginia inmate proceeding pro
sc, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the

constitutionality of his conviction in the Circuit Court of the City of Norfolk. On August 12,
2011, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief
and exhibits. Baker 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 following reasons,
respondent's Motion to Dismiss must be granted, and the petition will be dismissed, with
prejudice.
I. Background

On June 4, 2009, Baker was convicted following a jury trial of first degree murder and
use of a firearm to commit that felony. On August 11, 2009, Baker was sentenced to serve an

aggregate of 49 years in prison, to be served consecutively with all other sentences.
Commonwealth v. Baker. Case No. CR08003262-00 and -01; Resp. Ex. 1. The opinion of the

Virginia Court of Appeals issued on petitioner's direct appeal reflects the following underlying

1

facts:

... [Djuring the early morning hours on January 26,2008, appellant,
Yarnell Norman, and Timothy Yates were at a nightclub. Walter
Moore was also at the club and had arranged to ride to a party with
appellant. Moore testified that as the club was closing, he waited out
front for appellant to pick him up. At that time, he saw Norman and
Yates arguing outside. When appellant arrived at the front of the
nightclub, Moore began to get into appellant's car. At the same time,

appellantexited the vehicle with a handgun. Appellant fired the gun
several times in the direction of Yates.

Norman ran and then

reappeared with a handgun. Norman also began firing at Yates.
Norman then jumped into appellant's vehicle, and they sped off.
Yates was struck and killed during the shooting.

Baker v. Commonwealth. R. No. 1799-09-1 (Va. Ct. App. Mar. 31,2010), slip. op. at 2; Resp. Ex.
2.

Baker filed a direct appeal of his convictions, raising the following claims:
1.

The trial court erred in refusing his proffered jury
instruction on the shared criminal intent necessary to
convict a defendant under the theory of concert of
action.

2.

The trial court erred in refusing to strike the
Commonwealth's evidence.

Resp. Ex. 2. A judge of the Court of Appeals denied Baker's petition for appeal on March 31,
2010, Resp. Ex. 2, and the Supreme Court of Virginia subsequently refused his petition for
further review. Baker v. Commonwealth. R. No. 100835 (Va. Sept. 13, 2010); Resp. Ex. 5.
Baker filed no application for state habeas corpus relief, choosing instead to submit this § 2254

petition on May 9,2011.' Baker reiterates the same claims he made on direct appeal. As
'A pleading submitted by an incarcerated person is deemed filed when the prisoner delivers it to
prison officials for mailing. Lewis v. Citv ofRichmond Police Dep't. 947 F.2d 733 (4th Cir. 1991);
see also Houston v. Lack. 487 U.S. 266 (1988). Here, Baker certified that he placed his habeas
application in the prison mailing system on May 9, 2011, Pet. at 15, and it was date-stamped as

respondent has filed a Motion to Dismiss and Rule 5 Answer, and petitionerhas opted to file no
reply, the matter is now ripe for review.
II. Exhaustion

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 of the State's established
appellate review process." O'Sullivan v. Boerckel. 526 U.S. 838, 845 (1999). Thus, a petitioner

convicted in Virginiamust first have presentedthe same factual and legal claims raised in his §

2254 application to the Supreme Court of Virginia on direct appeal, or in a state habeas corpus

petition. See, e^, Duncan v. Henrv. 513 U.S. 364 (1995). In addition, in order to preserve the
right to federal collateral review, a petitioner musthave fairly presented to the statecourts a
claim that his federal rights were violated. Id. at 365.

Here, it is arguable that Baker's claimswerenot properly exhausted, as they were not

expressed as errors of constitutional dimension when presented onhis direct appeal, and no
federal constitutional principles or case law were cited in support of his position. Resp. Ex. 2.

However, 28 U.S.C. § 2254(b)(2) now permits a federal court, in its discretion, to deny on the
merits a habeas corpus claim despite the applicant's failure to exhaust available remedies in state
court. See Swisher v. True. 325 F.3d 225,232-33 (4th Cir.), cert, denied. 539 U.S. 971 (2003)

received by the Clerk on May 18, 2011. Pet. at 1. Respondent acknowledges correctly that the
petition was timely filed, inaccordance with 28 U.S.C. § 2244. Resp. Briefat 2.

(affirming district court's discretionary decision to elect to deny habeas corpus relief on the
merits pursuant to § 2254(b)(2), although claim was "clearly unexhausted"). Because the claims
raised in this petition are clearly without merit, the Court will exercise that discretion here.
III. 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. Tavlor. 529 U.S. 362,412-13 (2000). A state court's

determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to

thatreached by [the United States Supreme] Court on a question of law or if the state court
decides a case differently than [the United States Supreme] Court has on a set of materially
indistinguishable facts." Id,at 413. Under the "unreasonable application" clause, thewrit should
be granted if the federal court finds that thestatecourt "identifies the correct governing legal

principle from [the Supreme] Court's decisions but unreasonably applies that principle to the
facts of theprisoner'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 theclaims rather than the petitioner's free-standing claims
themselves." McLee v. Aneelone. 967 F.Supp. 152,156 (E.D. Va. 19971 appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).

IV. Analysis
A. Claim One

In the first claim of this petition, Bakercontends that the trial court erred in refusing his
proffered special jury instruction on the shared criminal intent necessary to convict a defendant

under the theory of concert of action. As respondent argues, this claim is procedurally defaulted
from federal review. When Baker made the same argument on direct appeal, the Court of
Appeals held as follows:
... [Appellant] contends the trial court erred 'in refusing to grant [his]
jury instructions on the shared criminal intent necessary to convict
[him] under the theory of concert of action.'

Appellant's instructions, however, do not appear in the record.
Additionally, the transcript does not provide us with the texts of the
disputed instructions. We cannot pass judgment on the
appropriateness of the trial court's rejection of appellant's
instructions without knowing precisely what they said.

Under

settled

principles,

'the circuit court's judgment is

presumptively correct and the burden is on the appellant to present a
sufficient record to permit a determination whether the circuit court
committed an alleged error.' Commonwealth v. Williams. 262 Va.
661, 669, 553 S.E.2d 760, 764 (2001).

We cannot rely on the

appellant's 'petition or brief,' Oliver v. Commonwealth. 35 Va. App.
286, 296 - 97, 544 S.E. 2d 870, 875 (2001) (citation omitted), or
'counsel's recollection ofwhat occurred' in the trial court. Bryant v.

Commonwealth. 189 Va. 310, 320, 53 S.E.2d 54, 59 (1949). We

must rely solely on the trial court record. Id. For these reasons, we
hold that appellant's failure to ensure that the record includes the
texts of the instructions precludes us from evaluating his claim that
the trial court erred by refusing them.
Baker v. Commonwealth, supra, slip op. at 1 - 2.

On federal habeas corpus review, a state court's finding of procedural default is entitled

to a presumption of correctness, Clantonv. Muncv. 845 F.2d 1238,1241 (4th Cir. 1988) (citing

28 U.S.C. § 2254(d)), provided two foundational requirements are met, Harris v. Reed. 489 U.S.

255, 262-63 (1989). First, the state court must explicitly rely on the procedural ground to deny
petitioner relief. Id Second, the state procedural rule furnished to default petitioner's claim
must be an independent and adequate state ground for denying relief. 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.

Here, the Virginia court dismissed petitioner's first claim on the basis of the settled

procedural rule that an appellant must supply the appellate court with a record that is adequate to
allow the court to rule on the claims presented. This rule is consistently applied in Virginia. See.
e.g.. Shaikh v. Johnson. 276 Va. 537, 545,666 S.E.2d 325, 328 (2008) ("[T]he onus is upon the

appellant to provide [the appellatecourt] with a sufficientrecord from which [it] can decide
whether the trial court erred as alleged. A failure to furnish a record will result in an affirmance

of the judgment appealed from."); White v. Morano. 249 Va. 27, 30,452 S.E.2d 856, 858 (1995)

("If an insufficient record is furnished, the judgment appealed from will be affirmed.") Federal

courts previously have recognized that this requirement constitutes an adequate and independent
state law ground for dismissal. See Thomas v. Johnson. 2008 WL 517011 at *5 (W.D. Va. Feb.

25, 2008), appeal dismissed. 286 Fed. App'x 107 (4th Cir. Aug. 8,2008) (holding that the
"transcriptrule" is "well-established and regularly enforced," and "provides an adequate and
independent state law ground for dismissal"); Cutchin v. Pearson.2006 WL 2659982 at *4
(W.D. Va. Sept. 15, 2006), appeal dismissed. 216 Fed. App'x 377 (4th Cir. Feb. 8, 2007), cert,
denied. 552 U.S. 876 (2007) (holding that the "indispensable transcript rule, Rule 5A:8 of the

Supreme Court of Virginia" is "an independent and adequate state law ground for dismissal.")
In response to respondent's invocation of the procedural bar defense as to his first claim, Baker
has come forward with no showing of cause and prejudice or a fundamental miscarriage of

justice. Cf Harris. 489 U.S. at 260. Therefore, the first claim of this petition is procedurally
barred from consideration on the merits.2
B. Claim Two

In the second claim of this petition, Baker argues that the trial court erred in denying his
motion to strike the Commonwealth's evidence because there was insufficient evidence that

Baker shared the criminal intent of the victim's principal assailant and no evidence that he fired
the fatal shot. On direct appeal, the Virginia Court of Appeals found this argument to be without
merit for the following reasons:

2It is true that the Virginia court went on to reject Baker's first claim on the merits in the
alternative, noting that "[w]hen granted instructions fully and fairly cover a principle of law, a trial
court does not abuse its discretion in refusing another instruction relating to the same legal

principle," andholding thatinBaker's case,"[t]hegranted jury instructions onconcert of action fully
and fairly covered the principle of law." Baker v. Commonwealth, supra, slip op. at 2, quoting
Gaines v. Commonwealth. 39 Va. App. 562,568,574 S.E. 2d 775,778 (2003) (en banc). That does

not change the result here for two reasons. First, it is well established that when a state court has
ruled in the alternative that a claim is both procedurally defaulted and without merit, a federal court
on habeas review should apply the procedural bar. Harris. 489 U.S. at 264, n. 10 ("[A] state court

need not fear reaching the merits of a federal claim in an alternative holding. By its verydefinition,
theadequate andindependent stategrounddoctrine requires the federal courtto honora stateholding
that is a sufficient basis for the state court's judgment, even when the state court also relies on

federal law.")(emphasis original). Second,if it were appropriate to reach the merits of Baker's first
claim, he would be entitled to no relief. The propriety of state court jury instructions is a matter of
state law. Chance v. Garrison. 537 F.2d 1212,1215(4thCir. 1976), and "[i]t is only in circumstances
where instructionsimpinge on fundamental fairness or infringe on specific constitutionalor federal

protections thata federal question is presented," such thatreliefunder § 2254 would be available.
Grundler v. North Carolina. 283 F.2d 798, 802 (4th Cir. 1960). Because the instructions the jury
received on concert ofaction in Baker's case "fully and fairly covered the principle of law," Baker.

slip op. at 2, he cannot make such a showing here.

The police recovered eight cartridge casings at the crime scene. All
were fired from the same gun which was recovered near appellant's
vehicle after the police pursued appellant.

Deante Mitchell testified appellantadmitted shooting Yates and that
after he fired, he gave the gun to Norman, who also fired at Yates.
Omar Alston also testified appellant admitted he and Norman shot
Yates. Appellant told Allston that he and Norman had planned to rob
Yates after observing him flashing money at the club. He explained
Norman planned to hold Yates until appellant arrived with the gun.
Another witness observed the shooting and indicated both men shot
at Yates using the same weapon.
We have defined 'concert ofaction' as an 'action that

has been planned, arranged, adjusted, agreed on and
settled between the parties acting together pursuant to
some design or scheme.' All participants in such
planned enterprises may be held accountable for
incidental crimes committed by another participant
during the enterprise even though not originally or
specifically designed.
Berkeley v. Commonwealth. 19 Va. App. 279.283.451 S.E.2d 41.43

(1994) (quoting Rollston v. Commonwealth. 11 Va. App. 535,542,
399 S.E.2d 823, 827 (1991)). Thus, 'where two or more people act
in concert in the commission of a felony, and one felon shoots a

person, that felon's intent is transferred and shared with the other
felon as a principalin the seconddegree.' Riversv. Commonwealth.
21 Va. App. 416, 421 - 22, 464 S.E.2d 549, 551 (1995) (quoting
Berkeley. 19 Va. App. at 293,451 S.E.2d at 48).
In this case, although the evidence indicates Norman fired the fatal
shot, the evidence also established that appellant and Norman acted

together pursuant toa scheme which involved robbing thevictim with
a gun. Appellant also fired the weapon whichNorman later used to
kill Yates. The record fully supports the jury's conclusion that
appellant was accountable for Yates' death. The Commonwealth's
evidence was competent, was not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that appellant was

guilty of first-degree murder and use of a firearm during the
commission of a felony.

Baker v. Commonwealth, supra, slip. op. at 2 - 3. Becausethe foregoing order was the last

reasoned state court decision on the claim 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).

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 by state trial
and appellate courts, 28 U.S.C. § 2254(d); Sumner v. Mata. 449 U.S. 539, 546-47 (1981), and a

petitioner can rebut this presumption of correctness only by "clear and convincing evidence."
Hill v. Ozmint. 339 F.3d 187,194 (4th Cir. 2003). The federal inquiry is not whether the trier of

fact made the correct determination of a petitioner's guilt or innocence, but instead is concerned

only whether the trier of fact made a rational decision to convict. Herrera v. Collins. 506 U.S.
390,402 (1993); Wilson v. Greene. 155 F.3d 396,405-06 (4th Cir. 1998) (citing Wright v.

West. 505 U.S. 277,292 (1992) for the holding that a federal habeas court is prohibited from
either "considering] anew the jury's guilt determination or "replacing] the state's system of
direct appellate review").
Here, for the reasons which are thoroughly explained in the Court of Appeals' opinion, it

is apparent that a rational trier of fact could have found Baker guiltyof the murderwith whichhe
was charged. See Jackson. 443 U.S. at 319. In his argument in support of his contrary claim,
Baker essentially urges the Court to revisit the testimony and evidence and to weigh it differently

than did the trier of fact, a process which is not permitted on § 2254 review. Wilson. 155 F.3d at

405-06; sec also. Marshall v. Lonbcrger. 459 U.S. 422, 433 (1983) (holding that a federal court
on habeas review has no license to re-determine the credibility of witnesses). Because the state
courts' determination that Baker's conviction is supported by sufficient evidence was neither

contrary to, nor an unreasonable application of, controlling federal law, Jackson, supra, and was
not based on an unreasonable interpretation of the record facts, the same conclusion is compelled
here. Williams. 529 U.S. at 412 - 13.
V. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss will be granted, and this

petition for a writ of habeas corpus will be dismissed, with prejudice. An appropriate Order shall
issue.

Entered this

\£" day of *\\ W^>^

2011.

Alexandria, Virginia
1st

LiamO'Grady

United States District Judge

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