Brown v. Clarke

Filing 24

MEMORANDUM OPINION. Signed by District Judge Liam O'Grady on 12/20/2016. (dvanm, )

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

Kevin Brown,
Petitioner,
V.

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l:16cv340(LO/JFA)

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Harold Clarke,
Respondent.

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MEMORANDUM OPINION

Kevin Brown, 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
several theft offenses in the Circuit Court of Stafford County. Before this Court is the

respondent's Motion to Dismiss the petition, as well as petitioner's Motion for Summary
Judgment.
I. Background

On December 22,2008, petitioner was convicted following a jury trial of one count each
of conspiracy to commit larceny, larceny with intent to sell or distribute, felony

shoplifting/concealment, and felony petit larceny. He received an aggregate sentence of forty-

four (44) years incarceration with twenty-four (24) years suspended, for a total active sentence of
twenty (20) years.

On direct appeal, counsel for petitioner moved for leave to withdraw pursuant to Anders

V. California. 386 U.S. 738 (1967), and suggested as arguable support for the appeal that the trial
court erred when it imposed an active sentence. In his pro se supplemental petition for appeal,

petitioner added claims that the trial courterred when it allowed an unsigned pawn slip into
evidence and that the evidence was insufficient to support the convictions. The Court of Appeals

denied the petition for appeal and granted counsel's motion to withdraw. Brown v.

Commonwealth. R. No. 0050-09-4 (Va. Ct. App. Oct. 21,2009). On November 30,2010, the
Supreme Court of Virginia refused a petition for appeal. Brown v. Commonwealth. R. No.
100887 (Va. Nov. 30,2010).

On January 17,2011, petitioner filed a pro ^ petition for a state writ of habeascorpus in
the Circuit Court of Stafford County, raising the following claims:
1.

He received ineffective assistance of counsel where

counsel's conduct so undermined the proper
functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.

2.

His rights to due process and a fair trial were violated
when the trial court admitted testimony about alleged
unrelated bad acts.

3.

The conviction of larceny with the intent to sell or
distribute is void where the record fails to show that

the grand jury returned an indictment for that offense.

4.

The trial court erred in failing to disqualify a juror
who was employed by the establishment that was the
victim of the crime.

5.

The trial court violated his rights to due process and
a fair trial when it allowed the introduction of

petitioner's prior sentences.
6.

His convictions of shoplifting/concealment and petit
larceny, third or subsequent offense violated the
double jeopardy prohibition.

Subsequently, counsel for petitioner entered the case, and attempted to amend the petition
to add several new claims, among which was the argument that habeas corpus relief was

warranted because the jury had not been instructed consistent with Fishback v. Commonwealth.
260 Va. 104, 532 S.E.2d 629 (2000) that parole had been abolished in Virginia. The Motion for

Leave to Amend was denied in an interlocutoryletter opinion on February 14,2014, and the

circuitcourt dismissed the petition in its entirety on November 10, 2014. Brown v. Warden.
Case No. CLl 1-62. Petitionerappealed that result, and the Supreme Court of Virginia dismissed
and denied the appeal on September 4,2015. Brown v. Clarke. R. No. 150073 (Va. Sept. 4,
2015).

Petitioner timely filed the instant federal petition on September 18,2015, raising the
following claims:

1.

His rights to due process and a fair trial were violated
when the trial court admitted testimony about alleged
unrelated bad acts.

2.

The trial court erred in failing to disqualify a juror
who was employed by the establishment that was the
victim of the crime.

3.

The trial court violated his rights to due process and
a fair trial when it allowed the introduction of

petitioner's prior sentences.

4.

The trial court erred when it did not instruct the jury
that parole was abolished in Virginia.

Respondent filed a Motion to Dismiss the petition along with a supporting brief on May
25,2016, and provided petitioner with the notice required by Roseboro v. Garrison. 528 F.2d 309
(4th Cir. 1975) and Local Rule 7K. Petitioner responded by filing a Motion for Summary

Judgment and a supporting brief. Accordingly, this matter is ripe for disposition.
II. Exhaustion

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 petitioner "must

give the state courtsone full opportunity to resolve any constitutional issues by invoking one
complete roundof 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 raisedin 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).

"A claim that has not been presented to the higheststate 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 ofthe defaulted claim." Id at 288 (citing Gray 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.

915 F.2d 932 (4th Cir. 1990). Here, respondent correctly acknowledges that petitioner's claims

are exhausted either because they were previously presented to the Supreme Court of Virginia or
because they would now be procedurally barred from consideration in the state forum.
III. Procedural Default

Claims 1 through 3 of this federal petition are procedurally defaulted from federal review.
If a state court finds, based on an adequate and independent state-law ground, that a claim is

procedurally defaulted from review, then the claim is not reviewable in federal habeas. See
Coleman V.Thompson. 501 U.S. 722, 729-30 (1991); Williams v. French. 146 F.3d 203, 208-09

(4th Cir. 1998) (internal citations omitted). A state procedural rule is "adequate" if it is

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

In Claim 1 of this petition, Brown argues that his rights to due process and a fair trial
were violated when the trial court admitted testimony about alleged unrelated bad acts. In Claim
2, he contends that the trial court erred in failing to disqualify a juror who was employed by the
establishment that was the victim of the crime. And in Claim 3, Brown asserts that the trial court

violated his rights to due process and a fair trial when it allowed the introduction of his prior
sentences. When Brown raised these claims of trial court error in his petition for habeas corpus

relief to the Stafford County Circuit Court, they were found to be defaulted under the rule of

Slavton V. Parriean. 215 Va. 27,205 S.E.2d 680 (1974), which held that a state habeas claim is
procedurally barred if the petitioner could have raised it on direct appeal but did not. Brown v.
Barksdale. Case No. CLl 1-62, Final Order at n. 1. The Fourth Circuit has held consistently that

"the procedural default rule set forth in Slavton constitutes an adequate and independent state law
ground for decision." Mu'min v. Pruett. 125 F.3d 192,196-97 (4th Cir. 1997). Then when

Brown appealed the Final Order denying his state habeas application, the Supreme Court of
Virginia found that the assignments of error as to these claims did not address the circuit court's
rulings and dismissed the claims pursuant to Rule 5:17(c)(l)(iii). Brown v. Clarke. R. No.

150073. Rule 5:17(c), which requires litigants to brief assignments of error or else risk waiver,
see Yeatts v. Anselone. 166 F.3d 255,264 (4th Cir. 1999), has been held on numerous occasions

to constitute an independent and adequate ground forrelief. See, e.g.. Hedrick v. True. 443 F.3d
342 (4th Cir. 2006); Mueller v. Anselone. 181 F.3d 557, 584 (4th Cir. 1999). Thus, Claims 1

through 3 of this petition are doubly defaulted, and as petitioner has made no showing of cause
and prejudice or a fundamental miscarriage of justice, the claims are procedurally barred from
federal consideration.
IV. Merits

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 standard. See Williams v. Tavlor. 529 U.S. 362,412-13 (2000). A state court's

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

indistinguishable facts." 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
principle from [the Supreme] Court's decisions but unreasonably applies that principle to 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. Anselone. 967 F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139

F.3d 891 (4th Cir. 1998) (table).

In Claim 4 of this petition. Brown argues that the trial court erred in failing to instruct the
jury that parole was abolished in Virginia effective January 1, 1995. To the extent that he argues
that this alleged omission violated the Supreme Court of Virginia's holding in Fishback. supra.
he states no claim for federal relief, because the Fishback rule is matter only of state law that will

not support a § 2254 claim. Moreover, even if petitioner's argument were liberally construed as
implicating a federal constitutional guarantee, he still is entitled to no relief. When the claim was
presented in the state habeas corpus proceeding, the circuit court held that "this contention is
without factual basis. Specifically, the record shows that the jury received this instruction in
sentencing. (See Instruction A, Sentencing Proceeding; Tr. 282). Accordingly, this claim would
also fail on its merits." Brown v. Barksdale. Case No. CLl 1-62, Final Order at 4-5. On appeal,
the Supreme Court of Virginia refused petitioner's assignment of this ruling as error. Brown v.
Clarke. R. No. 150073.

On federal habeas corpus review of a state conviction, the state court's factual findings

are presumed to be sound unless petitioner rebuts that presumption by clear and convincing
evidence. Lenz v. Washington. 444 F.3d 295 (4th Cir.), cert, denied. 548 U.S. 928 (2006). Here,

then, the state court's factual determination that the jury received the instruction in question must
be deemed correct. That being so, the rejection of Claim 4 in the state habeas proceeding was

neither contrary to nor an unreasonable application of controlling federal law, nor was it based on

an unreasonable interpretation of the record facts. Therefore, the same result is compelled here.
Williams. 529 U.S. at 412 - 13.

IV. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss this petition will be granted,
and the petition will be dismissed with prejudice. Petitioner's Motion for Summary Judgment
will be denied. An appropriate Order and judgment shall issue.

Entered this^^D__ day of

C_ /

2016.

Alexandria, Virginia
Is!

i
O'Giady
Uiiiic-d Slates District Judge