Pye v. Warden
Filing
18
MEMORANDUM OPINION re Motion to Dismiss. Signed by District Judge T. S. Ellis, III on 10/15/14. Copies mailed: yes(klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Jason Jermaine Pye,
Petitioner,
I:14cvll6 (TSE/TCB)
V.
Gregory Holloway,
Respondent.
MEMORANDUM OPINION
Jason Jermaine Pye, a Virginia inmate proceeding ero 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 solicitation of a minor by use of a communications device following a bench trial in the
Circuit Court for the City of Portsmouth. Respondent has filed a Rule 5 Answer and a Motion to
Dismiss with a supporting brief and exhibits, and has provided petitioner the notice required by
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K). Petitioner has filed no
reply. 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
By Order dated September 8,2011, petitioner was found guilty of soliciting a minor by
use of a communications device, in violation of Virginia Code § 18.2-374.3. Case No.
CRl 1000927-01. On December 13,2011, he received a sentence of thirty (30) years
incarceration, with eight years suspended. In its opinion affirming the conviction, the Court of
Appeals of Virginia described the evidence as follows:
[T]he evidence indicated thatinMarch 2011,T.B.,a thirteen-year-old
girl,hadbeentalking toandtextingappellant, a twenty-eight-year-old
man. T.B. and appellant never met, and T.B. originally represented
herself to be seventeen years old, claiming she would turn eighteen
in two weeks.
In a later conversation, however, T.B. informed
appellant that her actual age was thirteen.
In the early morning of April 16, 2011, Crystal Arrington (Ms.
Arrington), T.B.'s thirty-one-year-old sister, heard T.B.'s phone
'buzz' frequently. Ms. Arrington retrieved T.B.'s phone and saw
numerous phone calls and texts from the same number, including a
3:49 a.m. text that read, 'Can I come and get you?' Ms. Arrington
called the number and posed as a child by lowering her voice. Ms.
Arrington spoke with appellant, who identified himself. Ms.
Arrington did not identify herself but asked appellant if he knew of
her age. Appellant answered, 'Yes, thirteen.' Ms. Arrington asked
appellant, 'Are you okay with that?' Appellant responded, 'Yes, I'm
fine. I'm cool as long as you're cool with that.' At one point during
the conversation, Ms. Arrington asked appellant where they were
going, and appellant responded, 'We're going to my roommate's
house to chill and have sex.' Ms. Arrington made plans with appellant
to meet in a Wal-Mart parking lot. Appellant then described his
vehicle as a white Pontiac Grand Am. Ms. Arrington contacted the
police and informed them of the situation.
At the Wal-Mart parking lot, Ms. Arrington approached a white
Pontiac Grand Am and tapped on the window. Appellant exited the
vehicle, said 'hey,' and hugged Ms. Arrington. Appellant was
immediately apprehended by Portsmouth police.
Pve v. Commonwealth. R. No. 2539-11-I (Va. Ct. App. July 31,2012), slip op. at 1-2; Resp. Ex.
2. Pye argued on appeal that the evidence was insufficient to sustain the conviction, but the
appellate court determined that "[w]hen viewing the evidence in the light most favorable to the
Commonwealth, the evidence in the instant matter was sufficient to prove that appellant was
guilty of using a communication system to propose sex to a minor underthe age of fifteen." Id,
slip op. at 4. Petitioner sought further review by the Supreme Court of Virginia, but his petition
was refiised on November 7,2012. Pve v. Commonwealth. R. No. 121374 (Va. June 28,2012);
Resp. Ex. 3.
On July 26,2013, Pye filed a petition for a state writ of habeas corpus, asserting the
following claims:
1.
Illegal search and seizure of a communications device / ineffective
assistance of counsel: the courts failed to provide an administrative
warrant to search the cell phone and to seize the cell phone.
2.
Incompetence at the time of trial / ineffective counsel as a result of
Pye's inability to communicate with trial counsel, inability to follow
along during trial, Pye's use of Haldol and Trilophon during trial;
Pye's inability to 'focus' during trial, and because Pye did not
understand he was not required to testify or understand courtroom
procedures.
3.
Insanity at the time of offense/ ineffective counsel: Pye was off his
medication for a mental health disorder at the time ofthe crime, and
was hearing voices giving him commands at the time of the offense.
By Order dated October 13,2013, Pye's petition was dismissed. Resp. Ex. 4. The court
held that Pye's challenges to the legality of the search and seizure of his cell phone, his
competence to stand trial, and his sanity at the time of the offense were not cognizable in habeas
corpus and were barred by the rule in Slavtonv. Parriean. 215 Va. 27,29,205 S.E.2d 680,682
(1974), cert, denied. 419 U.S. 1108 (1975) (holding that a claim is procedurally defaulted if the
petitioner could have raised it on direct appeal but did not). Id. at 3. Pye's claims of ineffective
assistance of counsel were denied on the ground that they were "conclusory and refuted by the
record of his criminal trial," and because Pye failed to establish that he was prejudiced by
counsel's asserted shortcomings. Id at 4 - 5. Pye took no appeal of that result.
On or about March 4,2014, petitioner timely filed this federal action, reiterating the same
claims he made in his state habeas corpus proceeding. As noted above, respondent has moved to
dismiss the petition, and petitioner has filed no reply. Accordingly, this matter is now ripe for
disposition. For the reasons which follow, respondent's Motion to Dismiss must be granted, and
3
the petition must be dismissed, with prejudice.
11. Exhaustion and Procedural Default
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); Cranberryv 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 legalclaimsraised 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); Kasi v. Angelone. 300 F.3d 487, 50102 (4th Cir. 2002). Here, since Pye took no appeal to the Supreme Court of Virginia after the
trial court denied relief on his current claims, the claims remain unexhausted.
However, "[a] claim that has not been presented to the highest statecourt nevertheless
may be treated as exhausted if it is clear that the claim wouldbe procedurally barred understate
law if the petitionerattempted to present it to the statecourt." Bakerv. Corcoran. 220 F.3d 276,
288 (4th Cir. 2000) (citing Gray v. Netherland. 518 U.S. 152,161 (1996)). Importantly, "the
procedural bar thatgives riseto exhaustion provides an independent and adequate state-law
ground forthe conviction andsentence, andthus prevents federal habeas review of the defaulted
claim." Id (quoting Gray. 518 U.S. at 162). Here, petitioner's unexhausted claims are incapable
of exhaustion, because the thirty-day period during which Pye could have noticed an appeal of
the denial of his statehabeas corpus petition to the Supreme Court of Virginia has long since
passed. Cf Va. Supr. Ct. R. 5:9. Thus, the claims are simultaneously exhausted and defaulted
for purposes of federal habeas review.
Bassette v. Thompson. 915 F.2d 932 (4th Cir. 1990).
Pye's claims regarding the search and seizure of his cell phone, his competence to stand
trial, and his sanity at the time of the offense also are barred for a second reason. When he raised
these claims in his state habeas corpus application, the court held that the claims were not
cognizable in habeas corpus and were barred by the rule in Slavton v. Parrigan. supra. Where a
state court has made an express determination of procedural default, the state court's finding is
entitled to a presumption of correctness, provided two foundational requirements are met. See 28
U.S.C. § 2254(d); Clanton v. Muncv. 845 F.2d 1238,1241 (4th Cir. 1988). First, the state court
must explicitly rely on the procedural ground to deny petitioner relief Sm Ylst v. Nunnemaker.
501 U.S. 797, 802-03 (1991); Harris v. Reed. 489 U.S. 255,259 (1989). Second, the state
procedural rule used to default petitioner's claim must be an independent and adequate state
ground for denying relief See Harris. 489 U.S. at 260; Ford v. Georgia. 498 U.S. 411,423-24
(1991). The Fourth Circuit has held consistently that "the procedural default rule set forth in
Slavton constitutes an adequate and independent state law ground for decision." Mu'Min v.
Pruett. 125 F.3d 192, 196-97 (4th Cir. 1997). Therefore, petitioner's claims challenging the
search and seizure of his cell phone, his competence to stand trial, and his sanity at the time of
the offense also are procedurallydefaulted in this federal proceeding for this second reason.
Federal courts may not review barred claims 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 tums upon a showingof (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 ofthe claim. See Coleman v. Thompson. 501 U.S. 722, 753-54 (1991);
CloTTfl V. Murray. 913 F.2d 1092,1104 (4th Cir. 1990). Importantly, a court need not consider
the issue of prejudice in the absence of cause. See Komahrens v. Evatt. 66 F.3d 1350,1359(4th
Cir. 1995), cert, denied sub, nom Komahrens v. Moore. 517 U.S. 1171 (1996). Here, as noted
above, petitionerhas not replied to respondent's Motion to Dismiss, and has made no showing of
any of these factors. Moreover, it is apparent from the facts recited by the Court ofAppeals
quoted above that any attempt by petitioner to claimactual iimocence would have failed. Cf.
Harris. 489 U.S. at 260. Consequently, the claims raised in this petition are procedurally barred
from consideration on the merits.
III. Conclusion
For the foregoing reasons, respondent's Motion to Dismiss must be granted, and this
petition must be dismissed with prejudice. An appropriate Order shall issue.
Entered this
[5'^ day of _
2014.
Alexandria, Virginia
T. S. Ellis, III
United States Disirict Judge
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