Edwards v. Holloway

Filing 16

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 5/14/14. (see order for details). Copy mailed to pro se(gwalk, )

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

Michael Derrick Edwards,
Petitioner,

V.

Warden G. HoUoway,
Respondent.

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l:13cvl394(LMB/JFA)

MEMORANDUM OPINION

Michael Derrick Edwards, 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 first degree murder and other offenses in the Circuit Court for the City of

Portsmouth. On March 28,2014, respondent filed a Rule 5 Answer and Motion to Dismiss with
a supporting brief and exhibits, and provided petitioner with the notice required by Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. After receiving an extension of time,

petitioner filed a reply on April 25,2014. Accordingly, the matter is now ripe for disposition.
After careful consideration, respondent's Motion to Dismiss will be granted, and the petition will
be dismissed with prejudice.
L Background

Following a jury trial, petitioner was convicted of first degree murder, attempted robbery,

malicious wounding, and three related firearms offenses. Pursuant to the jury's recommendation,
he received a sentence of 73 years incarceration on April 26,2010. Case. Nos. CR09R01171-01
through -06.

1

Petitioner took a direct appeal of his convictions, raising the following claims:
1.

The evidence was insufficient because the testimony
of the two eyewitnesses was inconsistent and not
credible,

2.

The trial court erred in failing to determine whether
certain members of the jury engaged in misconduct.

The petition for appeal was denied on December 29,2010. Edwards v. Commonwealth.

R. No. 0886-10-1 (Va. Ct. App. Dec. 29,2010); Resp. Ex. 2. A three-judge panel also denied
the petition on April 19, 2011. On August 2,2011, the Supreme Court of Virginia declined

further review. Edwards v. Commonwealth. R. No. 110868 (Va. Aug. 2,2011).
On February 17, 2012, Edwards filed a petition for a state writ ofhabeas corpus in the

trial court, making the following claims:
1.

His right to confront witnesses was violated when the
trial court did not allow defense counsel to impeach
Commonwealth's witness Sharlene Harrell regarding
a pending charge.

2.

He received ineffective assistance ofcounsel when his

attorney did not question Harrell about the pending
charge.

3.

His right to trial before an impartial jury was violated
because two jurors were heard discussing the case
outside the courtroom.

4.

His right to trial before an impartial jury was violated
when the court failed adequately to investigate
possible juror misconduct.

The trial court denied and dismissed the habeas petition on April 30,2012. Edwards v. Warden.

Sussex I. Case No. 12-473. Although petitioner noticed an appeal of that result to the Supreme

Courtof Virginia, he failed to file a petition for appeal. Therefore, when the time within which

to do so expired, the record of the case was returned to the trial court without adjudication on
October 31, 2012. Resp. Ex. 1.

On August 29,2012, petitioner filed a petition for a writ of habeas corpus in the Court of

Appeals of Virginia, reiterating the same claims he raised in the circuit court habeas proceeding.
By Order dated October 3,2012, the Court dismissed the petition without prejudice, on the
holding that "[a]bsent exceptional circumstances, this Court will not consider an original petition

for writ of habeas corpus when an adequate remedy may be obtained in the circuit courts under
Code § 8.01-654.... Finding no exceptional circumstances in this case justifying exercise of our

original jurisdiction, we dismiss the petition without prejudice to the right of petitioner to file a
petition for relief in the appropriate circuit court.'' Edwards v. Warden. Sussex I. R. No. 152112-1 (Va. Ct. App. Oct. 3,2012), citation omitted. Petitioner appealed that ruling to the Supreme
Court of Virginia, and the appeal was refused on October 2,2013. Edwards v. Commonwealth.
R. No. 122216 (Va. Oct. 2,2013).

Meanwhile, on February 7,2013, petitioner filed a writ of habeas corpus in the Supreme
Court of Virginia, again arguing the same claims he raised in his circuit and appellate court
habeas applications. By Order dated June 25,2013, the court dismissed the petition pursuant to

Va. Code § 8.01-654(A)(2) on the ground that it was not timely filed. Edwards v. Warden.
Wallens Ridge. R. No. 130251 (Va. June 25, 2013).

Petitioner filed the instant application for § 2254 reliefon or about October 28,2013,'
'For federal purposes, a pleading submittedby an incarcerated litigant generallyis deemed filed
when the pleading is delivered to prison officials for mailing. Lewis v. Citv of Richmond Police
Dep't. 947 F.2d 733 (4th Cir. 1991): see also Houston v. Lack. 487 U.S. 266 (1988). In this case,
Edwards executed the petition on October 28,2013, and in the absenceof evidence to the contrary
it is assumed that he delivered it to prison authorities for mailing on that same sate. Pet. at 15.

making the same arguments he raised in his state habeas appHcations. As noted above,

respondent filed a Rule 5 Answer and a Motion to Dismiss, along with a supporting brief and

exhibits, and petitioner has filed a reply with additional exhibits. Accordingly, the matter is now

ripe for disposition.^
II. Exhaustion and Procedural Bar

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 Virginia must first have presented the 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.g.. Duncan v. Henrv. 513 U.S. 364 (1995). In addition, in order to preserve the
right to federal collateral review, a petitioner must have fairly presented to the state courts a
claim that his federal rights were violated. Id- at 365. Here, claims 1 (violation of petitioner's

right to confrontation) and 2 (ineffective assistance for failure to impeach a prosecution witness

^Respondent argues that the instant petition is barred bytheone-year statuteof limitations set out
at 28 U.S.C. § 2244(d) in part because the habeas corpus application filed in the Court of Appeals
ofVirginiawas fileduntimelyanddid not toll the limitationsperiodas a result. SeeArtuz v. Bennett.
531 U.S. 4, 8 (2000) (holding that only "properly filed" state court actions toll the limitations
period). Resp. Briefat 4. However, as discussed above, the Court of Appeals did not dismiss the
petition on thatbasis, anddetermined instead onlythat"no exceptional circumstances" justified its
exercise of its original jurisdiction. Under these circumstances, where the alleged untimeliness of
this petition is not clear in the record, the Court declines to dismiss this action on thatbasis.

about a pending charge) have never been properly presented to the Supreme Court of Virginia
and so remain unexhausted. The trial court denied relief on both claims in Edwards' first habeas

corpus action, but he subsequently failed to perfect his appeal of that decision to the Supreme

Court of Virginia. Edwards reasserted the claims in his habeas corpus petition to the Court of
Appeals of Virginia, but it found no circumstances which would justify its exercise of its original

jurisdiction. Thus, the merits of the claims were not before the Supreme Court of Virginia when

it refused his subsequent appeal. And when Edwards again made the claims in his habeas corpus
petition filed directly in the Virginia Supreme Court, the petition was dismissed as untimely. As
it is clear claims 1 and 2 of this petition have received no scrutiny by the Supreme Court of

Virginia and are now procedurally barredunderVirginia law,^ theyare simultaneously exhausted
and defaulted for purposes of federal habeas review. See Bassette v. Thompson. 915 F.2d 932
(4th Cir. 1990).

Federal courts may not review procedurally barred claims absent a showing of cause and
prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris v. Reed. 489
U.S. 255,260 (1989). 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. S^ Coleman. 501 U.S. at 753-54;
Clozza V. Murrav. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton v. Muncv. 845 F.2d 1238,1241-

42 (4th Cir. 1988). Importantly, a courtneednot consider the issueof prejudice in the absence of

^Petitioner's ability now to present his unexhausted claims 1 and 2 to the Supreme Court of
Virginia is foreclosed bothbyVa. Code § 8.01-654(B)(2), which precludes thefiling of successive
habeas petitions where theunderlying facts were known at thetime thefirst such application was
filed, andby§8.01 -654(A)(2), which provides astatute oflimitations forhabeas corpus applications.

cause. See Komahrens v. Evatt. 66 F.3d 1350,1359 (4th Cir. 19951. cert, denied. 517 U.S. 1171
(1996).

In his response to the Motion to Dismiss, petitioner states that the procedural default of
his first two habeas claims was attributable to ineffective assistance of counsel, because

petitioner "repeatedly" asked counsel to include them on direct appeal but counsel "negligently"
failed to do so. Pet. Resp. at 4. However, examination of the record belies this contention. In

the two defaulted claims, petitioner contends that his right to confront witnesses was violated

when the trial court did not allow impeachment of Commonwealth's witness Sharlene Harrell
regarding a pending charge, and that he received ineffective assistance when his counsel failed to

do so."* Among the exhibits petitioner supplied with the initial petition is a response to a
discovery request by a Deputy Commonwealth's Attorney stating in relevant part that Harrell, a
potential witness for the Commonwealth, had pending charges in the Portsmouth Circuit Court
but was not receiving any consideration from the Commonwealth in exchange for her testimony
in petitioner's case. Petitioner has also provided a copy of a letter from his counsel dated June
14,2011, in which counsel stated: "With regard to Sharlene Harrell - that was a moot point

because if I delved into her criminal past, the judge would have allowed the 911 tape to be

played. I made a tactical decision to forego the inquiry to prevent the tapes being played for the

jury. Therefore, no argument is possible with regard to that issue." Dkt. 1, Letter of Stephen B.
Plott.

'*The Court ofAppeals explained:"Sharlene Harrell lived near the scene, and she heard gunshots.
Harrell testified that about five minutes later, she saw appellant asking bystanders for a ride because
he hadjust shot someone, but no one would givehim a ride and appellant ran. Harrell testified she

knewappellant and she sawthat appellant had a firearm." Edwards v. Comm.. supra, slip op. at 2.

It is well established in federal jurisprudence that a lawyer's '"strategic choices made
after thorough investigation ... are virtually unchallengeable.'" Grav v. Branker. 529 F.3d 220,
229 (4th Cir.), cert, denied. 129 S. Ct. 1579 (2009), quoting Strickland v. Washington. 466 U.S.
668,690-91 (1984). In particular, federal law recognizes that the choice of what issues to raise on

appeal is a strategic decision that generally will not support a claim of ineffective assistance.
Jones v. Barnes. 463 U.S. 745,751 -52 (1983). Here, petitioner's own exhibits make it plain

that counsel made a sound strategic choice not to impeach Harrell at trial regarding her pending
charges and then not to challenge her testimony on direct appeal. Petitioner's reliance on what
he mischaracterizes as counsel's ineffective assistance to show cause for the procedural default
of his first two claims thus is unavailing, and those claims are defaulted from federal
consideration on the merits.

III. Merits 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

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

that reached by [the United States Supreme] Court on a question of law or if the state court

decides a case differentlythan [the United 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 fi-om [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 fi-ee-standing claims
themselves." McLee v. Angelone» 967 F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
IV. Analysis

In his third claim, petitioner argues that his right to trial by an impartial jury was violated

when two jurors were heard commenting on the case outside the courtroom. In claim 4, which is
closely related, petitioner contends that his right to an impartial jury was violated when the court
failed adequately to investigate possible juror misconduct. When petitioner raised these same
points on direct appeal, the Court of Appeals found them to have no merit, as follows:
During the first day of trial, Mary McCurdy, a forensic technician,
testified as to the chain of custody of a bullet recovered fi-om [the
victim] during an autopsy. During cross-examination, appellant
asked her about a firearm, and McCurdy testified the Detective Luck
gave one to her and she gave it to another individual for examination.
Sterling Weaver testified while he was walking towards the entrance
ofthe courthouse on the second day ofappellant's trial, he overheard
a conversation oftwo men. Weaver heard one ofthe men state, 'They
have introduced a gun.' Weaver testified the other man replied, 'But
they haven't connected it to anyone.' Weaver testified the first man
stated, 'But they have to connect it to someone.' Weaver saw the
men enter the courthouse and noticed that one of them had a book.

Weaver testified jurors fi-equently carried books. Weaver went to the
courtroom and asked the prosecutor if the two men had entered the
jury room, and the prosecutor said that they had. Weaver never
identified the two men he overheard. The trial judge overruled

appellant's motion for a mistrial, but stated that he would make
inquiries of the jury when he could do so unobtrusively.
At the conclusion ofthe evidence, the judge asked the prosecutor and
defense counsel if they knew which jurors had the supposed
conversation. The prosecutor stated that he only knew that they were
two white males. The trial judge stated that there were several white
males on the jury and he could ask them. The trial judge then
reviewed the jury instructions with the parties. Later, appellant asked
the trial judge to voir dire the panel to determine if the two men had
formed an opinion and shared their opinions during the conversation.
The trial judge stated he was not concerned with the substance ofthe
conversation because they did not talk about appellant's guilt, that no
one could identify the two men, that he thought it would do more
harm to question the entire panel, and that there was a jury instruction
stating appellant was not required to produce evidence. The trial
judge stated that if someone could identify the two men, he would
question them.
*

*

4:

No one could identify the men, and the trial judge believed that to
question the entire jury panel would be more damaging to appellant.
Assuming without deciding that the conversation Weaver overheard
was between two men on appellant's jury, the men never expressed
any animus toward appellant or toward criminal defendants in
general. Furthermore, neither man stated that he believed appellant
was guilty or innocent, and the conversation did not improperly place
on appellant a burden of producing evidence. Based upon a review
of the record, the trial judge did no abuse his discretion in failing to
conduct a voir dire ofthe panel and in denying appellant's motion for
a mistrial due to juror misconduct.

Edwards v. Warden. Sussex I. supra, slip op. at 3-5. Because the foregoing 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).

The right to a fair trial, as guaranteed by the Sixth and Fourteenth Amendments, requires

that a defendant's guilt or innocence must be determined solely on the basis of the evidence

adduced at trial, rather than "on grounds of official suspicion, indictment, [or] continued
custody." Taylor v. Kentucky. 436 U.S. 478,485 (1978). Rather, "[t]o guarantee a defendant's
due process rights under ordinary circumstances, our legal system has instead placed primary
reliance on the adversary system and the presumption of innocence." Holbrook y. Flynn. 475
U.S. 560, 567 (1986). Thus, "[w]hen defense counsel vigorously represents his client's interests

and the trial judge assiduously works to impress jurors with the need to presume the defendant's
innocence," the Supreme Court has "trusted that a fair result can be obtained." Id. at 567-68.

Here, as the Virginia Court of Appeals held, there was no definitive record indication that
any jury misconduct occurred. No one could identify the two men whose conversation was
overheard by the witness, and there was no certainty that they actually were members of

petitioner's jury. But, as the appellate court reasoned, even assuming without deciding that they
were jurors, the conversation the witness described included no expression by either man of any

animus toward petitioner, neither stated a belief that petitioner was guilty or innocent, and their

conversation did not improperly place on the defense a burden of producing evidence. Under
those circumstances, the trial court in its discretion opted not to question the entire jury panel

regarding theincident, believing thatto do so could be more damaging to petitioner.^ Inaddition,

^Specifically, the courtstatedto defense counsel: "I amnot concerned aboutthe substance of the
conversation. It is a little snippetthat reallyis nothingmore than a commentabout they're going to
haveto do certain things. I can't come to the conclusion in anywaythat theyweresuggesting that
the defense had to do anything. You couldjust as easily cometo the conclusion fi*om the comment
... that the Commonwealth had to do it. So, without knowing who the individuals are, I have done

as much as I am going to do with this. Because I am afi-aid I might verywell create an untenable
situation bybringing theother jurors out. Ifyou can tell mewho they are, then I'll behappy to talk
to them, but otherwise I am not going to assume anything." T. 1/27/10 at 289.
10

the court noted that the jury was instructed that the defense had no burden to produce evidence,
and it is apodictic that jurors are presumed to follow the jury instructions that they are given.
Richardson v. Marsh. 481 U.S. 200, 206 (1987). Under these circumstances, the Court of

Appeals' rejection of petitioner's claims that his right to a fair trial was compromised when the

court declined to voir dire the jury and denied a defense motion for a mistrial based on juror
misconduct was neither an unreasonable determination of the facts nor an unreasonable

application of federal law, so the same result must pertain here. Williams. 529 U.S. at 412-13.
V. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss this petition for habeas corpus

relief will be granted, and the petition will be dismissed with prejudice. An appropriate Order
shall issue.

Entered this 77 ^

dav of
day

/hg^

2014.

Alexandria, Virginia

Leonie M. BrinJc^a
United States District Judge

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