Lambert v. Clarke

Filing 13

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 3/22/16. (gwalk, )

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

Michael Keith Lambert,
Petitioner,

v.
Harold W. Clarke,
Respondent.

1:15cv284 (AJT/MSN)

)

MEMORANDUM OPINION
Michael Keith Lambert, a Virginia inmate proceeding through counsel, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his conviction of second degree murder and use of a fireann in committing
that offense entered on a plea of guilty in Prince William County Circuit Court. In particular,
Lambert contends that the Supreme Court of Virginia failed to implement a writ of habeas corpus
previously granted to him by the United States Court of Appeals for the Fourth Circuit because it
denied relief based upon procedural defects in his claims. Respondent has filed a Motion to
Dismiss the petition, along with a supporting brief and exhibits, to which petitioner has filed a
memorandum in opposition. For the reasons that follow, respondent's Motion to Dismiss will be
granted, and the petition will be dismissed.
I. Background
On September 18, 2003, Lambert shot and killed his wife, Sharon Lambert. He appeared
for trial on June 4, 2004, and pleaded guilty to second degree murder during arraignment.' When

'Lambert had been charged with first degree murder.

the trial court inquired during the colloquy if Lambert was pleading guilty because he was, in
fact, guilty, Lambert responded, "I plead guilty because I can't prove otherwise. I mean I
couldn't- there was no evidence collected to defend me. Everything I've seen is against me."
With that, the court stopped the colloquy, advised Lambert's counsel to speak with him, and
declared a recess. When the proceeding reconvened, the colloquy continued, and the court
ultimately accepted the plea and found Lambert guilty. Lambert received a sentence of 43 years
imprisonment with 13 years suspended. Case Nos. CR05057716 and CR05057717.
Lambert filed no direct appeal.
On November 6, 2006, Lambert filed a pro ~ petition for a writ of habeas corpus
pursuant to §2254 in the United States District Court for the Eastern District of Virginia.
Lambert v. Johnson, Case No. 2:06cv631. The petition set out several claims for relief: (1)
ineffective assistance of counsel for seven reasons, including failure to inform him of his appeal
rights; (2) his Alford plea was not voluntarily or intelligently entered; (3) denial of his right to
appeal due to counsel's failure to prepare a notice of appeal or advise him of his right to appeal;
and (4) "biased judge, prejudicial atmosphere, enhancement outside PIC guidelines and plea
agreement." On July 24, 2007, a United States Magistrate Judge issued a 57-page Report and
Recommendation concluding that the petition should be denied. 2 (Dkt. No. 20) After petitioner
submitted objections, United States District Judge Rebecca Beach Smith entered a Final Order
adopting and approving the magistrate's report, denying and dismissing the petition, and
declining to issue a certificate of appealability. (Dkt. No. 24)
2

Specifically, the magistrate determined that 20 of petitioner's claims were procedurally
defaulted, one claim was not federally cognizable, and five claims - including the one at issue hereshould be dismissed on the merits.
2

Lambert appealed the dismissal of his §2254 application to the Fourth Circuit Court of
Appeals. Lambert v. Johnson, Case No. 07-7492. By Order filed July 29, 2008, the court
granted Lambert a certificate of appealability "on Lambert's claim that his sentencing attorney
was ineffective in failing to consult with him regarding an appeal. We DENY a certificate of
appealability on all other issues and dismiss Lambert's appeal therefrom." (Dkt. No. 18) On
May 22, 2009, prior to briefing, the appellate court appointed counsel for Lambert. (Dkt. No. 26)
In an unpublished opinion, the Fourth Circuit vacated and remanded the dismissal of Lambert's
habeas petition, stating in relevant part as follows:
... Lambert pleaded guilty to second-degree murder in state court for
the death of his wife. Lambert's brief consultation with counsel
regarding his Alford plea occurred in open court. After conducting
a short colloquy, the court accepted Lambert's plea. At sentencing,
the prosecutor proffered victim impact statements and argued for an
upward departure from the state sentencing guidelines even though
the plea agreement provided that the state would not recommend a
sentence. The court accepted the prosecutor's recommendation and
sentenced Lambert to 43 years' imprisonment. Lambert expressed
dissatisfaction with this result, but his counsel never advised him of
the right to appeal. Lambert exhausted post-conviction remedies
under state law and filed this habeas petition claiming ineffective
assistance of counsel.

* * *
In this case, trial counsel admits he did not advise Lambert of his
right to appeal. Had Lambert kno'Ml of his appellate rights, he could
have asserted three nonfrivolous arguments challenging his
conviction and sentence: (I) the validity of his guilty plea, (2) the
Commonwealth's alleged breach of the plea agreement, and (3) the
trial court's admission of victim impact statements in violation of
state law. Lambert reasonably demonstrated interest in pursuing an
appeal by expressing dissatisfaction shortly after the sentence was
imposed. See Frazerv. South Carotin~ 430 F.3d 696,712 (4th Cir.
2005) (noting that interest in appeal demonstrated by expression of
dissatisfaction). The state court's contrary determinations are

3

unreasonable application of federal law; the District Court erred by
denying the writ.
The order of the District Court will be VACATED and the case
REMANDED. On remand, the District Court shall grant the writ of
habeas corpus allowing Lambert to pursue his appeal in state court.
Lambert v. Johnson, 387 F. App'x 372,2010 WL 2711309 (4th Cir. July 6, 2010).
Pursuant to the appellate opinion and ensuing mandate, Judge Smith entered a Final Order
in Case No. 2:06cv631 on August 2, 2010, holding that "the Petition for Writ of Habeas Corpus is
GRANTED to allow petitioner Lambert to pursue his appeal in state court." (Dkt. No. 39)
On March 21, 2011, Lambert, now with the assistance of counsel, filed a petition for delayed
appeal in the Court of Appeals of Virginia, raising three claims:
1.

The trial court erred by interposing a "modified"
Alford plea during the plea colloquy and then
accepting that plea, which was not entered knowingly,
voluntarily, or intelligently.

2.

The trial court erred by permitting the
Commonwealth, in breach of the plea agreement, to
make a recommendation regarding Lambert •s
sentence when the Commonwealth had plainly agreed
to make "no recommendation" as to sentence.

3.

The trial court erred in admitting and relying on
victim impact testimony presented during Lambert's
sentencing hearing in violation of Virginia law.

Resp. Ex. 1 at 5.
On July 29, 2011, the Court of Appeals of Virginia denied the petition. As to the first,
compound assignment of error, the court addressed each argument separately, holding that: (a)
"the trial court did not erroneously interpose a modified Alford plea nor improperly participate in
plea discussions in violation of the Rules;" and (b) "[b]ecause appellant freely, voluntarily, and
4

knowingly pled guilty, Rule SA:18 precludes consideration of appellant's argument [that the plea
was not knowing and voluntary] on appeal ... Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule SA: 18."3 Lambert v.
Commonwealth, R. No. 2417-10-4 (Va. Ct. App. July 29, 2011), slip op. at S, 6 (citation
omitted); Resp. Ex. 2.
As to the second assignment of error, that the Commonwealth's Attorney breached the
plea agreement by recommending a sentence, the appellate court found:
Appellant cites case law regarding a defendant's rights regarding plea
agreements, however, those cases involved situations where a
defendant made timely objections to the trial court's ruling ... Here,
appellant did not object when the Commonwealth's attorney made its
recommendation and subsequent imposition of punishment.
Moreover, appellant did not move to withdraw his pleas pursuant to
Code§ 19.2-296 or Rule 3A:8(c)(2), nor did he object or raise this
issue at any time while the trial court retained jurisdiction over the
matter. Accordingly, Rule SA: 18 precludes consideration of
appellant's argument on appeal. ...
Although Rule SA: 18 allows exceptions for good
cause or to meet the ends ofjustice, appellant does not
argue that we should invoke these exceptions. See
~.Redman v. Commonwealth, 2S Va. App. 21S,
221, 487 S.E.2d 269, 272 (1997) ("In order to avail
oneself of the exception, a defendant must
affirmatively show that a miscarriage of justice has
occurred, not that a miscarriage might have occurred."
(emphasis added)). We will not consider, sua sponte,
a "miscarriage ofjustice" argument under Rule SA: 18.
Edwards v. Commonwealth, 41 Va. App. 7S2, 761, S89 S.E.2d 444,
448 (2003) (en bane).
3Rule

SA:l8 of the of the Rules of the Supreme Court of Virginia provides that "no ruling of the
trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to
attain the ends of justice."

s

l4,., slip op. at 7.
As to the third assignment of error alleging that the trial court erred in admitting and
relying on victim impact testimony, the appellate court noted that Lambert cited case law where a
defendant had timely raised objections in the trial court, but that he "failed to object to the
testimony at any time, raising this issue for the first time on appeal. Accordingly, Rule SA: 18
precludes consideration of appellant's argument on appeal." ld., slip op. at 8.
Lastly, the appellate court noted that immediately after the argument on the third
assignment of error, Lambert's brief included an additional statement: "As the Fourth Circuit
decided, these three non-frivolous issues should be heard on direct appeal despite the errors of
Lambert's constitutionally deficient trial counsel." The court rejected that position, explaining:
Rule 5A:l2(c)(l) provides, in pertinent part: "Under a heading
entitled "Assignments of Error," the petition shall list, clearly and
concisely and without extraneous argument, the specific errors in the
rulings below upon which the party intends to rely."
Appellant did not include this issue as an assignment of error as
required pursuant to Rule 5A:l2(c)(l). Therefore, he failed to
comply with Rule 5A:l2(c); thus, we will not consider its merits
pursuant to the rules of this Court.
Id., slip op. at 8.
Lambert thereafter filed a demand for a review by a three-judge panel, arguing that the
ends of justice exception should have been applied to excuse the procedural default of his claims.
The panel denied the petition for appeal on January 4, 2012, echoing the reasoning reflected in
the foregoing opinion. It concluded with the following statement:
Finally, contrary to the argument made by appellant in his request for
reconsideration to a panel of this Court, the order of this Court does

6

not ignore the decision of the United States Court of Appeals for the
Fourth Circuit. That decision merely concluded that counsel was
ineffective for failing to advise appellant of his right to appeal, and
that the record presented "nonfrivolous" appealable issues that
counsel could have presented on appeal. The impact of that decision
was to "allow[] Lambert to pursue his appeal in state court." Lambert
v. Johnson, 387 Fed. Appx. 372,374 (4th Cir. 2010). Nothing in the
decision of the Fourth Circuit required this Court to suspend its rules
of appellate procedure, to dilute the standard for attaining the ends of
justice, or to grant relief where none is warranted.
Lambert v. Commonwealth, R. No. 2417-10-4 (Va. Ct. App. Jan. 4, 2010), slip op. at 9-10; Resp.
Ex. 3. The Supreme Court of Virginia refused Lambert's petition for further appeal. Lambert v.
Commonwealth, R. No. 120207 (Va. June 12, 2012); Resp. Ex. 5.
On April3, 2013, Lambert filed a counseled petition for a state writ of habeas corpus in
the Prince William County Circuit Court, raising the following claims:
A.

Criminal appeals must comport with due process.

B.

The Court of Appeals deprived him of the "ends of
justice" exception to any default of the
Commonwealth's breach of the plea agreement.
I. The Court of Appeals incorrectly applied the ends
of justice exception to the Commonwealth's
sentencing recommendation.
2. The Court of Appeals incorrectly applied the ends
of justice exception to the Commonwealth's eliciting
victim testimony regarding sentencing.

Lambert v. Clarke, Case No. CL13003674-00; Resp. Ex. 6. By an Order dated December 12,
2013, the circuit court dismissed the petition. Resp. Ex. 7. Lambert petitioned the Supreme Court
of Virginia for review, and set out the following assignment of error:
The Circuit Court of Prince William County erred in failing to grant
Michael Keith Lambert's petition for a writ of habeas corpus. In
7

failing to grant the petition, the lower court perpetuated a glaring
error of law and fact occurring on appeal from Lambert's sentencing.
There, despite a federal writ of habeas corpus "allowing Lambert to
pursue his appeal," Lambert v. Johnson, 387 F. App'x 372, 374 (4th
Cir. 2010), the Court of Appeals held that Rule 5A:18 barred the
appeal because Lambert's attorney- whom the Fourth Circuit found
constitutionally deficient - failed to preserve issues for appeal. The
Court of Appeals erred in refusing to apply the "ends of justice"
exception in Rule 5A: 18, thereby depriving Lambert of his
constitutional right to due process and draining the federal writ of all
meaning.
Resp. Ex. 8 at 2. The Supreme Court of Virginia refused the petition for appeal. Lambert v.
Clarke, R. No. 140409 (Va. Sept. 24, 2014); Resp. Ex. 9.
Lambert filed the instant application for§ 2254 relief on March 3, 2015, arguing that the
Virginia courts improperly denied him the benefit of the writ issued by this court pursuant to the
directions of the Fourth Circuit Court Appeals. 4 The Commonwealth has moved to dismiss the
petition, and petitioner has filed his opposition to the motion. Accordingly, the matter is now ripe
for disposition. For the following reasons, the motion to dismiss will be granted, and the petition
will be dismissed.

II. Exhaustion and Procedural Default
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); Granbeny v Greer, 481 U.S. 129 (1987); Rose

4

As petitioner correctly points out, this petition is not a "second or successive" petition to which
the requirements of28 U.S.C. § 2244 apply, because it concerns events that occurred after his first
§ 2254 application was granted. United States v. Hairston, 754 F.3d 258, 262 (4th Cir. 2014) ("We
hold, therefore, that a numerically second §2255 motion should not be considered second or
successive pursuant to §2255(h) where, as here, the facts relied on by the movant seeking
resentencing did not exist when the numerically first motion was filed and adjudicated."); In re
Williams, 444 F.3d 233 (4th Cir. 2006) (applying the same principle in the context of § 2254
proceedings).

8

v. Lundy, 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 in his federal habeas corpus application to the Supreme
Court of Virginia on direct appeal or in a state habeas corpus petition. See Duncan v. Henry, 513
U.S. 364 (1995). Further, "[t]he exhaustion requirement demands that the petitioner 'do more
than scatter some makeshift needles in the haystack of the state court record. The ground relied
upon must be presented face-up and squarely."' Mallory v. Smith, 27 F.3d 991,995 (4th Cir.
1994) (quoting Martens v. Shannon, 836 F.2d 715,717 (1st Cir. 1988)).
Where a habeas petitioner has presented a claim that a state court has found to be
procedurally defaulted, that determination is entitled to a presumption of correctness on federal
habeas corpus review, Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988) (citing 28 U.S.C.
§ 2254(d)), provided two foundational requirements are met. Harris v. Reed, 489 U.S. 255, 262-

63 ( 1989). First, the state court must have relied explicitly on the procedural ground to deny
petitioner relief. Id. Second, the state procedural rule relied on to default petitioner's claim must
be an independent and adequate state ground for denying relief. ld. at 260; Ford v. Georgia, 498
U.S. 411,423-24 (1991). When these two requirements have been met, federal courts may not
review the barred claims absent a showing of cause and prejudice or a fundamental miscarriage
of justice, such as actual innocence. Harris, 489 U.S. at 260.
III. Standard of Review

When a state court has addressed the merits of a claim raised in a federal habeas petition,
9

a federal court may not grant the petition based on that 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), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"). This standard reflects the view that "state
courts are the principal forum for asserting constitutional challenges to state convictions," and
federal habeas actions are a "guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter,
526 U.S. 86, 102-03 (2001) (citation and internal quotation marks omitted). 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 free-standing claims themselves." MeLee v. Angelone,
967 F. Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139 F.3d 891 (4th Cir. 1998) (table).
Whether a state court decision is "contrary to" or "an unreasonable application of' federal
law requires an independent review of each of these requirements. See Williams v. Taylor, 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 oflaw or if the state court decides a case differently than [the United States Supreme]
Court has on a set of materially indistinguishable facts." hh 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 from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case." ld. Importantly, this
standard of reasonableness is an objective one, id. at 41 0, and "is difficult to meet ... because it
was meant to be." Harrington, 526 U.S. at 102. "The question under AEDPA is not whether a
10

federal court believes the state court's determination was incorrect but whether that
determination was unreasonable- a substantially higher threshold." Schriro v. Landrigan, 550
U.S. 465,473 (2007). "[S]o long as 'fairmindedjurists could disagree on the correctness of [a]
state court's decision,' a state court's adjudication that a habeas claim fails on its merits cannot
be overturned by a federal court." Harrington, 526 U.S. at 102 (quoting Yarborough v.

Alvora~

541 U.S. 652, 664 (2004)). Thus, "even a strong case for relief does not mean the state court's
contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
In short, the federal inquiry is not whether the trier of fact made the correct determination of a
petitioner's guilt or innocence, but instead is concerned only with whether the trier of fact made a
rational decision. Herrera v. Collins, 506 U.S. 390, 402 (1993); Wilson v. Greene, 155 F.3d
396,405-06 (4th Cir. 1998) (citing Wright v. West, 505 U.S. 277, 292 (1992)).

IV. Analysis
In his principal argument before this Court, Lambert contends that he has not received the
relief the Fourth Circuit Court of Appeals intended when it granted him a federal writ of habeas
corpus because he did not prevail in the mandated state direct appeal. As described above, the
Virginia courts rejected that argument on the merits in Lambert's ensuing state habeas corpus
action. Because the result reached in the state habeas proceedings was not contrary to nor an
unreasonable application of clearly established federal law, and was not based on an
unreasonable determination of the facts, the same result is compelled here. See 28 U.S.C. §
2254(d).
In its opinion remanding Case No. 2:06cv631, the Fourth Circuit Court of Appeals
directed that "[o]n remand, the District Court shall grant the writ of habeas corpus allowing
11

Lambert to pmsue his appeal in state court." Lambert v. Johnson, 387 F. App'x at 372. In
accordance with those instructions, the district court entered a Final Order in Case No. 2:06cv631
granting the petition for a § 22S4 writ of habeas corpus "to allow petitioner Lambert to pursue his
appeal in state court." (Dkt. No. 39) There can be no dispute that at this juncture, these
instructions have been followed: petitioner has been allowed to "pursue" a belated direct appeal
in both the Court of Appeals of Virginia and the Virginia Supreme Court. That petitioner did not
obtain the relief he desired in those proceedings does not mean that the state courts "refused to
honor the writ" and "prevented the appeal,'' as petitioner claims. See Pet. at 10, 3. By its plain
language, the writ compelled no specific outcome in the belated appeal, and it was fully executed
when the Virginia courts entertained the appeal. Thus, the Virginia courts' rejection of
Lambert's argument in the state habeas proceeding that the federal writ was "drain[ed) ... of all
meaning" when his claims were entertained but found to be in procedural default was factually
reasonable.
In addition, the decision of the Virginia courts on habeas review to honor the procedural

default imposed on Lambert's claims in the belated direct appeal was in accord with clearly
established federal law. As discussed above, it is thoroughly settled that a procedural default
explicitly imposed by a state court is entitled to a presumption of correctness on federal habeas
corpus review so long as the applicable procedural rule is an independent and adequate state
ground for denying relief. Harris, 489 U.S. at 260-63. Here, petitioner's claims were defaulted
on the belated direct appeal expressly pursuant to Rule SA: 18 because they were not preserved by
contemporaneous objection in the trial court. See n. 3, supra. Rule SA: 18 has been held to be an
independent and adequate state ground for denying relief. See King v. Dean, 9SS F.2d 41 (4th
12

Cir. 1992) (unpublished) (affirming district court's finding of procedural default for petitioner's
failure to contemporaneously object pursuant to Rule 5A:18); Olajuwon v. Johnson, 2009 WL
2434882 (E.D. Va. Aug. 6, 2009) at *4 ("Rule 5A:l8 constitutes an adequate and independent
ground for denying a claim."), (citing Cladgett v. Angelone, 209 F.3d 370, 378 (4th Cir. 2000);
Chandlerv. Angelone, 2002 WL 32514958 (E.D. Va. Mar. 20, 2001) at *8 (recognizing that
Rule SA: 18 barred a claim because Fourth Circuit had held that the "substantially identical"
contemporaneous objection rule applied in the Supreme Court of Virginia, Rule 5:25, was an
independent and adequate state procedural rule), appeal dismissed, 53 F. App'x 304 (4th Cir.
Dec. 24, 2002).) Under federal law, that determination of procedural default by the Virginia
courts is presumptively correct. Clanton, 845 F.2d at 1241. 5
Lambert contends that the state courts erred in finding that he failed to show cause and
prejudice sufficient to overcome the default of his claims, but his arguments in that regard fall
short. Lambert asserts that the procedural default of the three "nonfrivolous" claims identified
by the Fourth Circuit was caused by his trial counsel's ineffective assistance in failing to
interpose the contemporaneous objections at sentencing that would have preserved those alleged
errors for appellate review. However, it is well settled in federal jurisprudence that an allegation
of ineffective assistance must itself have been exhausted as an independent claim before it can
supply the basis to excuse a procedural default. As the Fourth Circuit has explained:
Swisher also asserts that he has demonstrated cause stemming from

5Not

surprisingly, petitioner argues that the Virginia courts erred in assuming that the "federal
writ needed to comply with ... state procedural mechanism[s] ...." Pet. at 3. However, even when
read broadly, neither the Fourth Circuit's opinion nor the district court's order granting the federal
writ contained any express or implicit directive requiring the the Virginia courts to disregard their
own applicable procedural rules or to consider the three "nonfrivolous" issues on their merits.

13

his counsel's ineffectiveness in defaulting this claim. The requisite
ineffective assistance, however, "is itself an independent
constitutional claim" subject to the requirement ofexhaustion in state
court and to the doctrine of procedural default. Edwards v. Carpenter,
529 U.S. 446,451 (2000) (emphasis in original); id. at 453 (holding
that ineffective assistance claims asserted as cause for procedural
default of other claims are themselves subject to procedural default
rule); see also [Murray v.] Carrier, 477 U.S. [478] at 488-89 [(1986)]
(noting that "the exhaustion doctrine ... generally requires that a claim
of ineffective assistance be presented to the state courts as an
independent claim before it may be used to establish cause for a
procedural default"). Swisher does not assert that he can demonstrate
cause and prejudice for his default of this ineffectiveness claim.
Accordingly, he cannot use ineffective assistance of counsel to
demonstrate cause for the failure to raise the use of perjured
testimony claim.
Swisher v. True, 325 F.3d 225, 231 (4th Cir.), cert. denied, 539 U.S. 971 (2003).
Here, the claim of ineffective assistance upon which petitioner attempts to rely as the
basis for his cause-and-prejudice argument has not been exhausted in the state forum. In his
original § 2254 application, Lambert did argue that his attorney was ineffective for failing to
object at sentencing. Case No. 2:06cv631, Initial Petition, Claim I(D). However, the district
court rejected that claim, and as discussed above, the Fourth Circuit's subsequent certificate of
appealability was restricted to the sole issue of whether Lambert's counsel rendered ineffective
assistance by "failing to consult with him regarding an appeal." As to all other issues, the
certificate was expressly denied. Thus, the sole issue before the appellate court was whether
counsel was ineffective for failing to advise Lambert regarding an appeal; the separate question
of whether counsel's failure to interpose certain objections at sentencing constituted ineffective
assistance was not addressed and hence was not exhausted.
Petitioner argues that trial counsel's "failure to preserve issues for appeal ... is nothing

14

more than another aspect of the ineffective assistance that the Fourth Circuit has already found,"
Pet. at 10, such that cause and prejudice for the procedural default of the three claims urged on
the belated appeal was established. However, such an argument flies in the face of the well
established federal principle that exhaustion is accomplished only when both the constitutional
violation and the facts underlying the claim are first presented to the state courts for their review.
Duncan, 513 U.S. at 364. That the Fourth Circuit found ineffective assistance based on the fact
that counsel failed to consult with petitioner about an appeal cannot be extrapolated into a
finding that it also found ineffective assistance based on the separate fact that counsel failed to
interpose objections at sentencing. Mallory. 27 F.3d at 995. Thus, petitioner's contention that
counsel provided ineffective assistance at sentencing by failing to object and thus to preserve the
claims raised on the belated appeal remains unexhausted, and as it is unexhausted it may not
furnish the cause to excuse the default of the claims.
Petitioner also urges this Court to find that the Virginia courts erred on the belated appeal
in failing to apply the "ends of justice" exception to Rule SA: 18 to address his claims on the
merits. Whether or not a state court appropriately applied an exception to a state procedural rule
is not an issue to be decided on federal habeas review. Lawrence v. Branker, 517 F.3d 700, 717
(4th Cir. 2008) (allegations that a state court incorrectly applied state law fail to state a basis for
federal habeas corpus relief). The Fourth Circuit recognizes that where, as here, a federal claim
of ineffective assistance of counsel is predicated on an issue unique to state law, the federal court
should be "especially deferential" to the state postconviction court's interpretation of state law.
Richardson v. Branker, 668 F.3d 128, 141 (4th Cir. 2012). "Indeed, we have held that '[i]t is
beyond the mandate of federal habeas courts [] to correct the interpretation by state courts of a
15

state's own laws." Shame v. Bell, 593 F.3d 372 (4th Cir. 2010). That the issue involves a
matter of state procedural law rather than substantive law makes no difference. As the Fourth
Circuit has stated:
Because the Virginia Supreme Court's application ofRule 5: 17(a)(l)
was an "adequate and independent state ground," federal habeas
review ofO'Dell' s defaulted claims, which are meritless in any event,
is barred absent cause and prejudice. That the default was only
procedural does nothing to insulate the claims from this bar. As
Justice O'Connor explained for the Court in Coleman [v. Thompson,
501 u.s. 722, 750 (1991)],
we [have repeatedly] emphasized the important
interests served by state procedural rules at every
stage of the judicial process and the harm to the States
that results when federal courts ignore these rules: " .. .
'Each state's complement of procedural rules .. .
channel[s], to the extent possible, the resolution of
various types of questions to the stage of judicial
process at which they can be resolved most fairly and
efficiently."
O'Dell v. Netherland, 95 F.3d 1214, 1244-45 (4th Cir. 1996), aff'd, 521 U.S. 151 (1997)
(quoting Murray, 477 U.S. at 490-91).
A limited exception to the rule that a federal habeas court may not entertain a claim that
rests on state law exists where the error complained of has impugned the fundamental fairness of
the trial. Stockton v. Virginia, 852 F.2d 740,748 (4th Cir. 1988), cert. denied, 489 U.S. 1071
(1989). The Supreme Court has "defined ... the category of infractions that violate 'fundamental
fairness' very narrowly." Dowling v. United States, 493 U.S. 342, 352 (1990). It holds that due
process is violated "only when the error complained of is so gross, conspicuously prejudicial, or
otherwise of such magnitude that it fatally infects the trial." McCafferty v. Leapley, 944 F.2d
445,452 (8th Cir. 1991), cert. denied, 503 U.S. 911 (1992). It is apparent that this case does not
16

fall within that category. That is so because in determining that the ends of justice exception to
Rule 5A:18 was not applicable in Lambert's case, the Virginia Court of Appeals discussed the
merits of his claims. Specifically, as to Lambert's first claim, the appellate court observed that
"the trial court did not erroneously interpose a modified Alford plea nor did it improperly
participate in plea discussions in violation of the Rules." Lambert v. Commonwealth, R. No.
2417-10-4, slip op. at 5. As to the second claim, it noted that "the trial court fully advised
appellant of his rights and extensively questioned him with respect to his understanding of the
consequences of entering an Alford plea," and Lambert agreed that he was entering an Alford
plea due to the evidence against him, that he had consulted extensively with his attorney, and he
was entering the plea freely and voluntarily. Id., slip op. at 6. The court also stated that the
assertion that the prosecution had violated the plea agreement was "without merit" because "the
prosecution had not bound itself to make a recommendation or to avoid making any
recommendation." .14:., slip op. at 7-8. Lastly, the court found "no basis to invoke the ends of
justice" as to the third claim because "[t]here is simply no indication that the trial court forfeited
its own sentencing discretion to follow the request of the victim's daughter" that Lambert receive
the maximum sentence. .14:., slip op. at 9. 6
Under these circumstances, two conclusions appear clear. First, Lambert cannot have
suffered any prejudice when the Virginia courts found that the ends of justice exception to Rule
SA: 18 did not apply to his unpreserved claims, because it is apparent from the foregoing

6

Because the Supreme Court of Virginia refused further review of this order without explanation,
the reasoning of the Court of Appeals is imputed to it. See Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991).
17

discussion that had the Virginia appellate court applied the exception to reach the claims on the
merits, Lambert would have received no relief. Second, it also appears from the reasons stated
that by affording appropriate deference to the Virginia courts' application of Virginia procedural
rules and declining to reach the merits of the defaulted claims, no violation of Lambert·s right to
fundamental due process will occur. Thus, as the Virginia courts' denial of relief on petitioner's
claims was neither contrary to, nor an unreasonable application of, clearly established federal
law, nor was it based on an umeasonable determination of the facts, the same result is compelled
here, and the petition will be dismissed. Williams, 529 U.S. at 412-1 3.
V. Conclusion

For the forego ing reasons, respondent 's Motion to Dismiss this petition will be granted,
and the petition will be di smissed with prejudice. An appropriate Order and Judgment shall
ISSUe.

,,).

Entered this ).. J.

day of

;rf~

2016.

Anthony J. T
rer.ga
United States Distr' t

Alexandria, Virginia

18