Pulley v. Director, Virginia Dept. of Corr.

Filing 17

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 2/1/2016. (dvanm, )

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

Jason Alexander Pulley,

)

Petitioner,

)
)

V.
Harold W.Clarke,
Respondent

)
)
)
)

l:14cvl563 (AJT/TCB)

MEMORANDUM OPINION

Jason Alexander Pulley, 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 robbery entered on a jury verdict in the Circuit Court of Dinwiddie County.
Respondent has filed a Motion to Dismiss the petition, along with a supporting brief and
exhibits. Petitioner was provided with notice as required by Local Rule 7(K) and Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975), and he has filed a reply. For the reasons which follow,
respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with
prejudice.
I. Background

On March 9,2012, a jury in Dinwiddie County found petitioner guilty of one count of

robbery. Case No. CRl 0-0611; Resp. Ex. 1. By Order entered May 8,2012, he was sentenced to
serve twenty-five (25) years in prison. Resp. Ex. 2.

Petitioner took a direct appeal of his conviction, arguing that eyewitness testimony

presented at trial was insufficientto sustain the conviction. On January 16,2013, the Court of

Appeals of Virginia refused the appeal. R. No. 0765-12-2. Petitioner acknowledges that he did
not seek further review of that decision by the Supreme Court of Virginia. Pet. at 2.

On September 17,2012, petitioner filed a petition for a state writ of habeas corpus in the
trial court, asserting that he received ineffective assistanceof counsel for the following reasons:
A.

Counsel labored under a conflict of interest.

B.

Counsel failed to move to suppress the identification
testimony of a trial witness.

C.

Counsel failed to negotiate a plea agreement.

D.

Counsel failed to investigate petitioner's defense.

E.

Counsel failed to introduce petitioner's mugshot into
evidence.

Resp. Ex. 3. The court entered a Final Order denying and dismissing the petition on the merits
on March 7,2013. Resp. Ex. 4. Again, petitioner did not seek further review of that decision by
the Supreme Court of Virginia.

On November 6,2013, petitioner turned to the federal forum and filed a first application

for relief pursuant to §2254, reiterating the claims he had raised on direct appeal and in the state
habeas corpus proceeding. By an Order dated December 13,2013, the petition was dismissed,
without prejudice, for petitioner's failure to exhaust the claims before the Supreme Court of
Virginia. Case No. I:13cvl465 (AJT/TRJ); Resp. Ex. 6.

Petitioner then returned to the state forum and filed a petition for a writ of habeas corpus

in the Supreme Court of Virginia, realleging the same claims he raised in his fnst federal habeas

application. Resp. Ex. 7. In an Order dated June 25,2014, the Court dismissed the petition for
the dual reasons that it was filed untimely pursuant to Va. Code §8.01-654(A)(2), and that the

claimsraisedwere barred from consideration by Va. Code §8.01-654(B)(2), whichprecludes
consideration of a successive habeas claim which was known to the petitioner at the time the
earlier petition was filed. Resp. Ex. 8.

Petitionertimely filed the instant §2254application on October 15,2014, assertingthe
following claims:

1.

The eyewitness testimony presented at trial was
insufficient to sustain the conviction.

2.

He received ineffective assistance of counsel because

his attorney failed to prepare an adequate defense, in
that she:

A.

failed to request a jury instruction that
could have resulted in his conviction

of a lesser offense;

B.

failed to challenge the prosecution's
theory that money found in the vehicle
in which he was a passenger came
from the robbery; and

C.

failed to alert him to the presence of
venire member who could have been

prejudiced against him.
3.

He received ineffective assistance ofcounsel when his

attorney failed to present evidence in the form of his
booking photograph.
4.

His attorney labored imder a conflict of interest
because she previously had represented a defendant
against whom petitioner testified.

In an initial Order, petitioner was directed to show cause why all of his claims should not be

precluded from federal review due to their procedural default in the Virginia courts. (Dkt. No. 2)
Petitioner acknowledged in his response that he could not demonstrate why his first claim, a

challenge to the sufficiency of the evidence at trial, should not be deemed procedurally defaulted,
but he contended that his claims of ineffective assistance of counsel should be considered on the

merits pursuant to Martinez v, Rvan.

U.S.

, 132 S.Ct. 1309 (2012). (Dkt. No. 3)

Accordingly, in an Order datedJuly 10,2015, the Courtstatedthat it woulddismiss petitioner's
first claim and directedrespondent to show cause why the writ shouldnot be grantedas to the

remaining claims of ineffective assistance. (Dkt. No. 5)* As noted above, respondent has now
filed a Rule 5 Answer and a Motion to Dismiss, and petitioner has filed a reply. Accordingly, the
matter is now ripe for adjudication. For the reasons which follow, respondent's Motion to
Dismiss will be granted, and the petition will be dismissed, with prejudice.
II. Exhaustion and Procedural Bar

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 of the 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 m 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.
Henry. 513 U.S. 364 (1995).

'Although the Court stated in the body ofthe Order ofJuly 10,2015 that petitioner's claim that
the trial evidence was insufficient to sustain the conviction would be dismissed (Dkt. No. 5 at 1),

the dismissal language inadvertently thereafter was omitted. To rectify that clerical error, the claim
will be dismissed in the Order that accompanies this Memorandum Opinion.

However, "[a] claimthat has not beenpresented to the highest statecourtnevertheless
may be treatedas exhausted if it is clearthat the claimwouldbe procedurally barredunder state

law ifthe petitioner attempted to present it to the state court." Bakerv. Corcoran. 220 F.3d 276,
288 (4th Cir. 2000) rciting Grayv. Netherland. 518 U.S. 152,161 (1996)). Importantly, "the

procedural bar that givesrise 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).

Federal courts may not review a barred claim 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 ofthe claim.

Coleman v Thompson. 501 U.S. 722,

753-54 (1991); Clozza v. Murrav. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton. 845 F.2d at
1241-42. Importantly, a court need not consider the issue ofprejudice in the absence of cause.
See Komahrens v. Evatt. 66 F.3d 1350,1359 (4th Ck. 19951 cert, denied. 517 U.S. 1171 (1996).
III. Analysis

At this juncture, it is apparent that all of petitioner's present claims of ineffective
assistance of counsel are procedurally barred from federal review, for two distmct reasons. As

noted above, petitioner argued in response to the Court's initial order that the default of these
claims should be excused on the basis of Martinez v. Rvan. supra. In Martinez, the Supreme

Court

... held that a federal habeas petitioner who seeks to raise an
otherwise procedurally defaulted claimof ineffective -assistance-oftrial-counsel before Ihe federal court may do so only if: (1) the
ineffective-assistance-of-trial-counsel claim is a substantial one; (2)

the 'cause' for default 'consist[s] of there being no counsel or only
ineffective counsel during the state collateral review proceeding'; (3)
'the state collateral review proceeding was the initial review
proceeding in respect to the ineffective-assistance-of-trial-counsel
claim'; and (4) state law requires '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. 569 U.S. at
133 S. Ct 1911,1918 (2013). The Fourth Circuit has interpreted Martinez as creating a "narrow

exception" to the general rule of Coleman. supra, which bars federal review of a claim that was
not exhausted in the state courts. Fowler. 753 F.3d at 460-61. For the reasons which follow,

petitioner's reliance on the "narrow exception" of Martinez is unavailing as to all of his
remaining claims.
A. Claims 3 and 4

Petitioner originally raised claims 3 and 4 of the instant petition in his initial state
collateral proceeding, where they were denominated as claims E and A, respectively. Resp. Ex.

3. In that proceeding, the habeas trial court denied both claims on their merits. Resp. Ex. 4.
However, the clauns were not thereby exhausted for purposes of federal review, because

petitioner failed to appeal the trial court's denial of his habeas application to the Supreme Court

of Virgmia. Cf O'Sullivan. 526 U.S. at 845. Thus, the default ofthese claims did not arise out of
the absence of counsel during the initial-review collateral proceeding, cf Fowler. 753 F.3d at
461; rather, the default occurred because after the claims were denied on the merits during the

initial-review collateral proceeding, petitionerhimselfdid not pursue an appeal of their denial to
the highest state court. Accordingly, petitioner's reliance on Martinez as to these claims is
misplaced.

In petitioner's replyto the respondent's Motion to Dismiss, he argues that Martinez
should be deemed to excuse the procedural default created when he failed to appeal the habeas
trial court's order, because he continued to act without the assistance of counsel. However, the

Court in Martinez was careful to clarify that ineffective assistance of counsel in an appeal from a
post-conviction proceeding, as opposed to in the initial-review stage of the collateral proceeding,
does not constitute cause to overcome a procedural bar. Martinez. 132 S.Ct. at 1320 (noting that
the holding ofthe case does not include attorney errors in "other kinds ofproceedings, including
appeals form initial-review collateral proceedings...."). Thus, it follows that the fact that

petitioner remained unrepresented when he defaulted his claims at the appellate stage of his first
state habeas proceeding does not suffice to bring his actions within the Martinez exception.

When petitioner subsequently attempted to raise claims 3 and 4 before the Supreme Court
of Virginia in his second state collateral proceeding, the Court found the claims to be both
untimely and successive. Both of these reasons have been held to be adequate and independent
state law grounds preventing federal habeas review of procedurally defaulted claims. See

Sparrow v. Dir.. Dep't of Corrections. 439 F.Supp. 2d 584, 587 (E. D. Va. 2006) (finding the
limitations period of Va. Code §8.01-654(A)(2) to be adequate and independent); Mackall v.
Angelone. 131 F.3d 442,446 (4th Cir. 1997) (determining procedural bar of successive habeas

applications in Va. Code §8.01-654(B)(2) to be a well-recognized adequate and independent

ground). Therefore, claims 3 and 4 of this petition are both unexhausted and procedurally

defaulted, and because petitioner has failed to establish cause andprejudice for theirdefault,
federal consideration ofthe claims is precluded.
B.

Claims 2(A\ - (O

Martinez likewise does not operate to excuse the default of claims2(A)-(C), albeitfor a
different reason. Unlike claims 3 and 4, these claims were not considered on the merits in any

state habeas corpusproceeding. Martinez does not apply to permittheir review here because in
each instance, the allegationspetitioner presents are not sufficiently "substantial" to come within
the "narrow exception" created by Martinez. As the Court in that case stressed, "To overcome

the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the prisoner must demonstrate that the
claim has some merit." Martinez. 132 S. Ct. at 1318. It is the petitioner's burden to demonstrate
that his claims are "substantial." Fowler. 753 F.3d at 461. Petitioner here fails to make such a

showing.

To establish ineffective assistance of counsel, a petitioner must show that (1) "counsel's
performance was deficient" and (2) "the deficient performance prejudiced the defendant."
Strickland v. Washington. 466 U.S. 668,687 (1984). To prove that counsel's performance was

deficient, a petitioner must show that "counsel's representation fell below an objective standard
of reasonableness" id. at 688, and that the "acts and omissions" of counsel were, in light of all

the circumstances, "outside the range of professionally competent assistance." Id. at 690. Such a

determination "must be highly deferential," with a "strong presumption that coimsel's conduct

falls within the wide range of reasonableprofessional assistance." Id. at 689; see also. Burket v.
Aneelone. 208 F.3d 172,189 (4th Cir. 2000) (reviewing court "must be highly deferential in
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scrutinizing [counsel's] performanceand must filter the distorting effects of hindsight from [its]
analysis"); Spencer v, Murray. 18 F.3d 229,233 (4th Cir. 1994) (court must "presume that
challenged acts are likely the result of sound trial strategy."). To satisfy Strickland's prejudice
prong, a "defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors,the result of the proceeding wouldhave been different." Strickland. 466
U.S. at 694. "A reasonableprobabilityis a probabilitysufficientto undermmeconfidence in the
outcome." Id; accord. Lovitt v. True. 403 F.3d 171,181 (4th Cir. 2005). The burden is on the

petitionerto establishnot merelythat counsel's errorscreatedthe possibility ofprejudice, but
rather "that they worked to his actual and substantialdisadvantage, infecting his entire trial with
errors of constitutional dimension." Murray v. Carrier. 477 U.S. 478,494 (1986) (citations

omitted, emphasis original). The two prongs of the Strickland test are "separate and distinct
elements of an ineffectiveassistance claim," and a successful petition "must show both deficient

performance and prejudice." Spencer. 18F.3d at 233. Therefore, a court neednot review the
reasonableness of counsel's performance if a petitioner fails to show prejudice. Ouesinberry v.
Tavlore. 162 F.3d 273,278 (4th Cir. 1998).

In claim 2(A), petitionercontends that counsel providedineffective assistance by failing

to requesta jury instruction that wouldhave allowed thejury to find him guilty only of being a

accessory afterthe fact to the robbery. However, it is well settled in federal jurisprudence that
"strategic choices made [by counsel] after thorough investigation... are virtually

unchallengeable." Gray v. Branker. 529 F.3d 220,229 (4th Cir.), cert, denied. 129 S. Ct. 1579

(2009), quotmg Strickland. 446 U.S. at 690-91. Here, the record demonstrates that counsel chose
to pursue a defense which, if successful, would have resulted in petitioner's acquittal of the

robbery charge. Counsel argued to the jury that the evidence failed to prove beyond a reasonable

doubt that petitioner was the individual who entered the bank and committedthe robbery.
Counsel challengedthe reliabilityofthe bank teller's testimonyby pointing out that the teller had
failed to observe any tattoos on the wrists ofthe robber. Counsel then had petitioner display his
tattoos to the jury. Resp. Ex. 9, T. 125. Counsel argued that petitioner had been an innocent
passenger in a vehicle from which another individual had exited and committed the robbery. In

furtherance of that scenario, petitioner testified that he had no advance knowledge that the other
passenger had planned to commit a robbery, and that he stayed in the car while the robbery was
carried out and was unaware that it had occurred. Id, T. 126-28.

Against this backdrop, it is readily apparent that petitioner's current argument that
counsel was ineffective for failing to seek a jury instruction that would have allowed petitioner to

be found guilty of being an accessoryafter the fact is without merit. Counsel's pursuit of a

strategy designed to resultin petitioner's acquittal of the robbery charge was patently reasonable,
and its efficacy would have beenundermined had counsel simultaneously suggested to thejury
that petitioner mighthavehad some criminal culpability after all. In short, petitioner's claim2(A)
falls short of callinginto question the effectiveness of coxmsel's representation, and as such it is
not sufficiently substantial to warrant setting aside its procedural defaultpursuant to Martinez.

In claim2(B), petitioner asserts that counsel'sefforts fell belowconstitutional standards
when she failed to challenge the prosecution's argument that the money taken duringthe robbery
was the same money that was recovered from the vehicle in which petitioner was a passenger.
However, evidence adduced at trial established that the individual who committed the robbery

entered the vehicle, and that when the vehicle was stopped 'two to three minutes" later, it
10

contained "piles of money." Resp. Ex. 9, T. 125-26. Given this testimony, the argument

petitioner now suggests would have undermined counsel's credibility with the jury, and as such
could have undermined counsel's strategy of attempting to convince the jurors that petitioner was
only an innocent bystander to the robbery. Since a court must be "highly deferential" in
scrutinizing counsel's performance, Burket. 208 F.3d at 189, and since petitioner offers nothing
to suggest that the outcome of the trial have been different had counsel made the argument he
now suggests, he has failed to demonstrate that claim 2(B) is of sufficient merit to be deemed
substantial for purposes of applying Martinez. Thus, petitioner has failed to demonstrate cause
and prejudice for his procedural default of claim 2(B).

hi claim 2(C), petitioner asserts that counsel provided ineffective assistance by failing to
alert him that Valerie Johnson was a member of the venire at his trial. Petitioner states that had

he known this he would have urged counsel to strike Johnson because she worked with

petitioner's mother and thus could have had advanced knowledge of the case that would have
prejudiced her against him. Significantly, however, petitioner never says that he expressed these
concerns about Johnson to his attorney. Without being apprised of information that was uniquely
within petitioner's possession, counsel had no reason to bring Johnson's presence to petitioner's
attention. As formulated, then, petitioner's argument fails to "evaluate the conduct from

counsel's perspective at the time," and does not fully "reconstruct the circumstances of counsel's
challenged conduct." Strickland. 466 U.S. at 689. From counsel's perspective, there was no
reason to strike Johnson from the venire, since she had not been apprised by petitioner of the

alleged working relationship between Johnson and petitioner's mother. Accordingly, counsel's
failure to move to strike Johnson satisfies neither component of the Strickland test, and claim
11

2(C) has not been shown to be of sufficient substance to merit application of the Martinez
exception.
III. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss will be granted, and this

petition for habeas corpus relief will be dismissed with prejudice. An appropriate Order shall
issue.

Entered this

/

day of

2016.

Alexandria, Virginia

AndionyJ.
UnitedStates)

12

Judge

M:x
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