Ivey v. Clarke
Filing
25
MEMORANDUM OPINION. Signed by District Judge Gerald Bruce Lee on 7/30/14. (gwalk, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Clinton Matthew Ivey,
Petitioner,
I:13cv571 (GBL/TRJ)
v.
Keith W. Davis,
Respondent.
MEMORANDUM OPINION
This matter comes before the Court on review of an application for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254. Clinton Matthew Ivey, a Virginia inmate proceeding pro
se, challenges the constitutionalityof multiple convictions entered in the Circuit Court of the
City of Suffolk, Virginia. OnDecember 6, 2013, respondent filed a Rule 5 Answer accompanied
by a Motion to Dismiss and supporting brief. Ivey was given the opportunity to file responsive
materials, pursuant to Roseboro v. Garrison. 528 F.2d 309(4th Cir. 1975), and he has filed a
response. 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
On November 5,2009, Iveypleaded guilty to statutory burglary, robbery, abduction with
intent for pecuniary gain, aggravated malicious wounding, destruction of property, unauthorized
use of a vehicle, conspiracy to commit credit card theft, use of a firearm in aggravated malicious
wounding, attempted arson, andconspiracy to commit arson of an occupied dwelling, pursuant to
a plea agreement. Record Nos. CR09-000520-00, CR09000522-00, CR09000596-00,
CR09000597-00, CR09000599-00, CR09000600-00, CR09000603-00, CR09000604-00,
CR09000706-00, CR09000836-00. On June 24,2010, the trial court sentencedIvey to a total
aggregate sentence of 119 years in prison, with 75 years suspended; placed him on supervised
probation for life upon his release; andordered him to payrestitution.
Ivey appealed his conviction to the Court of Appeals of Virginia, alleging that the trial
court erred when it sentenced himabove the high endof the sentencing guidelines. The Court of
Appeals affirmed the convictions in an unpublished decision entered on February 2, 2013. Ivey
v. Commonwealth. R. No. 1632-10-1; Dkt. No. 21-1. Ivey sought further appeal inthe Supreme
Courtof Virginia, which refused the appeal on November 15,2011. Ivev v. Commonwealth. R.
No. 111254.
Ivey then filed a statepetition fora writ of habeas corpus on January 6,2012, in the
Circuit Court of the City of Suffolk, Virginia. The court denied and dismissed the petition on
May 22,2012. Case No. CL 12-030. Ivey appealed that decision to the Supreme Court of
Virginia, which, after granting him anextension oftime, refused his appeal onJanuary 29, 2013.
Ivev v. Commonwealth. No. 121614.
On May 1, 2013, petitioner filed the instant petition,1 principally reiterating the same
claims that he raised in his state habeas application.2 Specifically, Ivey alleges that he was denied
effective assistance of both his trial and appellate counsel:
When Trial Counsel:
Al. Failed to properly investigate Ivey's case before advising him to
accept a plea agreement.
A pleading submitted by an unrepresented prisoner is deemed filed when the prisoner delivers
the pleading to prison officials for mailing. Lewis v. City of Richmond Police Dep't. 947 F.2d
733 (4th Cir. 1991); see ajso Houston v. Lack. 487 U.S. 266 (1988). Here, Ivey failed to certify
the date he placedhis petition into the prison mailing system and failed to date his petition. The
envelope that Ivey used to mail his petition was post-marked May 1, 2013. As such, his petition
will be deemed filed as of this date. Pet. at 14, ECF No. 1.
For continuity, this Court uses the same numbering as Ivey used in his state habeas petition,
which is the same numbering the state court used in its opinion denying Ivey's petition.
2
A2. Failed to object to jurisdiction of serving officer on search warrant
along with the arrest warrant.
A3. Failed to appeal the denial of his suppression hearing held on July 16,
2009.
A4. Failed to call witnesses on Ivey's behalf.
A5. Failed to timely go over all the elements of his case to establish a
defense before considering a plea agreement.
A6. Failed to obtain complete discovery from the Commonwealth's
attorney.
A7. Failed to object to conflicting statements between the
Commonwealth's witnesses.
A8. Failed to challenge officer's statement on the time and execution of a
search warrant and an arrest warrant.
A9. Failed to properly review the pleaagreement with Ivey.
A10. Failed to object to theplea agreement being a violation of Ivey's
constitutional rights along with federal and state laws.
B. Failed to withdraw the plea agreement.
All. Failed to challenge the denial of suppression hearing being a
violation ofpetitioner's constitutional rights.3
When Appellate Counsel:
C. Filed a frivolous appeal.
II. Procedural Bar
Where a state court has determined that a claim has been procedurally defaulted, its
finding is entitled to a presumption ofcorrectness on federal habeas corpus review, provided two
foundational requirements aremet. Harris v. Reed. 489 U.S. 255,262-63 (1989); Clanton v.
•3
Ivey did not raise this claim in his state habeas petition.
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 onto default petitioner's claim must bean 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 of justice, suchas actual
innocence. Harris. 489 U.S. at 260.
Under these principles, Ivey's claims A1-A10, B, and C are procedurally defaulted. Ivey
presented these claims to the Supreme Court of Virginia during his appeal from the circuit
court's dismissal of his state habeas petition, therefore those claims are exhausted. However, the
Supreme Court of Virginia dismissed those claims because the appeal was notperfected as
required by Rule 5:17(c)(l)(iii), which requires the appellant to list the specific errors in the
lower courtproceedings uponwhich he intends to rely. The Fourth Circuit has held that the
procedural rule set forth in Rule 5:17(c) constitutes an adequate and independent state-law
ground for decision. SeeHendrick v. True. 443 F.3d 342, 360-63 (4thCir. 2006); Yeatts v.
Angelone. 166 F.3d 255, 265 (4th Cir. 1999). Therefore, these claims areprocedurally 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.
A. Claim (in
Ivey failed to exhaust claim 11 because he didnot present it to the Virginia Supreme
Court on either direct appeal or state habeas review. In his state habeas petition, Ivey did argue
that his trial counsel failed to appeal the denial of his suppression hearing motion, claim 3;
however, in his instant claim he argues
Attorney's failed [sic] to challenge the denial of suppression hearing being a
violation of petitioner's constitutional rights.... By denying suppression hearing
motions on July 16, 2009, petitioner was scared and forced to take a plea
agreement. Rights were violated when facts and law were shown to court and
judge went against the law. Attorney Justin Bush nor Adam Carroll filed an
appeal or even raised an issue of rights being violated.
See Pet. Handwritten insert at 10-11 of 12. Ivey did not raise this claim to the Supreme Court of
Virginia.4 Nevertheless, this claim is exhausted for purposes offederal review 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, if "the procedural bar that
gives rise to exhaustion provides an independent and adequate state-law ground for the
conviction and sentence," this will "prevent[] federal habeas review of the defaulted claim." Id.
(quoting Gray. 518 U.S. at 162).
In this case, were Ivey 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
4Ivey did bring a related argument in his claim 3, which argued that his counsel failed to appeal
the denial of his motion to suppress. In claim 11, however, Ivey contends that the denial of his
motion to suppressviolated his "constitutional rights,"though Ivey fails to elaborate which rights
were violated or how his rights were violated. Even assuming without deciding that his claim 11
is similar enough to his claim 3 to be considered raised before the state court, the Circuit of the
City of Suffolk, Virginia denied Ivey's claim 3 on the merits and the Supreme Court of Virginia,
dismissed the appeal on procedural grounds. As such, and again assuming that claim 11 is
similar enough to claim 3 to be considered raised before the Supreme Court, for the reasons
discussed above in Part II, this claim is barred from federal review because claim 3 was
procedurally defaulted.
5
independent state-law grounds for decision. See Clagett 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.
B. Ivey's Response
In Ivey's response to respondent's Motion to Dismiss, he argues that the "circuit court
along with Supreme Court and Respondent have overlooked claim #11 in state proceedings."
Pet'r's Br. in Resp. Resp't's Mot. Dismiss [hereinafter Pet'r's Resp.] 2; docket no. 24. Ivey then
directs the court to his state habeas petition "continuance to 14-A page 2 of 2 along with
attachment #1 Response to Motion to Dismiss- (enclosed)." Id. He also argues that respondent
never states how or why his claims are defaulted "nor does Respondent allow Petitioner the
opportunity to correct these claims if they were to be defaulted." Pet'r's Resp. 2. Ivey also
submitted a typed response arguing the merits of the instant petition. Docket no. 24.
A federal court may not review a procedurally barred claim absent a showing of cause
and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris. 489 U.S.
at 260. 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. 845 F.2d at 1241-42. Importantly, a
court need not consider the issue of prejudice in the absence of cause. Kornahrens v. Evatt. 66
F.3d 1350, 1359 (4th Cir. 1995), cert, denied. 517 U.S. 1171 (1996).
In this case, Ivey's arguments do not establish cause and prejudice or a fundamental
miscarriage of justice. Claim 11 was not included in his stateproceeding and the "attachment
#1" to which he directs the Courtwas not attached. Evenassuming withoutdeciding that his
claim 11 was properly raised in his state habeas proceeding but overlooked by the circuitcourt,
the Circuit Court of the City of Suffolk, Virginia rejected Ivey's claims on the merits and the
Supreme Courtof Virginia dismissed Ivey's appeal because the appeal was not perfected as
required by Rule 5:17(c)(l)(iii), as discussed above. As such, even if Ivey did raisethis claim in
the state habeas action it would have still been defaulted because his appeal was not perfected as
required by Rule 5:17(c)(l)(iii).
Furthermore, Ivey's arguments that respondent never stated howor why his claims were
defaulted arewithout merit. Respondent provided this information in his briefsupporting his
motion to dismiss. Br. Supp. Mot. Dismiss 4-5. Thus, Ivey was placed on notice of the default,
andhe has failed to make a showing of cause andprejudice in his reply sufficient to excuse his
procedural default.
III. Conclusion
For the foregoing reasons, respondent's Motion to Dismiss mustbe granted and this
petition mustbe dismissed as procedurally defaulted. An appropriate Order shallissue.
Entered this
7^ dayof ^
>
day of
«/ 'a
2014.
/s/
Gerald Bruce Lee
Alexandria, Virginia
United States District Judge
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