Parker v. Kelly

Filing 18

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 2/3/2012. (rban, )

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

Kevin Wayne Parker,
Petitioner,

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Loretta Kelly
Respondent.

l:llcv749 (LMB/TRJ)

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mfmor ANDIIM OPINION

Kevin Wayne Parker, aVirginia inmate proceeding pro se, has filed apetition for awrit
ofhabeas corpus, pursuant to 28 U.S.C. §2254, challenging the constitutionality ofhis
conviction following abench trial in the Circuit Court for the City ofRichmond, Virginia. On

September 21,2011, respondent filed aRule 5Answer accompanied by aMotion to Dismiss and
supporting brief. Parker was given the opportunity to file responsive materials, pursuant to
R^hnrn v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he has filed aresponse. Accordingly,

this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to
Dismiss must be granted, and the petition must be dismissed.
I. Background

Parker, aformer apartment maintenance worker, used his building key to break into a

tenant's apartment. He raped, stabbed, and bound the tenant with duct tape. He also stole her
debit card and obtained its pin number. On March 25,2008, following abench trial, the Circuit
Court for the City ofRichmond convicted Parker ofrobbery, statutory burglary, malicious

wounding, and unlawful wounding. Commonwealth v. Parker, CR07F-810, CR07F-811,
CR07F-6163, CR07F-6164, CR07F-6165. The trial court sentenced Parker to atotal aggregate

sentence of 150 years in prison, with 110 years suspended.

Parker appealed his conviction to the Court ofAppeals ofVirginia, alleging three grounds
for relief. The Court ofAppeals granted Parker an appeal on the first two issues. Following
briefing and argument, the Court ofAppeals affirmed the convictions in an unpublished decision
entered on May 19,2009. p^v Commonwealth. R. No 0787-08-2. Parker sought further
appeal on all three grounds in the Supreme Court ofVirginia, which refused the appeal on
September 19,2009. Parker v. Commonwealth. R. No. 091233
Parker then filed astate petition for writ ofhabeas corpus in Circuit Court for the City of

Richmond, Virginia. The following claims are the ones raised by Parker that are relevant to the
adjudication ofthe instant petition:

A.

He received ineffective assistance oftrial counsel because
counsel failed to:

1) conduct areasonable pre-trial investigation; specifically
he failed to seek forensic testing ofseveral specified
pieces of evidence;

2) advise Parker he could seek the appointment ofaDNA
expert to assist inhis defense.

The Circuit Court denied and dismissed the petition in Order dated June 28,2010. Parker

appealed that decision to the Supreme Court ofVirginia, which refused his appeal on May 26,
2011. Parker v. Commonwealth. No. CL10000926-00.

On July 7,2011, petitioner timely filed the instant petition,1 arguing that he received

1Apleading submitted by an unrepresented prisoner is deemed filed when the P"™^™*
the pleading to prison officials for mailing. Lewis v. City ofRichmond Police Pep t 947'¥2d
733 (4th Cir. 1991); ~ ^ Houston v. Lack. 487 U.S. 266 (1988). Here, Parker certified that he
«i.«U hi. nation into the orison mailing system on July 7,2011. Pet. at 14, ECF No. 1.
placed his petition
prison

ineffective assistance of counsel because trialcounsel failed to conduct a reasonable

investigation when he refused to seek forensic testing of(1) the victim's bed, (2) the knife, and
(3) tissues that possibly contained the attacker's ejaculate. See Attachment to Pet. at 13; ECF
No. 1.

II. Procedural Bar

Where a statecourthas determined that a claim has been procedurally defaulted, its

finding is entitled to apresumption ofcorrectness on federal habeas corpus review, provided two
foundational requirements are met. Harris v. Reed. 489 U.S. 255,262-63 (1989); Clantonv.
Muncv. 845 F.2d 1238,1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)). First, the state court

must have relied explicitly on the procedural ground to deny petitioner relief. Id Second, the

state procedural rule relied on 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 ofcause and prejudice or afundamental miscarriage ofjustice, such as actual innocence.
Harris. 489 U.S. at 260.
A. Claims fn and (21

Under these principles, Parker's first two claims are procedurally defaulted. Parker

presented his first and second claims to the Supreme Court ofVirginia during his state habeas

proceedings, therefore those claims are exhausted.2 However, the Supreme Court ofVirginia
dismissed those claims because theappeal was notperfected as required by Rule 5:17(c)(l)(iii),

2Parker appealed the circuit court's denial ofhis state habeas petition tothe Virginia Supreme
Court. In his supporting brief he argued that his trial counsel was ineffective for failing to seek
forensic testing ofthe victim's bed sheets and the knife. See Petr's State Br. inSupp. at 11-12.
3

which requires the appellant to list the specific errors in the lower court proceedings upon which
he intends to rely. The Fourth Circuit has held that the procedural default rules set forth in Rule

5:17(c) constitute adequate and independent state-law grounds for decision. See Hendrick v.
True. 443 F.3d 342,360-63 (4th Cir. 2006); Yeatts v. Aneelone. 166 F.3d 255,265. Therefore

these claims are procedurally defaulted from federal habeas review absent cause and prejudice
for the default, ora showing that a fundamental miscarriage ofjustice would occur absent such
review.
B. Claim (3)

Parker failed to exhaust his third claim becausehe did not present it to the Virginia

Supreme Court on either direct appeal or state habeas review. On appeal from the circuit court's
dismissal ofhis state habeas petition Parker did argue that his trial counsel failed toseek forensic

testing ofseveral pieces ofevidence; however, the pieces ofevidence Parker referred to in his
supporting briefwere the knife and the victim's bed sheets. See Petr's State Br. in Supp. at 1112. Parker did notraise counsel's alleged failure totest"tissues thatpossibly contained the

attacker's ejaculate." Nevertheless, this claim is exhausted for purposes offederal review
because a "claim thathas notbeen presented to thehighest state court nevertheless may be
treated as exhausted if it is clear that the claim would be procedurally barred understate law if

the petitioner attempted to present itto 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, if
"the procedural bar that gives rise toexhaustion provides an independent and adequate state-law
ground for the conviction and sentence," this will "prevent[] federal habeas review ofthe
defaulted claim." Id (quoting Gray. 518 U.S. at 162).

In this case, were Parker to attempt to now bring this unexhausted claim before the

Supreme Court of Virginia, it would be procedurally barred as both untimely and successive,
under Virginia Code § 8.01-654(A)(2) and (B)(2), respectively. The Fourth Circuit has held that

the procedural default rules set forth in both § 8.01-654(A)(2) and (B)(2) constitute adequate and
independent state-lawgroundsfor decision. See Claeett v. Angelone. 209 F.3d 370, 379 (4th Cir
2000); Weeks v. Angelone. 176 F.3d 249,273 (4th Cir. 1999). Therefore, this claim is

simultaneously exhausted and procedurally defaulted from federal habeas review absent cause

and prejudice for the default, or a showing that a fundamental miscarriage ofjustice would occur
absent such review.

C. Fundamental Miscarriage of Justice
In Parker's Response to the Motion to Dismiss, he attempts to argue that a fundamental

miscarriage ofjustice will result if his claims are dismissed as procedurally defaulted. The
fundamental miscarriage ofjustice exception usually turns on a claim of actual innocence by the
petitioner. See Murray v. Carrier. 477 U.S. 478,496 (1986). But, in some circumstances the
exception can be used to overcome a lack of "cause" and "actual prejudice" as these "are not
rigid concepts; they take their meaning from the principles of comity and finality." Engle v.

Isaac. 456 U.S. 107, 135 (1982). And, in "appropriate cases those principles must yield to the
imperative of correcting a fundamentally unjust incarceration." Engle. 456 U.S. at 135; see also

Carrier. 477 U.S. at 495-496 ("Accordingly, we think that in an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a showing of cause for the
procedural default.").

In this case, Parker's arguments do not establish that he is a victim ofa "fundamentally
unjust incarceration." Inarguing thata fundamental miscarriage ofjustice will result, Parker

merely reasserts two ofthe claims raised in his federal habeas petition. See Resp. at 2; ECF No.
15 (stating that trial counsel was ineffective for failing to order forensic testing of the knife and
the bed sheets). As discussed above, these claims were rejected on the merits in the circuit court

and denied as procedurally defaulted bythe Supreme Court of Virginia during Parker's state
habeas proceeding. Parker cannot now invoke these same claims as evidence of a fundamental

miscarriage ofjustice.

Furthermore, petitioner also states that his attorney failed to inform him that DNA testing
was available. Petitioner raised this claim in his state habeas petition, and the circuit court

rejected it. Additionally, there is overwhelming evidence inthe record that petitioner was the
perpetrator of these crimes. For example, the forensic nurse examiner testified that the victim

told her five hours after the attack that her assailant was a maintenance worker at her building.
Parker v. Commonwealth. R. No. 0787-080-2. The victim identified Parker from a photo-spread
within twenty-four hours of the incident and at trial she unequivocally stated that she was sure of
his identity. Moreover, it is undisputed that in his capacity as a maintenance man, Parker had
access to the masterkeysto the apartments. And, the day after the crime Parker's co-workers

testified that he wasacting strangely and hadchanged his appearance. Thus, based on the record

it does not appear that Parker is the victim of a "fundamentally unjust incarceration." Engle. 456

U.S. at 135. Therefore, the fact that Parker was not informed ofthe availability ofDNA testing
is not sufficient toconstitute a fundamental miscarriage ofjustice sufficient to excuse procedural
default.

III. Outstanding Motions

Also before the Court is Parker's Rule 6 Motion for § 2254 cases in which he requests

leave to conduct discovery. Because the Motion to Dismiss will be granted and the petition will
be dismissed, Parker's Motion must be dismissed as moot.
IV. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss must begranted and this

petition must be dismissed as procedurally defaulted. Petitioner's Rule 6 Motion will be
dismissed as moot. An appropriate Order shall issue.

Entered this

day of f-j?JfUA a

2012.

T
Leonie M. Brinkema

United States District Judge
Alexandria, Virginia