Carter v. Shannon

Filing 29

MEMORANDUM OPINION. Signed by District Judge Claude M. Hilton on 02/16/16. (copy mailed)(kgra, )

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

Alvin L. Carter,
Petitioner,

I:14cv382 (CMHMSN)

V.

Harold Clarke,
Respondent.
MEMORANDUM OPINION

Alvin L. Carter, 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 multiple offenses in the Circuit Court of the City ofNorfolk. Petitioner has paid the
applicable filing fee. By an Order dated April 24,2015, the petition was filed, and respondent
was directed to show cause within thirty (30) days why the petition should not be granted. (Dkt.

No. 18) On May 26,2015, respondent filed a Rule 5 Answer and a Motion to Dismiss,

accompanied by a supporting briefand exhibits. Petitioner was provided with the notice required
by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975)and Local Rule 7(K), and petitioner has

filed no reply. After careful consideration, respondent's Motion to Dismiss will be granted, and
the petition will be dismissed, with prejudice.
I. Background

On September 1,2011, following a bench trial, petitioner was convicted of abduction
withthe intentto defile, rape, forcible sodomy, and assault and battery. Petitioner received a

total sentence of 51 years incarceration with 25years suspended. Case No. CRO10002700-00-01
through -03.

Petitioner appealed the convictions, arguing that the trial court erred in denying his
motion to hire an investigator and that the evidence was insufficient to sustain the convictions.

The Court of Appeals denied the petition for appeal on February 15,2012. Carter v.
Commonwealth. R. No. 1626-11-1 (Va. Ct. App. Feb. 15,2012); Resp. Ex. B. Petitioner sought
further review of that determination, but the Supreme Court of Virginia refused the petition for
appeal on July 6,2012. Carter v. Commonwealth. R. No. 120395 (Va. July 6,2012); Resp. Ex.
C.*

On April 25,2013, petitioner filed a petition for a writ of habeas corpus in the Supreme

Court of Virginia. In return, the Court addressed a letter to petitioner explaining that if petitioner
intended to appeal the denial of his habeas application by the trial court, he had missed the

deadline to do so. Resp. Ex. E. On August 5,2013, the Court dismissed the petition as an
original jurisdiction habeas action as successive pursuant to Va. Code § 8.01-654(B)(2), because

petitioner had filed the earlier habeas action in the trial court. Carter v. Dir.. Dep't of Corr.. R.
No. 130741 (Aug. 5,2013); Resp. Ex. E. Petitioner's motion for rehearing was denied on
November 7,2013. Resp. Ex. F.

Petitioner then turned to the federal forum and filed the instant application for relief

pursuantto § 2254, reiterating the two claimshe made on direct appeal and the compound claim

of ineffective assistance he raised in his state habeas proceedings.^ As noted above, respondent

'In the meantime, petitioner filed a petition for a state writ ofhabeas corpus in the trial court on

April 3,2012,raising numerous claims ofineffective assistance ofcounsel. The petition was denied
and dismissed on the merits in an Order dated May 29,2012. Resp. Ex. D.

^For federal purposes, a pleading submitted byanincarcerated litigant is deemed filed when it is
delivered toprison officials for mailing. Lewis v.Citv ofRichmond Police Dep't. 947 F.2d 733 (4th
Cir. 1991); see also Houston v. Lack. 487 U.S. 266 (1988). Here, petitioner indicates that the

has moved to dismiss the petition, arguing both that the petition was filed untimely and that the
claims lack merit. The court finds the second argument dispositive, and the petition thus will be
dismissed, with prejudice.
II. The Petition is Timely

A § 2254 petition for a writ of habeas corpus must be dismissed if filed later than one

year after (1) the judgment becomes final; (2) any state-created impediment to filing a petition is
removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4)
the factual predicate ofthe claim could have been discovered with due diligence. 28 U.S.C. §
2244(d)(l)(AHD).

Here, petitioner's conviction became final on October 4,2012, ninety days after the
Supreme Court of Virginia refiised his petition on direct appeal, when the time expired during
which he could have sought a writ of certiorari from the United States Supreme Court. See U.S.

Sup. Ct. R. 13(1) (petitions for review are timely filed within 90 days of the entry ofjudgment by
a state court of last resort); ^

also Lawrence v. Florida. 549 U.S. 327, 333 (2007). Thus, the

§2254(d) one-year limitations period began to run on that date.

hi calculating the one-year limitations period, the Court must exclude the time during

which properly-filed state collateralproceedings pursued by petitioner were pending. S^ 28

U.S.C. § 2244(d)(2); Pace v. DiGuelielmo. 544 U.S. 408 (2005) (determinmg that the definition
of "properly filed" statecollateral proceedings, as required by § 2244(d)(2), is based on the
applicable state law as interpreted by statecourts); Artuzv. Bennett. 531 U.S. 4, 8 (2000)

petition was notarized onFebruary 20,2014, Pet. at 12, although itwas notdate-stamped asreceived
by the Clerk until April 1,2014. Pet. at 1.

(holding that a state collateral proceeding is not "properly filed" for purposes oftolling the
federal limitations period if it is filed untimely under state law). In this case, petitioner's first
state habeas application has no effect on calculating the limitations period, because it was filed
on April 3,2012 and denied on May 29,2012. Resp. Ex. D. No timely appeal was taken of that

result. Thus, the first habeas proceedingconcluded severalmonths before the limitations clock
began to run on October 4,2012, the date the convictions at issue became final, and it has no

bearing on the timeliness \el non of this federal petition.

Wade v. Robinson. 327 F.3d 328,

333 n. 4 (4th Cir.), cert, denied. 540 U.S. 912 (2003) (federal courts look to the date on which a
state conviction is affirmed on direct review, rather than to the date a state court denies collateral

relief, as the date on which the custodyjudgment becomes final for purposes of computing the
limitations period).

From October 4,2012, the date the convictions became final, the limitations clock ran

unchecked for 202 days until April 25,2013, whenpetitioner filed his petitionfor a writ of

habeas corpus in the Supreme Court of Virginia. Thepetition was dismissed as successive on

August 5,2013, andpetitioner's motion for rehearing of that result was denied on November 7,
2013.^ The limitations clock then ran again from that date until February 20,2014, the date the

petitioner notarized thepetition and presumptively placed it in the prison mailing system, a

period of 104 days. When those periods are combined this federal petition was filed 306 days
afterthe convictions became fmal, and the petition is timely. Evenif it couldbe shownthat the

^The fact that the petition was dismissed as successive does not render it improperly filed for

purposes ofthe limitations period. See Weeklev v. Moore. 244 F.3d 874 (11th Cir. 2001) (federal
petition that was successive but timely filed under state procedures was "properly filed" as that term
is defined in Artuz).

petition was not placed in the prison mailing system until a later date, it was received by the
Clerk on April 1,2014, and by then only 347 days of imtolled time had elapsed since the date the
convictions were final. Thus, in either case, this petition is timely.
III. The Claims of Ineffective Assistance are Procedurally Barred

Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in
the appropriate state court. 28 U.S.C. § 2254(b); Granberrv v Greer. 481 U.S. 129 (1987); Rose

V. Lundv. 455 U.S. 509 (1982). 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 ofthe State's established appellate review process." O'Sullivan v. BoerckeL
526 U.S. 838, 845 (1999). Thus, a petitioner convicted in Virginia first must have presented the

same factual and legal claims raised in his federal habeas corpus 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).

However, "[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 ifthe petitioner attempted to present it to the state court." Baker v. Corcoran. 220 F.3d 276,

288 (4th Cir. 2000) (citmg Gravv. Netherland. 518 U.S. 152,161 (1996)). Importantly, "the
procedural bar that gives rise to exhaustion provides an independent and adequate state-law

ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted
claim." Id. (quoting Grav. 518 U.S. at 162). Therefore, such a claim is deemed to be

simultaneously exhausted and defaulted for purposes of federal habeas review. S^ Bassette v.
Thompson. 915 F.2d 932 (4th Cir. 1990).

Here, pursuant to these principles, petitioner's first, compound claim of ineffective
assistance of counsel is procedurally barred from federal review. To the extent that the present
allegations of ineffective assistance were raised in the first state habeas action, they were not
exhausted, because petitioner failed to file a timely appeal of their denial by the trial court in the
Supreme Court of Virginia. O'Sullivan. 526 U.S. at 845. When petitioner subsequently

attempted to raise the claims before the Supreme Court of Virginia in his second state collateral
proceeding, the Court expressly found the claims to be barred as successive. This reason has

been held by the Fourth Circuit to be an adequate and independent state law ground preventing
federal habeas review of procedurally defaulted claims. See Mackall v. Anaelone. 131 F.3d 442,

446 (4th Cir. 1997) (determiningprocedural bar of successive habeas applications in Va. Code
§8.01-654(B)(2) to be a well-recognized adequate and independent ground). Therefore,

petitioner's present claims of ineffectiveassistance of counsel are both unexhausted and
procedurally defaulted.

Federal coxirts may not reviewa barredclaim absent a showing of cause and prejudice or
a fimdamental miscarriage ofjustice, such as actual innocence. Harris v. Reed. 489 U.S. 255,

260 (1989). After respondent argued that the meffective assistance are procedurally defaulted,

Resp. Briefat 7-10, petitioner failed to come forward with anyshowing of cause and prejudice

which might excuse that default. Accordingly, petitioner's claims of ineffective assistance are
procedurally barredfrom 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 onthe 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 ofthe 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.

Williams v. Tavlor. 529 U.S. 362,412-13 (2000). A state court

determination runs afoul ofthe "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 differently than [the United States Supreme] Court has on a set of materially

indistinguishable facts." li at 413. Under the "unreasonableapplication" clause, the writ should
be granted if the federal court finds that the state court "identifies the correct governing legal

principle from [the Supreme] Court's decisions but unreasonablyapplies that principle to the

facts of the prisoner's case." Id Importantly, this standardof 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 ratherthan the petitioner's free-standing claims
themselves." McLee v. Aneelone. 967 F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139
F.3d 891 (4th Ck. 1998) (table).
IV. Analysis

In the second apparent claim of thispetition, petitioner contends as he did on direct
appeal that the trial courterred in denying his motionto hire an investigator. S^ Pet. at

unnumbered pp. 9-10. Thisargument states no claim forreliefunder § 2254 because it concerns

only a matter of state law. "A state prisoner is entitled to relief under § 2254 only if he is held'm

custody in violation ofthe Constitution or laws ortreaties ofthe United States.'" Billotti v.
Leeurskv. 975 F.2d 113,119 (4th Cir. 1992) (quoting Enele v. Isaac. 456 U.S. 107,119 (1982)).

Thus, questions of state law that do not implicatefederal rights are not cognizableon federal
habeas review under § 2254. Id. (citing Inge v. Procunier. 758 F.2d 1010,1014 (4th Cir. 1985)).
On direct appeal, the denial of petitioner's motion to hire an investigator was challenged and
adjudicated solely on the basis of Virginia law.

Carter v. Commonwealth. Resp. Ex. B at 1-

2. Where, as here, a petitioner alleges that a state court incorrectly applied state law, the claim
fails to state a basis for federal habeas corpus relief

Lawrence v. Branker. 517 F.3d 700, 717

(4th Cir. 2008); Wright v. Anselone. 151 F.3d 151,159 (4th Cir. 1998). Therefore, the second
claim of this petition must be dismissed.

In the third claim ofthis federal petition, petitioner argues as he did on direct appeal that
the evidence was insufficient to sustain the convictions.

Pet. at unnumbered pp. 10-11; Am.

Pet. at 3 -10. When petitioner made this same argumenton direct appeal, the Court of Appeals
rejected it on the following holding:

Appellant argues that the evidence is insufficient to support his
convictions. Specifically, he asserts the complaining witness'
testimony was inherently incredible.
^

*

[T]he evidenceprovedthat duringthe earlymorninghours on March
17,2010, the victim was alone at a bus stop. She testified appellant

approached her, beat her, dragged her behind a building, and then
rapedandsodomized her.Afterwards, thevictimcontacted thepolice
and was examined at a hospital. The nurse examiner testified that
victim exhibited injuriesto the face and genital area. The injuries to
her genital area were caused by blunt force trauma. She also
explained the victim 'was very emotional, crying, upset, sobbing
[and] tearful." Theaccount of the incident thevictimprovided to the
nurse examiner was consistent with her trial testimony. The victim's

account of the events provided to the police after the incident was

also largely consistent with her trial testimony. DNA samples
collected from the victim were linked to appellant.

Appellant admitted havinghad vaginal intercourse with the victim but
denied it was not consensual. However, when initially interviewed by
8

the police, he denied any involvement in the incident and claimed he
had not encountered anyone at the bus stop.

The trial court believed the Commonwealth's witnesses and rejected
appellant's version of the events. 'The credibility of the witnesses
and the weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as it is
presented.' Sandoval v. Commonwealth. 20 Va. App. 133,138,455
S.E.2d 730,732 (1995). The victim's testimony was corroborated in
part by the testimony ofthe nurse examiner and the police officer as
well as by the forensic evidence. We find no error with the trial
court's credibility determination. The Commonwealth's evidence
was competent, was not inherently incredible, and was sufficient to
prove beyond a re4asonable doubt that appellant was guilty of
abduction, rape, forcible sodomy, and assault and battery.

Carter. R. No. 1626-11-1, Resp, Ex. B at 2-3. Because the foregoing order was the last reasoned
state court decision on the claim at issue, its reasoning is imputed to the Supreme Court of

Virginia, which refused further appeal without explanation.

Ylst v. Nunnemaker. 501 U.S.

797, 803 (1991).

On federal habeas review, the standard for a claim challenging the sufficiency of the

evidence supporting a state conviction is "whether, after viewing the evidence in the light most

favorable to the prosecution, anyrational trier of fact couldhave found the essential elements of

the crimebeyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307, 319 (1979) (emphasis

original). Thefederal court is required to give deference to findings of factmade by the state
courts. 28 U.S.C. § 2254(d); Sumnerv. Mata. 449 U.S. 539, 546-47(1981); see Wilson v.

Greene. 155 F.3d 396,405-06 (4th Cir. 1998). Instead, the federal court must determine only
whether the trier of fact made a rational decision to convict. Herrera v. Collins. 506 U.S. 390,

402 (1993).

Here, forthereasons which are clearly articulated in the quoted opinion, theVirginia

court clearly made a rational decision to convict petitioner. Jackson. 443 U.S. at 319. Therefore,

the Virginia courts' denial of relief on this claim was not contrary to, or an unreasonable
application of, that clearly established federal law, nor was it based on an unreasonable
determination of the facts. Accordingly, that same result must pertain here. Williams. 529 U.S.
at 412-13.
V. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss will be granted, and the
petition will be dismissed, with prejudice. An appropriate Order shall issue.

Entered this

day of

2016.

United States District Judge

Alexandria, Virginia

10