Manbegirot v. Vargo

Filing 23

MEMORANDUM OPINION re Motion to Dismiss. Signed by District Judge T. S. Ellis, III on 10/21/16. Copy mailed: yes(klau, )

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

Sirak Manbegirot,
Petitioner,

I;16cv300 (TSE/JFA)

V.

Marie Vargo,
Respondent.
MEMORANDUM OPINION

Sirak Manbegirot, a Virginia inmate proceeding ^

x, has filed a petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction
in the Arlington County Circuit Court of first degree murder. On July 6,2016, respondent filed a
Rule 5 Answer and a Motion to Dismiss with a supporting briefand exhibits. Petitioner was

given the opportunity to file responsive materials pursuant to 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 reply to

the Motion to Dismiss on August 30,2016. Accordingly, this matter is now ripe for disposition.
For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition

must be dismissed, with prejudice.
I. Background

On May 19,2010, petitioner was convicted of first degree murder after a jury found him

guilty in the death of his wife by strangulation and blunt force trauma. (T. 3/11/2009 at 50 et
sea.: T. 12/8/2009 at 169). The court imposed the jury's recommended sentence of forty (40)
years incarceration. Case No. CR09-316.

Petitioner took a direct appeal to the Court of Appeals of Virginia, raising claims of trial

court error which are not pertinent here. The court denied the petition for appeal on January 19,
2011. Manbeeirot v. Commonwealth. R. No. 1326-10-4 (Va. Ct. App. Jan. 13,2011). A three-

judge panel reached the same result on May 18,2011. Manbeeirot v. Commonwealth. R. No.
1326-10-4 (Va. Ct. App. May 18,2011). The Supreme Court of Virginia refused a petition for
further appeal on September 30,2011, Manbeeirot v. Commonwealth. R. No. 111142 (Va. Sept.
30,2011), and denied a motion for rehearing on January 20,2012.

In January, 2013, petitioner filed an application for a writ of habeas corpus in the trial
court, arguing that he received ineffective assistance of counsel because his attorney:
1.

Failed adequately to explain petitioner's guilty plea
options and advised petitioner to go to trial after
petitioner expressed his guilt and desire to plead
guilty to second degree murder.

2.

Failed to explain petitioner's competency evaluation
by Dr. Kerman and to subpoena the doctor to testify.

3.

Failed adequately to explain the nature of the plea
agreement to second degree murder when petitioner
wanted to plead guilty; and

4.

Failed adequately to argue that petitioner's rights
under the Vienna Convention were violated.

The trial court addressed each of these claims and denied the petition by Order dated February

26,2015. On December 23,2015, the Supreme Court of Virginia refused a petition for appeal
of the trial court's February 26,2015 judgment. Manbeeirot v. Warden. Sussex II State Prison. R.
No. 150934 (Va. Dec. 23,2015).

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

habeas corpus reliefpursuant to 28 U.S.C. § 2254 on February 11,2016.' In it, he reiterates the
same claims of ineffective assistance of counsel he exhausted in the state habeas proceeding. See

O'Sullivan v. Boerckel. 526 U.S. 838,845 (1999) (exhaustion required by § 2254(b) is

accomplished where a state prisoner "give[s] the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established appellate review
process."). As noted above, respondent has filed a Motion to Dismiss the petition wath a
supporting brief, and petitioner has filed a reply. Dkt. No. 13-15,22. For the reasons that

follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed,
with prejudice.
II. Standard of Review

When a state court has addressed the merits of a claim raised in a federal habeas petition,
a federal court may not grant the petition based on the 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). 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. Tavlor. 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 of law or if the state court
decides a case differently than [the United States Supreme] Court has on a set of materially

'For federal purposes, a pleading submitted byan incarcerated litigantis deemed filed when it is
delivered to prison officials for mailing. Houston v. Lack. 487 U.S. 266 (1988): Lewis v. City of
Rirhmnnd Police Deo't. 947 F.2d 733 (4th Cir. 1991). Petitioner in this case certified that he placed
in the prison mailing system on February 11, 2016, Pet. at 7, and it was received by the Clerk on
March 9,2016. Pet. at 1.

indistinguishablefacts." 14 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

principlefrom [the Supreme] Court's decisionsbut unreasonably applies that principleto the
facts of the prisoner's case." Id. Importantly, this standard of reasonableness is an objective one.
Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court

decision that previously addressed the claims rather than the petitioner's free-standing claims
themselves." McLee v. Aneelone. 967 F.Supp. 152, 156 (E.D. Va. IQg?'). appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
III. Analysis

In all of his federal claims, petitioner argues that his trial counsel provided ineffective
assistance for various reasons. 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^ TheAEDPA
standard of review and the Strickland standard are dual and overlapping and are to be applied

simultaneously rather than sequentially. Harrington. 526 U.S. at 105. This results in a very high
burden for a petitioner to overcome, because these standards are each "highly deferential" to the
state court's adjudication, and "when the two apply in tandem, review is doubly so." Id

To prove that counsel's performance was deficient, a petitionermust show that

"counsel's representation fell belowan objective standard of reasonableness" id. at 688, and that
the "acts and omissions" of counsel were, in light ofall the circumstances, "outside the range of

professionally competent assistance." Id at 690. Such a determination "mustbe highly
deferential," witha "strong presumption thatcounsel's conduct falls within the wide range of

reasonable professional assistance." Id at 689; see also. Burket v. Aneelone. 208 F.3d 172,189

(4th Cir. 2000) (reviewing court "must be highly deferential in scrutinizing [counsel's]

performance and 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 would have
been different." Strickland. 466 U.S. at 694. "A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id; accord. Lovitt v. True. 403 F.3d 171,181 (4th

Cir. 2005). The burden is on the petitioner to establish not merely that counsel's errors created
the possibility of prejudice, but rather "that they worked to his actual and substantial
disadvantage, 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 ofan ineffective assistance claim," and a
successful petition "must show both deficient performance and prejudice." Spencer. 18 F.3d at
233. Therefore, a court need not review the reasonableness of counsel's performance if a

petitioner fails to show prejudice. Ouesinberrv v. Tavlore. 162 F.3d 273,278 (4th Cir. 1998).

In his first claim, petition alleges that counsel provided ineffective assistance by failing

adequately to explain petitioner's options withrespect to a guilty plea and byadvising petitioner
to go to trial even afterpetitioner acknowledged his guiltand insisted that he wished to plead
guiltyto seconddegree murder. Whenpetitioner made this same argiunent in the state habeas

proceeding, the trial court found it to be without merit,^ as follows:
In claim I, Manbegirot asserts that counsel was ineffective for failing
to adequately explain petitioner's guilty plea options and instead
advised on going to trial after petitioner expressed his guilt and
insistence on pleading guilty to second-degree murder. This claim is
vnthout merit. Counsel advised the petitioner of his pleas options
[sic] throughout his representation. (Resp. Ex. 1, Affidavit of
Mathew [sic] T. Foley, Esq. at 1-2). While counsel agrees that the
petitioner readily acknowledged that he killed the victim, however, he
continually said that it was because the victim had pulled a knife on
the petitioner. There is no evidence that petitioner 'insisted' on
pleading guilty. Indeed, trial counsel avers that an offer to plead
guilty to first-degree murder for a sentence of 30 years was
specifically rejected by Manbegirot before the trial started.
Manbegirot entered a plea of not guilty because 'I haven't done it
willingly.' (Tr. 12/7/2009 at 4). Consequently, Manbegirot has failed
to establish either deficient performance or prejudice as required by
Strickland, and claim I must fail.

Manbegirot v. Warden. Order Feb. 27,2015 at 4.

The foregoing holding reflects a reasonable determination of the facts. Public defender
Matthew T. Foley became the lead attorney in petitioner's case at the end of October, 2009, and

he supplied an affidavit in the state habeas proceeding in which he stated that he met with
Manbegirot "on multiple occasions to discuss his plea options and prepare for trial." Counsel

explainedthat Manbegirot "readily admitted" to both counsel and the police that he had killed his
vsdfe, but he maintained that he did so because she attacked him with a knife following a heated

argument in which she ordered him to leave their apartment. Counsel explained that if these

facts were provento the jury's satisfaction, they couldprovide an acquittal based on self-defense
or petitioner's defense of his son, or they might lead to a conviction of manslaughter basedon the
^Because the trial court's order was the last reasoned state court decision on the claims at issue

here,its reasoning is imputed totheSupreme CourtofVirginia, which refused further appeal without
explanation. See Ylst v. Nunnemaker. 501 U.S. 797,803 (1991).

heat of passion. On the other hand, counsel informed petitioner that the fact that the decedent was

strangled with an electrical cord after being struck with a dumbbell could persuade the jury that
the act was done with malice or premeditation. Foley Aff., Claim 1, If 2.
Mr. Foley did not recall the Commonwealth offering a specific plea agreement to
Manbegirot after he became lead counsel; rather, Manbegirot would have been able only to

plead straight-up to the presumptive second degree murder charge in the indictment, which
would have carried a sentence of from 5 to 40 years incarceration. Manbegirot declined. On the
morning oftrial, the Commonwealth offered a plea agreement of thirty years incarceration on a

plea ofguilty to first degree murder. Counsel reviewed this offer with Manbegirot in the lockup
with the assistance of an interpreter, and Manbegirot again declined. Id., ^ 3. When trial

commenced Manbegirot entered a plea of not guilty, stating "I haven't done it [the killing]

willingly." Tr. 12/7/2009 at 4. He testified during the trial that the decedent previously had
harmed him and their infant son, and that she brandished a knife at him on the day she died.
Foley Aff., Claim 1,

3-4.

Under these circumstances, the state court's rejection of petitioner's first claim was

factually reasonable. In essence, the state court on habeas review credited counsel's statements
in his affidavit that he advised petitioner regarding his plea options and did not credit petitioner's
contention that he "insisted" on entering a guilty plea. It is not the role of a federal habeas court

to review such credibility determinations. United States v. Hobbs. 136 F.3d 384,391 n.l 1 (4th

Cir. 1998); United States v. Reavis. 48 F.3d 763,771 (4th Cir. 1995); United States v. Saunders.
886 F.2d 56,60 (4th Cir. 1989). Instead, the federal court is bound by the credibility
determinations of the state court trier of fact. United States v. Arrineton. 719 F.2d 701,704 (4th

Cir. 1983). Here, then, when the appropriate deference is paid to the state court's implicit
credibility findings, petitioner's argument that counsel provided ineffective assistance by failing
to inform petitioner of his plea possibilities and disregarded petitioner's stated desire to plead

guilty is without merit. Accordingly, the state court's resolution of Claim I must not be disturbed.
Williams. 529 U.S. at 412-13.

In his second claim, Manbegirot contends that counsel was ineffective for failing to

explain to the jury the competency evaluation of the petitioner performed by Dr. Kerman and for
failing to subpoena the doctor to testify. The state habeas court rejected this argument for the
following reasons:

In claim II, Manbegirot alleges that counsel was ineffective for failing
to explain to the jury petitioner's competency examination done by
Fred M. Kerman, Ph. D., or to subpoena him to testify. This claim is
without merit. The Virginia Code provides that the competency of a
defendant to stand trial is a determination made by the trial court, not
a jury. Va. Code § 19.2-169.1(E), Consequently, the doctor's
evaluation of the petitioner for competency to stand trial was not
relevant to any issue before the jury and would not have been
admissible. Counsel is not ineffective for failing to make a futile
objection. See Correll v. Commonwealth. 232 Va. 454, 470, 352
S.E.2d 352, 361 (1987) (holding counsel had no duty to object to
admission of presentence report because it was admissible). As a
result, Manbegirot has failed to establish either deficient performance
or prejudice as required by Strickland, and claim II must fail.
Manbegirot v. Warden. Order Feb. 27,2015 at 4 - 5.

For the reasons which are clearly explained in its Order, the state habeas court's denial of

relief on Claim II was both factually reasonable and m accord with Strickland. Since Virginia

law provides that a competency determination is withinthe purview of the court ratherthe jury,
any attemptby counsel to introduce Dr. Kerman's evaluation at trial properly would have been

denied as irrelevant. Since the law is clear that counsel is not ineffective for failing to file
frivolous motions, Moodv v. PolL 408 F.3d 141,151 (4th Cir. 2005), the state court's denial of

relief on this claim was squarely in line with applicable federal authorities, and the same result
must obtain here.

Williams. 529 U.S. at 412-13.

In his third claim, Manbegirot faults counsel for failing to explain the nature of the plea

agreement to second degree murder when petitioner wanted to plead guilty. The state habeas
court rejected this argument on the following holding:
In claim III, Manbegirot alleges that counsel was ineffective for
failing to adequately explain the nature of the plea agreement to
second-degree murder when the petitioner wanted to plead guilty.
This claim is without merit. On July 8, 2009, the petitioner and
counsel appeared in the trial court to attempt to enter a guilty plea to
a second-degree murder indictment. Counsel made an uncontested
proffer that the petitioner could not 'process what is necessary for him
to process in order for him to enter a plea and get through a colloquy
with this Court or go before a jury.' (Tr. 7/8/2009 at 4). Counsel
further proffered that 'I will state for the record that I have explained
to him in great detail what an Alford plea means, and he clearly
doesn't understand.' (Tr. 7/7/2009 at 16). The trial court also
expressed its beliefthat the defendant was malingering, saying' Well,
I think the defendant is like the fox in the hen house.' (Tr. 7/8/2009
at 12). There is no evidence, and the petitioner has failed to proffer,
that counsel could have done any more than what was done to educate
the defendant prior to July 8, 2009. Manbegirot's unsupported
conjecture is inadequate. This failure to proffer alone is fatal to his
claim. Muhammad v. Warden. 274 Va. 3, 19, 646 S.E.2d 182, 195
(20071 cf Beaver v. Thompson. 93 F.3d 1186,1195 (4th Cir. 1996)

("an allegation of inadequate investigation does not warrant habeas
reliefabsent a proffer ofwhat favorable evidence or testimony would
have been produced.").Seealso Bassettev. Thompson.915 F.2d932,
940-41 (4th Cir. 1990)(petitioner must allege "what an adequate
investigation would have revealed."). Moreover, any alleged
prejudice is speculative. Manbegirot was to plead guilty to seconddegree murder with no agreement as to sentencing. Second-degree
murder carries a maximum of40 years' incarceration and Manbegirot
received a 40 year sentence from the jury for first-degree murder.

The petitioner cannot establish that he would have received less time
had he pled to second-degree murder. As a result, Manbegirot has
failed to establish either deficient performance or prejudice as

required by Strickland and claim III must fail.
Manbegirot v. Warden. Order Feb. 27,2015 at 5-6.

The foregoing holding was squarely in line with the settled federal principle that a
petitioner who claims that counsel rendered ineffective assistance by failing to investigate

properlycannot succeed without proffering what favorable evidencea more thorough
investigation would have revealed. Bassette. 915 F.2d at 940-41. Here, where Manbegirot has
failed to proffer what information counsel failed to impart to him regarding the advisability of
entering a guilty plea, he has fallen short of establishing that counsel's performance was deficient

as required by Strickland. In addition, as the state court observed, petitioner also fails to satisfy
the prejudice prong of the Strickland analysis, because had he pleaded guilty to second degree
murder he still could have received the same forty-year sentence he is currently serving pursuant

to the jury's verdict. Thus, any prejudice stemming from counsel's alleged shortcoming is no
more than speculative and is insufficient to support a claim of ineffective assistance. Washington
V. United States. 2014 WL 11486912 at *2 (E.D.N.C. Mar. 31,2014) (where petitioner could

only speculate as to what an officer's personnel file night have revealed had counsel subpoenaed
it, he failed to allege a "reasonable probability" that the outcome of his trial was affected by
counsel's allegedly deficient performance). Because the state court's rejection of petitioner's

present claim was neither contrary to clearlyestablished federal law nor based on an
unreasonable determination of the facts, the same result is compelled here. See Williams. 529
U.S. at 412-13.

10

In his fourth claim, petitioner asserts that counsel rendered ineffective assistance by

failing to argue that petitioner's rights under the Vienna Convention were violated. The state
habeas court found no merit to this contention, as follows:

In claim FV, Manbegirot alleges that counsel was ineffective for

failing to argue his ri^ts underthe ViennaConvention were violated.
This claim is without merit Initially, Manbegirot fails to state with
any specificity what arguments, and in what context, counsel should
have made. Also, Manbegirot has failed to allege any prejudice.
These failures are fatal to his claim. See Strickland. 466 U.S. at 693,
687 (ineffective assistance of counsel claims subject to requirement
that defendant affirmatively prove deficient performance and
resulting prejudice); see also Muhammad. 274 Va. at 19,646 S.E. 2d
at 195 (finding petitioner's failure to 'identify with specificity any act
or omission of counsel which was objectively unreasonable' and 'to
demonstrate how these failures were prejudicial' fatal to Strickland
claim). Moreover, the claims are without merit.

The Supreme Court of the United States has said:
The violation ofthe right to consular notification... is
at best remotely connected to the gathering of
evidence. Article 36 [of the Vienna Convention] has
nothing whatsoever to do with searches or
interrogations. Indeed, Article 36 does not guarantee
defendants any assistance at all. The provision
secures only a right of foreign nationals to have their
consulate informed oftheir arrest or detention - not to

have their consulate mtervene, or to have any law
enforcement authorities cease their investigation

pending any such notice or intervention.
Sanchez-Llamas v. Oregon. 548 U.S. 331,349 (2006). In addition,
the petitioner also relies on LeGrand Case (F. R. G. v U.S.V 2001
I.C.J. 466 (Judgment ofJune 27) (LeGrand). However, the Supreme
Court of the United States has held:

Nothing in the structure or purpose ofthe ICJ suggests
that its interpretations were intended to be conclusive
on our courts. The ICJ's decisions have 'no binding
force except between the parties and in respect ofthat

11

particular case.' Statute ofthe International Court of
Justice, Art. 59, 59 Stat. 1062, T. S. No. 993 (1945)
(emphasis added). Any interpretation of law the ICJ
renders in the course of resolving particular disputes
is thus not binding precedent even at to the ICJ itself;
there is accordingly little reason to think that such
interpretations were intended to be controlling on our
courts.

Sanchez-Llamas. 548 U.S. at 354-355. As the Convention offers no

right to consular intervention, any arguments by trial counsel would
have been futile. See Correll. 232 Va. at 470, 352 S.E. 2d at 361

(holding counsel had no duty to object to admission of presentence
report because it was admissible). In addition, there is no reason to
believe that had counsel made any arguments with respect to the
Vienna Convention, the trial court would have granted any relief.
Manbegirot has failed to establish either deficient performance or
prejudice as required by Strickland and claim IV must fail.
Manbeeirot v. Warden. Order Feb. 27,2015 at 6 - 7.

For the reasons thoroughly explained by the state court, it is readily apparent that
counsel's failure to make an argument based on petitioner's rights under the Vienna Convention
had no bearing whatever on the outcome of petitioner's trial. The omission of such an argument
thus satisfies neither prong of the Strickland analysis, and the state court's finding that counsel
did not thereby provide ineffective assistance was in full accord with applicable federal

principles. Accordingly, that result must be allowed to stand. Williams. 529 U.S. at 412-13.
rV. Conclusion

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

Entered this ^ day of

JO1)11//^

2016.

Alexandria, Virginia
T.S. Ellis, m

12

United States Disj ctJudge