Howell v. Clarke

Filing 15

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 7/9/15. (gwalk, )

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

David Junior Howell,
Petitioner,

l;14cv925 (TSE/JFA)

V.

Harold W. Clarke,
Respondent
MEMORANDUM OPINION

David Junior Howell, 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 validity ofhis convictions in the
Circuit Court for the County of Henrico, Virginia of one count of grand larceny and two counts
of construction fi-aud. Respondent has filed a Motion to Dismiss and Rule 5 Answer, with a

supporting brief and numerous exhibits. Petitioner was given the opportunity to file responsive
materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he filed replies on
January 14 and January 15,2015. For the reasons that follow, petitioner's claims must be
dismissed.

I. Background

On October 1,2009, petitionerpled guilty to one count ofgrand larceny. Commonwealth
V. Howell. Case No. CR09-1040. On December 17,2009, petitioner pled guilty in the same
court to two counts of construction fraud. Commonwealth v. Howell. Case Nos. CR09-3937,

3938. The court conducted a consolidated sentencing hearing and, by final order dated May 24,
2010, sentenced petitioner to twenty years' incarceration with fifteen years suspended on the

grand larcenycharge, and five years' incarceration with four years suspendedon each

construction firaud charge, for a total of seven years' incarceration. Although the instant petition

challenges both convictions, petitioner challenged them separately in state court, and they
therefore have separate procedural histories.
Petitioner did not note a direct appeal ofhis construction fraud conviction. On

September 2,2010, however, he filed a petition for a writ of habeas corpus in the Supreme Court

of Virginia, alleging ineffective assistanceoftrial counsel. The court dismissedthe petition on
its merits on January 13,2011. Howell v. Dir. of the Dep't of Corr.. R. No. 101783. Petitioner

did not file any additional challenges to his construction fraud conviction until he filed a petition

for a writ of habeas corpus in the Circuit Court on March 7,2013, challenging all of his
convictions.

Petitioner noted a direct appeal of his grand larceny conviction on June 1,2010. The sole
groimd petitioner raised in this appeal was that he received ineffective assistance of counsel. By
order dated April 26,2011, the Court ofAppeals of Virginia dismissed the appeal, finding that

claims of ineffective assistance of counsel are not cognizable on direct appeal. Howell v.
Commonwealth. R. No. 1157-10-2. Petitioner then filed a petition for a writ of habeas corpus in
the Supreme Court of Virginia on June 14,2011, alleging in relevant part that (1) appellate
counsel rendered ineffective assistance by denying petitioner the right to pursue a direct appeal;

and (2) appellate counsel renderedineffective assistance by not pursuing an appeal to the

Supreme Court of Virginia. The Supreme Court of Virginia found that petitioner had adequately
alleged that he was denied the right to file a direct appeal. Accordingly, by order dated

December 7,2011, the Supreme Court ofVirginiagranted petitioner the right to file a delayed
appeal. Howell v. Warden of the Deep Meadow Corr. Cntr.. R. No. 11161. The court stated that

its decision was"without prejudice to the petitioner's rightto file a subsequent petition for a writ

of habeas corpus limited to the ground or grounds raised m the present petition." Id. at 1.

Petitioner then filed a notice ofappeal to the Court of Appeals of Virginia on January 23,2012.
By published opinion, the court affirmed petitioner's conviction. Howell v. Commonwealth. 60

Va. App. 737,732 S.E.2d 722 (Va. Ct. App. 2012). The Supreme Court of Virginia refused
petitioner's petition for appeal on March 19,2013. Howell v. Commonwealth. R. No. 121934.

On or about March 7,2013, petitioner filed a petition for a writ of habeas corpus in the

CircuitCourt for the County of Henrico, challenging both his construction fraud and grand
larceny convictions. Petitioner alleged the following grounds for relief:
A.

His guilty pleas to the construction fraud counts were "invalid" due to

ineffective assistance of counsel;

B. His guilty pleas to the construction fraud coimts and his Alford' plea to the
grand larceny count were 'S'oid" because the trial court did not conduct an
adequate plea colloquy;

C. His Alford plea to his grand larceny count was involuntary because counsel
misrepresented Ae nature of the offense;
D. Counsel rendered ineffective assistance during his direct appeal from the
grand larceny charge by failing to challenge the sufficiency of the evidence used
to convict him;

E. Trial counsel rendered ineffective assistance in his construction fraud cases by
failing to object when petitioner was ordered to pay restitution "for crimes of
which he was not convicted;

F. Restitution in his construction firaud cases was ordered for charges which were
dismissed, rendering this restitution "null and void;"
G. His pleas to both the construction fiaud and grand larceny counts were
involuntary because counsel failed to advise him that he would be required to pay
restitution;

H. His convictions for both the construction fraud and grand larceny charges
were "null and void" due to the "extrinsic fraud" of both the Commonwealth

Attorney and his own counsel;
I. He was entitled to relief based on the "cumulative errors" of his trial counsel.

The circuit court denied his petition by order dated October 15,2013. Howell v. Clarice. Case

No. CR09-1040-00F. The SupremeCourt of Virginiadismissedhis appeal on July 1,2014.
Howell V. Clarke. R. No. 140086.

' North Carolina V. Alford. 400 U.S. 24 (1970).
3

On July 3,2014, petitioner filed the instant federal habeas petition,^ raising identical
claims to those raised in his habeas petition filed in the Circuit Court for the County of Henrico.
In response to an Order from this Court, petitioner filed an amended petition on September 22,
2014. On December 21,2014, respondent filed a Motion to Dismiss petitioner's claims.
Petitioner filed responses on January 14 and January 15,2015. Because petitioner's claims are

all barred from review on the merits by either the applicable statute of limitations, 28 U.S.C.
§ 2244(d), or the Circuit Court's finding of procedural default, petitioner's claims must be
dismissed.
II. Timeliness

Petitioner's claims arising out of his construction fraud conviction (encompassing all of
Claim A, a portion of Claim B, all of Claim E, all ofClaim F, a portion of Claim G, and a

portion of Claim H) are barredby the applicable statute of limitations. A § 2254 petition for a
writ of habeascorpus must be dismissed if filed morethan one year after (1) the judgmentof
conviction becomes final; (2) the removal of any state-created impedunent to the filing of the

petition; (3) recognition by the United States SupremeCourt of 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)(A)-(D).

Based on the records of the state proceedings,petitioner's construction fi-aud convictions

became final on Jime 23,2010, the last day on whichhe could have noted an appeal of this

^For purposes ofcalculating the statute oflimitations, apetition is deemed filed when the
prisoner delivers his pleading to prison officials. Houston v. Lack. 487 U.S. 266 (1988).
Petitionerstated that he mailedhis original petitionto this Courton July 3,2014. It was received
on July 17,2014.

conviction tothe Court ofAppeals ofVirginia.^ In calculating the one-year statute oflimitations
period, a federal court must toll any time during which "a properly filed application for State
post-conviction or other collateral review... is pending." 28 U.S.C. § 2244(d)(2). Whether a
state post-conviction proceeding is "properly filed" is determined by applicable state law, as
interpreted by state courts. See Pace v. DiGueliehno. 544 U.S. 408,413 (2005); Artuzv.
Bennett 531 U.S. 4,8 (2000).

Petitioner filed his petition for a writ of habeas corpus in the Supreme Court of Virginia
on September 2,2010. At that time, 71 days ofthe one-year limitations period had run. The

court denied his petition on January 13,2011. Accordingly, the limitations period was tolled

between September2,2010 and January 13,2011. BetweenJanuary 13,2011, and March 7,

2013, when petitionerfiled his state habeas petitionin the CircuitCourt for the Countyof
Henrico, over two years passed. Since more than two years passedbetween the date petitioner's
conviction becamefinal and the date on whichhe filed his federal petition, petitioner's claims
challenging his construction fi-aud conviction are time-barred.

Petitioner argues that, pursuant to Martinez v. Rvan. _U.S,_, 132 S. Ct. 1309(2012), he is

entitled to tolling of the statute of limitations. Because Martinez applies onlyto procedurally

defaulted claims, rather than untimely-filed claims,'* it appears that petitioner intends to argue
that he is entitled to equitable tolling of the statute of limitations. The United States Supreme
Court has held that "§ 2244(d) is subject to equitable tolling in appropriate cases." Holland v.

Florida. 560 U.S. 631,634 (2010). The United States Court of Appeals for the FourthCircuit

' See Va. S. Ct. R. 5A:6(a) ("No appeal shall be allowed unless, within 30 days after entry of
final judgment [of the trial court]... counsel fails with the clerk of trial court a notice of
appeal

").

See, e^ Couch v. Woodson. No. 3:13cvl46,2013 WL 5933543, at *2, (E.D. Va. Nov. 5,
2013).

has also held that the limitations may be equitably tolled in limited circumstances. See, e.g..
Rouse V. Lee. 246 (4th Cir. 2003). However, the Fourth Circuit and several other courts have
held that "any resort to equity must be reserved for those instances where - due to circumstances

external to the party's own conduct - it would be unconscionableto enforce the limitation period

against the party and gross injustice wouldresult." Id at 246. Therefore, for equitable tolling to
apply, a petitioner must establishthat (1) he has been diligently pursuing his rights, and that (2)
some "extraordinary circumstance," beyond his control and external to his own conduct,

interfered with his ability to timely file his petition. Holland. 560 U.S. at 649 (quoting Pace. 544
U.S. at 418). Court should equitably toll the statute of limitations only in rare situations, "lest

circumstances of individualized hardship supplantthe rules of clearly drafted statutes." Harris v.

Hutchinson. 209 F.3d325,330 (4th Cir. 2000). If petitioner, by citing Martinez, intends to argue
that ineffective assistance ofcounsel excuses his untimely filing, he has not provided any factual
support for his argument that counsel rendered ineffective assistance. He has therefore not

shown that he is entitled to equitable tolling of the statute of limitations.
III. Procedural Default

Petitioner's claims challenging his grand larceny conviction (encompassing a portion of
Claim B, all of ClaimC, all of ClaimD, a portionof ClaimG, a portionof Claim H, and all of
Claim I) are timely filed; however, the CircuitCourt for the County of Henrico found them all to
be procedurally defaulted. Ifa state court finds, basedon an adequate and independent state-law
ground, that a claim is procedurally defaulted from review, the claim is not reviewable in federal

habeas. See Coleman v. Thompson. 501 U.S. 722,729-30 (1991); Williams v. French. 146F.3d

203,208-09 (4*'' Cir. 1998) (internal citations omitted). Astate procedural rule is "adequate" ifit
is "regularly or consistently applied bythe state court," and is"independent" if itsapplication

does not depend on the federal Constitution. Williams. 146 F.3d at 209 (internal citations
omitted). The only exception to this rule is if the petitioner can show cause and prejudice for the
default, or a fundamental miscarriage ofjustice, such as actual innocence. See, e.g.. Harris v.
Reed. 489 U.S. 255,262 (1989) (internal citations omitted).
A. Claim B

In Claim B, petitioner argues that his guilty pleas were "void" because the trial court did
not adequately determine that he understood the nature of the charges against him. hi

petitioner's state habeas proceedings, the Circuit Court held that this claim was procedurally
defaulted under the rule of Slavton v. 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). See Howell v. Clarke, slip op., at 4. As 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), this finding of procedural default is presumed to be correct.
Absent a showing ofcause and prejudice, this claim is not reviewable in federal habeas.
B. Claims C. G. H. and I

In Claim C, petitioner argues that his Alford plea was not entered knowingly and
voluntarily due to misrepresentation by counsel of the nature ofthe offense of grand larceny. In
Claim G, petitioner argues that his Alford plea was involuntary because counsel failed to advise

him that his sentence would include restitution. In Claim H, petitioner argues that his conviction
was "null and void" due to "extrinsic fraud" by defense counsel and the Commonwealth
Attorney. In Claim I, petitioner contends that the "cumulative errors" of his trial counsel entitle

him to habeas corpusrelief. The CircuitCourt, reviewing petitioner's state habeas petition.

found that these claims were procedurally defaulted from review by Virginia Code § 8.01654(B)(2), which provides that a habeas petition "shall contain all allegations of the facts of

which are known to petitioner at the time of filing... No writ shall be granted on the basis of

any allegation the facts of which petitioner had knowledge at the time of filing any previous
petition." Because petitioner had knowledge ofthese claims at the time he filed his first habeas

petition in the Supreme Court of Virginia challenging his grand larceny convictions, but failed to
raise these claims at that time, the court foimd that he was prevented from raising them in his
second state petition. See Howell v. Clarke, slip op., at 5,8-9.

The Fourth Circuit has held that the rule in Virginia Code § 8.01-654(B)(2) barring
successive habeas petitions is an adequate and mdependent state law rule. ^

Claeett v.

Aneelone. 209 F.3d 370, 378-79 (4th Cir. 2000). Accordingly, absent a showing of cause and
prejudice, these claims are not reviewable in federal habeas.
C. Claim D

In the instant petition, petitioner argues that appellate counsel was ineffective for failing
to challenge the sufficiency ofthe evidence on direct appeal. In his first state habeas petition
challenging his grand larceny convictions, on the other hand, petitioner alleged that appellate
counsel denied him the right to pursue a direct appeal, and that appellate counsel failed to pursue
an appeal to the Supreme Court of Virginia. Accordingly, the Circuit Court found that the claim

raised here was also defaulted pursuant to Virginia Code § 8.01-654(B)(2). Therefore, absent
cause and prejudice for this default, this claim is also not reviewable in federal habeas.
D. Cause and Prejudice

To establish cause and prejudicefor his procedurally defaultedclaims, petitionerrelies on
Martinez v. Rvan. _ U.S.

132 S. Ct. 1309(2012). See, e^ Pet. [Dkt. 1], at 6, 8. In Martinez.

8

the United States Supreme Court held that, if state law requires a petitioner to raise ineffective
assistance of counsel for the first time on collateral review, a petitioner can establish cause for

failure to raise such a claim if the state court did not appoint counsel in the collateral review
proceeding or if appointed counsel was ineffective. Id. at 1318. If a petitioner establishes cause

in this fashion, he must still establish prejudice to overcome the procedural default. In this
respect, the petitioner must establish "that the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has
some merit." Id at 1318-19 (internal citations omitted). Accordingly, in the words of a recent

Fourth Circuit case, a petitioner may rely on Martinez only if
(1) the ineffective-assistance-of-trial-counsel claim is a substantial one; (2) the
'cause' for the defauh 'consist[s] of there being no counsel or only ineffective
counsel in during the state collateral review proceeding'; (3) 'the state collateral
review proceeding was the initial review proceeding in respect to the ineffectiveassistance-of-trial-counsel claim'; and (4) state law 'requires that an ineffectiveassistance-of-trial-counsel

claim

be

raised

in

an

initial-review

collateral

proceeding.'"

Fowler v. Jovner. 753 F.3d 446,461 (4th Cir. 2014) (quoting Trevino v. Thaler. _ U.S.

133 S.

Ct. 1911,1918(2013)).

The first step in determining whether Martinez applies here is to assess whether, under

Virginia law, ineffective assistance of counsel claims may be raised on direct appeal. In this
respect, it is clear that Virginia law requires that all claims of ineffective assistance of counsel be
raised on collateral review. See, e.g.. Lenz v. Commonwealth. 261 Va. 451,460, 544 S.E.2d

299,304 (2001) (internal citations omitted) ("Claims raising ineffective assistance of counsel

must be asserted in a habeas corpusproceeding and are not cognizable on direct appeal.");
Browning v. Commonwealth. 19Va. App. 295,297 n.2,452 S.E.2d360,362 n.2 (1994) (stating
that a portion ofthe Virginia Code allowing some ineffective assistance claims to be raised on

direct ^peal was repealed in 1990). Aspetitioner was notappointed counsel inhisstate habeas
proceeding, he has clearly metrequirements (2),(3), and(4)explained inTrevino and Fowler.
Theremaining question is whether petitioner has established prejudice by showing thathis
claims of ineffective assistance of trial counsel are "substantial." Petitioner has failed to show

that his claimsare substantial, as he has not provided any factual explanation for why he believes

thatMartinez applies to his case. He has not madeany substantive allegations of ineffective
assistance of counsel, nor has he made any effort to link any ineffective assistance to his

procedural default. Accordingly, he has failed to establishthat Martinez excuses his procedural
default of Claims B, C, D, G, H, and I.
IV. Conclusion

For the above-stated reasons, Claim A, a portion of Claim B, Claim E, Claim F, a portion

of Claim G, and a portionof ClaimH are time-barred; and a portion of Claim B, Claim C, Claim
D,a portion of Claim G, a portion of ClaimH, and ClaimI are procedurally defaulted.

Accordingly, thispetition will be dismissed. An appropriate Judgment and Ordershall issue.

Enteredthis

y

Alexandria, Virginia

day of.

2015.

T.s. Ellis, m

United States Oistrict Judge

10