Crawford v. Pearson

Filing 49

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 08/30/2017. (dvanm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BRANDON MICHAEL CRAWFORD,
Petitioner,
v.
EDDIE L. PEARSON,
Warden, Greensville Correctional Center,
Respondent.

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Case No. 1:13-cv-773

MEMORANDUM OPINION
At issue in this § 2254 habeas petition is whether petitioner, Brandon Michael Crawford,
sentenced to life without parole for a capital murder he committed when he was seventeen, is
entitled to an issuance of a writ where, as here, the state sentencing court did not consider his
youth at the time it imposed the sentence, in violation of Miller v. Alabama, 132 S. Ct. 2455
(2012). Respondent does not contest that youth was not taken into account by the sentencing
court, but argues that Crawford has not exhausted his state remedies.
For the reasons that follow, Crawford has no remedies remaining to be exhausted and
because Miller is retroactive and applicable here, a writ must issue entitling Crawford to be
resentenced so that his youth can be taken into account.
I.
Petitioner, Brandon Michael Crawford, challenges two life sentences imposed by the
Prince William County Circuit Court on March 15, 2007 for the murder of Paul Domeszek. The
record reflects that, on the morning of September 11, 2001, Crawford broke into Domeszek’s
apartment through a sliding glass door, finding Domaszek, who suffered from back problems,
asleep on the floor of the apartment. While Domaszek was sleeping, Crawford murdered
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Domaszek, stabbing him repeatedly and slitting his throat. Crawford did not have a previous
relationship with Domeszek and the two did not know each other prior to the commission of the
crime.
At the time his involvement in the Domaszek murder was discovered, Crawford was
already serving a life sentence for the murder of Walter Otis on November 13, 2001. Crawford
was charged with two counts of capital murder for the murder of Domaszek, one because the
Otis and Domaszek murders were committed within three years of one another, and the second
because the murder was committed during the commission of a robbery. Va. Code § 18.2-31.
He was also charged with burglary. Va. Code § 18.2-91.
Following trial, the jury returned guilty verdicts on all three counts. 1 The trial judge
excused the jury from sentencing because “[t]here is no discretion in sentencing for capital
murder.” Tr. 11/29/2006 at 24. The court said, and counsel agreed, that “[i]t would be a useless
act to have them go in there and vote for something they have no discretion on.” Tr. 11/29/2006
at 24.
A sentencing hearing lasting 20 minutes was held on March 15, 2007. With respect to
the burglary, defense counsel told the judge “You have some discretion. Not a great deal.” But
with respect to the capital murder offense, defense counsel said “As you sentence Brandon
Crawford to life in prison, as you must, I ask you to do so in a way that will try to give the
Domaszeks some measure of peace, some measure of justice.” Tr. 3/17/2006 at 12. The
sentencing hearing focused almost exclusively on Crawford’s mental health, with no reference
made to Crawford’s age. At sentencing, Crawford elected not to allocute and the court made no

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Crawford only challenges his sentences of life without parole for the two capital murder offenses. He does not
challenge his 20 year burglary sentence, nor does he challenge his murder conviction in the Otis case.

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findings with respect to youth when it imposed its sentences of life without the possibility of
parole.
Crawford was sentenced in March 2007, prior to the Supreme Court’s issuance of Miller
v. Alabama, which held that imposing mandatory life imprisonment without the possibility of
parole for juvenile offenders violates the Eighth Amendment. 132 S. Ct. at 465. Seizing on the
holding in Miller, Crawford filed a petition for habeas relief. Respondent filed a motion to
dismiss, which was granted on the ground that Miller had not yet been held by the Supreme
Court to be retroactively applicable to cases on appeal. See Crawford v. Pearson, 1:13cv773
(E.D. Va. Mar. 9, 2015) (Order). The motion to dismiss was also based on binding Fourth
Circuit precedent in effect at the time. See Johnson v. Ponton, 780 f.3d 219 (4th Cir. 2015)
(holding that the rule in Miller was not retroactively applicable to cases on collateral review)
Crawford appealed the District Court’s dismissal of his habeas petition to the Court of
Appeals for the Fourth Circuit and, while that appeal was pending, the Supreme Court issued its
decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), holding that “Miller announced a
new substantive rule that is retroactive in cases on collateral review. Id. at 732. In response to
Montgomery, the Fourth Circuit vacated the dismissal of Crawford’s § 2254 petition and
“remand[ed] for further proceedings in light of Montgomery.” Crawford v. Pearson, No. 15-6498
(4th Cir. June 16, 2016).
Respondent correctly concedes that Crawford’s sentence violates Miller and that he is
entitled to some form of relief. 2 The only remaining issue is whether Crawford has exhausted
his state remedies.

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Both Miller and Montgomery require that “a sentencer [] consider a juvenile offender's youth and attendant
characteristics before determining that life without parole is a proportionate sentence.” Montgomery, 136 S. Ct. at
734. As such, “[a] hearing where ‘youth and its attendant characteristics’ are considered as sententing factors is
necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” Id. at

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II.
Federal habeas relief cannot be granted “unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). An
applicant has not “exhausted the remedies available in the courts of the State . . . if he has the
right under the law of the State to raise, by any available procedure, the question presented.” 28
U.S.C. § 2254(c).
Respondent argues that Crawford has two unexhausted state remedies. First, he argues
that Crawford could seek a motion to vacate his sentence as void ab initio in the state court in
which his sentences were issued. Second, he argues that petitioner could seek state habeas relief
despite the running of the statute of limitations under one of Virginia’s tolling doctrines. Both
arguments fail.
The Supreme Court of Virginia in Jones v. Commonwealth, 293 Va. 29 (Va. 2017),
closed the motion to vacate avenue for relief by holding that a Miller violation does not render a
sentence void ab initio under Virginia law. Accordingly, in the words of the Supreme Court of
Virginia
“[i]n Virginia, a Miller violation can be addressed on direct review or in a habeas
proceeding. Because the violation, if proven, does not render the sentence void ab
initio but merely voidable, it cannot be addressed by a motion to vacate filed
years after the sentence became final.”
Id. at 54. In sum, contrary to respondent’s argument, Crawford cannot use a state court motion
to vacate to remedy his Miller violation.
The second state remedy – a state habeas corpus petition – is similarly unavailable.
Crawford has not filed a state habeas petition presenting his claim because it would be untimely
735. The state court did not consider youth when it imposed life without parole on Crawford, because it believed
“[t]here is no discretion in sentencing for capital murder.” Tr. 11/29/2006 at 24. The record further establishes that
the trial court did not find that Crawford was “incorrigible” or posed such a threat that a sentence of life without
parole was justified.

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under Virginia’s applicable statute of limitations. Virginia law requires a state habeas petition in
non-death cases to be filed “within two years from the date of final judgment in the trial court or
within one year from either final disposition of the direct appeal in state court or the time for
filing such appeal has expired, whichever is later.” Va. Code § 8.01-654(A)(2). Crawford was
sentenced on March 15, 2007 and his petition for appeal to the Supreme Court of Virginia was
refused on July 31, 2009. Thus, the statute of limitations on Crawford’s state habeas rights
expired on July 31, 2010, two years before the Supreme Court decided Miller and provided
Crawford a means of challenging his sentences.
Respondent cites two cases for the proposition that Crawford can argue that the state
statute of limitations for his habeas petition was tolled. Neither is persuasive. The first case,
Hicks v. Dir., Dep’t of Corrections, 768 S.E.2d 415, 418 (Va. 2015), held that Va. Code § 8.01229(D) 3 tolled the statute of limitations for a petitioner’s state habeas petition where it was
alleged that the government withheld exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963). Section 8.01-229(D) is a general civil tolling provision that tolls the statute
of limitations in cases where a defendant has obstructed a plaintiff’s filing. There is no
allegation or evidence in this case that the Commonwealth prevented Crawford from filing his
petition in a timely manner. As such, the Virginia general civil tolling statute does not operate
here to grant Crawford an opportunity to have his state habeas petition heard as the statute did
for the petitioner in Hicks.
The second case cited by respondent – Haas v. Lee, 560 S.E.2d 256, 275 (Va. 2002) – is
also unavailing to respondent. Haas held that a habeas petition was untimely even though it was

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Virginia Code § 8.01-229(D) provides in relevant part that the statute of limitations will be tolled “[w]hen the
filing of an action is obstructed by a defendant's . . . (ii) using any other direct or indirect means to obstruct the filing
of an action, then the time that such obstruction has continued shall not be counted as any part of the period within
which the action must be brought.

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arguably timely as there was no statute of limitations at the time the petitioner had committed his
crime. Prior to 1994, Virginia had no statute of limitations for the filing of a state habeas
petition. Once Virginia enacted a statute of limitations for habeas relief in 1994, the General
Assembly specified that the effective date of the statute was set for July 1, 1998. Haas filed his
petition within two years of that date, but more than two years after his conviction. The Supreme
Court of Virginia held that for petitioners in Haas’s position, the statute of limitations under the
new statute was one-year from the effective date because that was a “reasonable time” in which
to file a petition. Id. at 277. Thus, Haas addressed an atypical situation, far removed from the
situation in which Crawford now finds himself. Crawford’s opportunity to submit a petition
came long after the applicable limitations period was established. Respondent argues that this
case shows it is possible that the state statute of limitations could be “tolled” under special
circumstances, but respondent fails to explain why tolling would be warranted here. In short,
Haas is inapposite.
In sum, although Crawford has not presented his Miller claim in state court, he is excused
from doing so because his available state remedies have been exhausted or are unavailable
pursuant to the requirements of 28 U.S.C. § 2254(b)(1)(A)-(B). There is no available state
corrective procedure which Crawford can invoke to raise his Miller claim. The Supreme Court
of Virginia’s decision in Jones v. Commonwealth, precludes Crawford from moving to vacate his
sentence as void ab initio, and a state habeas remedy is unavailable to Crawford because the state
statute of limitations has expired and there is no applicable tolling exception. As such, Crawford
is entitled to federal habeas relief.
Accordingly, Crawford’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
must be granted and his March 15, 2007 life sentences without the possibility of parole imposed

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