Gonzales v. Manis
MEMORANDUM OPINION. Signed by District Judge Claude M. Hilton on 02/13/2017. (c/s to Pro Se Petitioner)(jlan)
FEB 13 ori7
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
U.S. D'-Tln.CT COJRT _
Francis M. Gonzales,
This Matter comes before the Court on respondent's Motion to Dismiss this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed pro ^ by Francis M.
Gonzales, a Virginia inmate. Petitioner challenges the constitutionality of his conviction of
abduction entered upon a plea of guilty pursuant to North Carolina v. Alford. 400 U.S. 25 (1970)
in the Circuit Court of Arlington County.
On May 21,2012, Gonzales was indicted for abduction with intent to defile, subsequent
offense. Case No. CR-740. He entered a plea of not guilty and requested a jury trial. After a
two-day trial, the jury notified the judge during deliberations that it was unable to reach a verdict.
Follov^ng a lunch recess, the parties informed the court that they had reached a plea agreement.
The Commonwealth amended the indictment to the lesser-included offense of simple abduction,
and petitioner entered an Alford plea to the reduced charge. The judge ordered a presentence
report and set a date for sentencing.
At sentencing, during his right to allocution, petitioner statedthat his counsel had failed
adequately to cross-examine the victim and a detective, that the plea agreement was unexpected,
and that his decision to accept the plea was improper. He then requested to withdraw the Alford
plea and to have a new trial. The judge asked, "Is that everything, Mr. Gonzales?" and petitioner
replied, "Yes." Defense counsel stated that he was unaware that petitioner was going to seek to
withdraw the plea and requested a continuance, and the judge responded, "I'm certainly willing
to consider the motion."
After the trial judge reviewed the events of the trial and the plea hearing, petitioner's
motion to withdraw his Alford plea was denied. The court noted that the defense had been ready
for trial, that defense counsel's cross-examination of the victim was "superlative," and that the
case went exceptionally well for petitioner. The judge also stated that petitioner was not
"shortchanged" in any way and that she had questioned petitioner at length about his decision to
change his not guilty plea to an Alford plea. Lastly, the judge noted that petitioner had heard all
ofthe prosecutions's evidence and thus had all necessary information when he decided to change
his plea, and that he had received exceptional representation at trial. The court then denied both
the motion to withdraw the plea and the motion for a continuance.
Commonwealth. R. No. 0793-13-4 (Va. Ct. App. Dec. 20, 2013), slip op. at 1-2. Petitioner was
sentenced to ten years incarceration. Pet. at 1.
Petitioner took a direct appeal, raising the following claims:
The trial court erred in denying his request to
withdraw the guilty plea because the request was
made in good faith and premised upon a reasonable
basis for a substantive defense.
The trial court abused its discretion in denying his
motion for a continuance because it prejudiced his
ability to prepare a proper motion to withdraw the
plea and ensured he would not have a trial.
The Court of Appeals denied the petition for appeal on December 20,2013. Id Petitioner
sought second-tier review by the Supreme Court of Virginia, and his petition was refused on
November 14,2014. Gonzales v. Commonwealth. R. No. 140554 (Va. Nov. 14,2014). The
Court denied petitioner's motion for rehearing on January 15,2015.
Petitioner filed no application for state habeas corpus relief
Instead, petitioner turned to the federal forum and timely filed this petition for a writ of
habeas corpuspursuantto § 2254 on November 5,2015.' Petitioner raisesthe following claims:
The state courts erred in rejecting his motion to
withdraw his guilty plea.
His right to the assistance of counsel at sentencing
was violated because he was not allowed to confer
with his attorney.
The state courts erred in denying his motion for
continuance at sentencing and in finding that he did
not suffer prejudice as a result.
The Court of Appeals erred in making the factual
determination that his motion to withdraw the plea
was not made in good faith when the trial court had
not considered the issue.
He was denied his constitutional right to call for and
to secure evidence and to present a defense when the
trial court denied his motion for a continuance.
Respondent filed a Rule 5 Answer and a Motion to Dismiss the petition along with a
'For federal purposes, a pleading submitted by an incarcerated litigant is deemed filed whenthe
pleading is delivered to prison officials for mailing. Houston v. Lack. 487 U.S. 266 (1988). Here,
petitioner executed thepetition onNovember 5,2015,Pet.at 15,andit wasdate-stamped asreceived
by the Clerk on November 17,2015. Pet. at 1.
supportingbrief on March 17,2016, (Dkt. No. 8-10) Petitioner was supplied with the notice
required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and after
receiving an extension of time he filed a Brief in Opposition to Motion to Dismiss on April 13,
2016. (Dkt. No. 17) On April 27,2016, respondent filed a Motion for Leave to File a
Supplemental Pleading and a supplemental Motion to Dismiss with a supporting brief, and
provided petitioner with a supplemental Roseboro notice. (Dkt. No. 18-22) Petitioner has
submitted two briefs in opposition to the supplemental response, as well as a Motion to Grant a
New Trial. (Dkt. No. 23-25) Accordingly, the matter is now ripe for disposition.
II. Non-Cognizable Claims
All of the claims petitioner raises in this petition are not federally cognizable for the
following various reasons:
A. Claims 1. 3 and 5
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 Green 481 U.S. 129 (1987); Rose
V. Lundv. 455 U.S. 509 (1982). To comply with the exhaustion requirement, a petitioner "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, e.g.. Duncan v. Henrv. 513
U.S. 364 (1995). A federal habeas claim is exhausted only when both the same legal argimient
and the same supporting facts previously were presented to and ruled on by the highest state
court. Anderson v. Harless. 459 U.S. 4, 6-7 (1982): see Pruett v. Thompson. 771 F. Supp. 1428,
1436 (E.D. Va. 1991),affd. 996 F.2d 1560(4th Cir. 1993) (exhaustionis satisfied only where
the "essential legal theories and factual allegations advanced in federal court... [are] the same as
those advanced at least once to the highest state court.").
In Claims 1 and 3 of this federal petition, petitioner argues that the trial court abused its
discretion is denyinghis motions to withdrawto withdrawthe guilty plea and for a continuance.
These claims were exhausted on direct appeal. Nonetheless, they are not cognizable predicates
for § 2254 relief because they were expressed both in the Virginia courts and here exclusively as
errors of state law. A federal writ of habeas corpus may issue only where a prisoner is "in
custody in violation of the Constitution or laws or treaties of the United States." Title 28 U.S.C. §
2254(a); s^ Wright v. Aneelone. 151 F.3d 151,157 (4th Cir. 1998). Where a petitioner alleges
that a state court incorrectly applied state law, the claim fails to state a basis for federal habeas
corpus relief See Lawrence v. Branker. 517 F.3d 700,717 (4th Cir. 2008); Wright. 151 F.3d at
159. As Claims 1 and 3 of this petition assert errors only of state law and were exhausted on
direct appeal as such, they cannot form the basis for federal habeas corpus relief
In claim 5 of this petition, petitioner asserts that he was denied his constitutional right to
call for and to secure evidence and to present a defense when the trial court denied his motion for
a continuance. However, while the claim is expressed here as an error of constitutional
dimension, it too was presented and adjudicated on direct appeal solely as a violation of state
law. Gonzales v. Commonwealth. R. No. 0793-13-4. slip op. at 5-6. Therefore, since the
"essential legal theory" advanced here is not the same as that advanced in the Virginia courts, the
constitutional claim petitioner presents here remains unexhausted. Pruett. 771 F. Supp. at 1436.
In its Brief in Support of Supplemental Motion to Dismiss, the Commonwealth argues
that even if it were assumed that Claim 5 was presentedas a federal question on direct appeal, it
still would warrant no relief because petitioner failed to establish prejudice. (Dkt. No. 21 at 2) In
rejecting the claim, the Court of Appeals found:
There were approximately three months between the time appellant
entered his Alford plea and the sentencing hearing. Appellant did not
inform his counsel that he wanted to withdraw his Alford plea, and
his counsel was surprised when appellant did so during his allocution.
Based on its review of the circumstances in this case, the trial court
ultimately determined that no further information was necessary to
properly decide appellant's motion to withdraw his plea and thus
denied appellant's motion for a continuance. The trial court did not
abuse its discretion in denying appellant's motion for a continuance
in order to file a written motion to withdraw his plea, and appellant
has failed to demonstrate any prejudice that occurred as a result ofthe
trial court's denial of his motion for a continuance.
Gonzales v. Commonwealth. R. No. 0793-13-4, slip op. at 5-6, Becausethe Supreme Court of
Virginia refused further review without explanation, the foregoing reasoning is imputed to it.
See Ylstv. Nunnemaker. 501 U.S. 797, 803 (1991).
Under these circumstances, respondent is correct that even if Claim 5 were viewed as
having been exhausted on direct appeal, petitioner would be entitled to no federal relief. Trial
courts have broad discretion in determining whether continuances should be granted, and only an
imreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for
delay" is constitutionally impermissible. Morris v. Slappv. 461 U.S. 1,11-12 (1983) (quoting
Unear v. Sarafite. 376 U.S. 575, 589 (1964)). Further, even if a trial court abuses its discretion in
denying a continuance, a § 2254 habeas petitionermust show actual prejudiceto obtain relief
See Godov v. Spearman. 834 F.3d 1078 (9th Cir. 2016). Here, for the reasons stated by Court of
Appeals, petitionercannot show that the denial of his motion for continuance caused him to
sufferanyprejudice, so even if Claim5 had been properly exhausted as a constitutional claim it
would not have resulted in federal relief
B. Claim 2
In Claim 2, petitioner argues that he was denied his Sixth Amendment right to counsel at
sentencing. Pet. at 7. While this argument presents an issue of constitutional dimension,
petitioner concedes that the claim has never been raised in the state forum. Pet. at 8.
Accordingly, at this juncture the claim is procedurally defaulted from federal review.
"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 if the
petitioner attempted to present it to the state court." Baker v. Corcoran. 220 F.3d 276,288 (4th
Cir. 2000). "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 at 288 (citing Grav v. Netherland. 518 U.S. 152,161 (1996)).
Thus, an unexhausted claim that would be defaulted if presented in state court is deemed to be
simultaneously exhausted and procedurally barred from federal review. Bassette v. Thompson.
915F.2d932(4th Cir. 1990).
Although petitioner has filed no state habeas corpus application, he is now precluded
from doing so by Virginia's habeas corpus statute of limitations, Va. Code § 8.01-654(A)(2).
That provision allows a prisoner the later of two years from the date of his final judgment of
conviction or one year from the conclusion of his state appellate proceedings to file an
application for habeas relief. Here, petitioner'sjudgment of conviction was entered on April 2,
2013, more than two years ago, and his direct appeal concludedwhen the Virginia Supreme
Court deniedrehearing of its refusal of his petition for appeal on January 15,2015, more than
one year ago. Therefore, petitioner's returnto the state forum with his unexhausted Claim 2 is
precluded by Va. Code § 8.01-654(A)(2). That reason has been held to be an adequate and
independent state law ground preventing federal habeas reviewof 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). Therefore,
Claim 2 of this petition is simultaneously exhausted and procedurally defaulted. Bassette. 915
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 of the claim. S^ Coleman v. Thompson. 501 U.S. 722,
753-54 (1991); Clozza v. Murrav. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton v. Muncv. 845
F.2d 1238,1241-42 (4th Cir. 1988). Importantly, a court need not consider the issue of prejudice
in the absence of cause. S^ Komahrens v. Evatt. 66 F.3d 1350, 1359 (4th Cir. 1995), cert,
denied. 517 U.S. 1171 (1996).
Here, petitioner states that Claim 2 was not raised by his appellate counsel. Pet. at 8. If
that statement is liberally construed as an argument that the procedural default of Claim 2 was
caused by ineffective assistance of counsel, it fails to overcome the default, because 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
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 ofprocedural 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 fMurrav v.] Carrier. 477 U.S.  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 carmot use ineffective assistance of counsel to
demonstrate cause for the failure to raise the use of perjured
Swisher V. True. 325 F.3d 225, 231 (4th Cir.), cert, denied. 539 U.S. 971 (2003).
Here, the claim of ineffective appellate assistance upon which petitioner attempts to rely
as the basis for his cause-and-prejudice argument has not been exhausted in the state forum.
Moreover, because he is now time-barred from filing an application for state habeas corpus relief,
as discussed above, a claim of ineffective assistance by appellate counsel is no longer capable of
exhaustion and hence is itself procedurally defaulted. Therefore, petitioner fails to establish
cause and prejudice for his default of Claim 2, and that claim is barred from federal
C. Claim 4
In petitioner's fourth claim, he argues that the Court of Appeals erred in making the
factual determination that his motion to withdraw the plea was not made in good faith when the
trial court had not considered the issue. This argument was asserted as a basis for review of the
Court of Appeals' decision in petitioner's Petition for Appeal to the Supreme Court of Virginia
filed on April 9,2014. Even if the Supreme Court's unexplained refusal of the Petition for
Appeal were deemed to have exhausted the claim for purposes of federal review, the claim was
presented to the Virginia courts exclusively as an error of state law; no federal constitutional
principles were argued or even mentioned in support of the argument. Pet. for App. at 15-17. As
Claim 4 thus was exhausted at best only as a violation of state law, it cannot form the basis for
federal habeas corpus relief. Lawrence. 517 F.3d at 717; Wright. 151 F.3d at 159.
For the foregoing reasons, respondent's Motion to Dismiss, Motion to File Supplemental
Pleading, and supplemental Motion to Dismiss will be granted, and the petition will be dismissed
with prejudice. Petitioner's Motion for New Trial will be denied. An appropriate Order and
judgment shall issue.
Entered this j3^day of
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