Herrington v. Clarke

Filing 19

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 1/18/2017. (dest ) (copy sent to Pro Se)

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

Donald Herrington,
Petitioner,
V.

)
)
)
)

Harold Clarke,
Respondent.

)
)
)

l;16cv412 (AJT/MSN)

MEMORANDUM OPINION

Donald Herrington, 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 convictions

entered in the Circuit Court of Stafford County.' Before this Court is the respondent's Motion to
Dismiss the petition.
I. Background

On August 1, 2012, a jury found petitioner guilty of three counts of attempting to obtain

money by false pretense, four counts of perjury, two counts of failing to file a tax return, and

three counts of filing a false income tax return. After reviewing a presentence report and hearing
evidence, the trial court imposed an active sentence of six years and 24 months incarceration.
The court subsequently suspended imposition of the sentence and appointed counsel to aid
petitioner with post-trial proceedings and direct appeal. On December 17,2012, after hearing
motions, the court executed imposition of the sentence.

On direct appeal, counsel filed a brief pursuant to Anders v. California. 386 U.S. 738

(1967), along with a motion to withdraw. The sole arguable error cited was that the trial court
'Case Numbers CRl 1001320-00 through -02, CRl 1001320-04 though -07, and CRl 1001320-10
through -14.

abused its discretion by sentencing petitioner to six years and 24 months incarceration given the
nature of his crimes. When petitioner was provided with the opportunity to raise any claims he
might choose, he filed a "list of errors" setting out 134 instances of alleged irregularities. The

appellate court rejected the contention that the sentence constituted an abuse of discretion, noting
that the sentences imposed were within the ranges set by the legislature and that no evidence had

been presented to indicate that they were "so grossly disproportionate as to shock the
conscience." Herrineton v. Commonwealths R. No. 1945-12-4 (Va. Ct. App. Nov. 5,2013), slip
op. at 2, quoting Wolkind v. Selpk 473 F. Supp. 675, 679 (E.D. Va. 1979), afTd, 649 F.2d 865

(4th Cir. 1981). As to petitioner's "list of errors," the court determined:

In his supplemental petition for appeal, appellant alleges 134
instances of error committed by the trial court. Deciphering
appellant's 'list of errors' requires reference to a system of
abbreviations of appellant's own creation. The allegations of error
are unsupported by legal argument or citation to authority except by
cross-referenceto appellant's compilation, in a separate section ofthe
petition, of various statements of law. [FN 1]
[1] Many of appellant's allegations do not contain an
exact citation to the record or particular transcript
where appellant preserved his objection in the trial
court. Examination of the citations to the record that

appellant has provided reveals that in many instances
appellant raised no objection to the action of the trial
court about which he complains on appeal.
Consideration of these issues is thus barred by Rule
5A:18, which provides that '[n]o 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....'

Rule 5A: 12(c)(5) mandates that the petition for appeal include
'principles oflaw and the authorities' with respect to each assignment
of error. The principles of law and the authorities may not be
'scattered through the petition.' Rule 5A:12(c)(5).

The petition for appeal does not contain argument that sufficiently
complies with Rule 5A: 12(c)(5). This Court "'may... treat a question
presented as waived'" when we determine that "a party's 'failure to
strictly adhere to the requirements' of the rule regarding legal
argument is "significant." Parks v. Parks. 52 Va.App. 663,664,666
S.E.2d 547,548 (2008) (quoting Jav v. Commonwealth. 275 Va. 510,
520, 659 S.E.2d 331, 317 (2008)). In this case, we find appellant's
failure to comply with Rule 5A: 12(c)(5) is significant. As we stated
in Fadness v. Fadness. 52 Va.App. 833, 851, 667 S.E.2d 857, 866
(2008), "[a]ppellate courts are not unlit rooms where [litigants] may
wander blindly about, hoping to stumble upon a reversible error. If
the parties believed that the circuit court erred, it was their duty to
present that error to us with legal authority to support their
contention." "We will not search the record for errors in order to

interpret the appellant's contention and correct deficiencies in a
brief." Buchanan v. Buchanan. 14 Va. App. 53,56,415 S.E. 2d 237,
239 (1992). Thus, we consider waived the issues raised in the
supplemental petition for appeal, and we do not consider them.

Herrinston v. Commonwealth. R. No. 1945-12-4, slip op. at 2-3. On January 16,2014, the Court

of Appeals denied a motion by petitioner to set aside the judgment and grant rehearing. The
Supreme Court of Virginia refused his petition for a second-tier appeal on September 2,2014,

Herringtonv. Commonwealth. R. No. 140286 (Va. Sept. 2,2014), and denied rehearing of that
determination on November 6,2014.

On July 13,2015, Herrington filed a petition for a state writ of habeas corpus in the
Supreme Court of Virginia, raising the same claims he makes in this federal proceeding. The
petition was dismissed in a written order which will be discussed in greater detail infra.
Herrington v. Clarke. R. No. 150943 (Va. Mar. 2, 2016).

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

reliefpursuant to §2254 on March 30,2016,^ raising the following claims:
^For federal purposes, a pleading submitted by an incarcerated litigant is deemed filed whenit is
delivered to prison officials for mailing. Houston v. Lack. 487 U.S. 266 (1988); Lewis v. Citv of

1.

Jury instructions were erroneous because they omitted
elements of the offenses.

2.

He is actually innocent offailing to file a tax return in
2009.

3.

The evidence was insufficient to find that he failed to

file a tax return in 2006, and the jury instructions
improperly shifted the burden ofproofto require him
to prove his innocence.
4.

He is actually innocent of peijury.

5.

His waiver of the right to counsel was not valid.

6.

He was the victim of prosecutorial vindictiveness in
several respects when the Commonwealth withheld
exculpatory evidence.

7.

His rights to an impartial jury and a fair trial were
violated in several respects.

8.

The oral pronouncement ofsentence differed from the
sentencing order and was changed after he had exited
the courtroom.

9.

The trial court erred in refusing to consider his pro se
post-trial motions and in refusing to give counsel
sufficient time to prepare and be heard on post-trial
motions.

10.

The trial court erred by refusing to allow him to speak
before sentence was imposed.

11.

He was denied his rights to present a full and fair
defense, to present evidence, and to have compulsory
process for obtaining witnesses.

12.

He was denied access to the courts because he

Richmond Police Dep't. 947 F.2d 733 (4th Cir. 1991) Here, petitioner certified that he placed his
petition in the prison mailing system on March 30, 2016, Pet. at 35, and it was date-stamped as
received by the Clerk on April 12,2016. Pet. at 1.

represented himself and was not. afforded adequate
access to a law library and legal materials.
13.

His convictions are the result of prosecutorial
vindictiveness and misconduct.

14.

His convictions were obtained through fraud upon the
court.

15.

He received ineffective assistance during post-trial
proceedings and on direct appeal.

On May 9,2016, respondent filed a Motion to Dismiss with a supporting brief and
exhibits, and provided petitioner with the notice required by Roseboro v. Garrison. 528 F.2d 309

(4th Cir. 1975) and Local Rule 7K. (Dkt. No. 8-11) Petitioner filed a reply captioned as a
Traverse Response on May 23,2016. (Dkt. No. 14) On June 10,2016, he submitted a Motion to

Amend/Correct Response, and the motion was granted to the extent that the arguments put forth

there are deemed a supplement to the Traverse Response. (Dkt. No. 18) Accordingly, this matter
is now 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 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 applicationto 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). In this case, as respondent acknowledges, petitioner's claims have been
exhausted.
III. Procedural Default

The majority of the claims petitioner makes in this proceeding 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
applicationdoes 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).
A. Claims 1. 3. 5. 6(A\ 7. 9. 10. 12. and 13

In its order denying Herrington's state habeas corpus application, the Supreme Court of
Virginia found as follows:

In claim (1), petitioner contends his convictions resulted from jury
instructions that omitted elements of the offenses. In claim (3),
petitioner contends the evidence was insufficient for a properly
instructed jury to find he failed to file an income tax return in 2006
and that the Commonwealth improperly shifted the burden to
petitioner to show he was innocent of the crime. In claim (5),
petitioner contends his waiver ofthe right to counsel was not valid.
In a portion of claim 6(A), petitioner contends he was the victim of
prosecutorial vindictiveness. In a portion of claim (7), petitioner

contends the trial court erred in failing to question a juror after a
witness indicated she knew the juror. In another portion ofclaim (7),
petitioner contends the trial court erred in denying his motion to set
aside the verdict based on the trial court's failure to investigate the
juror's relationship with the witness. In another portion ofclaim (7),
petitioner contends the trial court erred in informing the jury, during
the guilt phase ofhis trial, ofthe applicable sentencing range for five
perjury convictions. In claim (9), petitioner contends the trial court
erred in refusing to consider petitioner'spro se post-trial motions and
refusing to provide counsel with sufficient time to investigate, file, or
be heard on post-trial motions. In claim (10), petitioner contends the
trial court erred by refusing to allow petitioner to speak prior to the
imposition of petitioner's sentence. In claim (12), petitioner, who
represented himselfat trial, contends the trial court erred in failing to
ensure petitioner had adequate access to a law library and legal
materials. In a portion of claim (13), petitioner contends he was the
victim of prosecutorial vindictiveness in that the prosecutor sought
additional charges against petitioner to obtain a search warrant due to
personal animus against petitioner.

The Court holds that claims (1), (3), (5), (9), (10), (12), and these
portions of claim 6(A), (7), and (13) are barred because they could
have been raised on direct appeal to this Court but were not. Thus,
these non-jurisdictional issues are not cognizable in a petition for a
writ of habeas corpus. Slavton v. Parriean. 215 Va. 27, 205 S.E.2d
680 (1974), cert, denied. 419 U.S. 1108 (1975).

Herrington v. Clarke. R. No. 150943, slip op. at 1-2.
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). Petitioner argues in his Traverse Response that the
foregoing holding was erroneous, because he did bring up all of the grounds discussed by the

Supreme Court of Virginia in the pro se supplement he filed on direct appeal. However,
petitioner's position is without merit, because the Court of Appeals found that the issues

petitioner raised in the supplemental petition for appeal had been waived, and it expressly
declined to consider them. Herrineton v. Commonwealth. R. No. 1945-12-4, slip op. at 3. The

Supreme Court of Virginia subsequently declined to review thatresult.^ Thus, the arguments
raised in petitioner's "list of errors" receivedno scrutinyby the Virginia courts, and as he has
made no showing of cause and prejudice or a fundamental miscarriage ofjustice, claims (1), (3),
(5), (9), (10), (12), and the portions of claim 6(A), (7), and (13) discussed above by the Supreme
Court of Virginia are procedurally barred from federal consideration.
B. Claims 6(A^ - m

and 13

In its order denying Herrington's state habeas corpus application, the Supreme Court of
Virginia also found as follows:
In another portion of claim (6)(A), petitioner contends the
Commonwealth withheld exculpatory evidence ofhandwritten letters
from petitioner's former tenants complaining about Matthew
Goldberg, one ofthe Commonwealth's witnesses. Petitioner further
contends the trial court erred in denying his motion to compel the
Commonwealth to produce these letters. In another portion ofclaim
(6)(A), petitioner contends the Commonwealth dismissed 'valid
charges' against Goldberg in exchange for his testimony against
petitioner, in violation of petitioner's right to equal protection.
Petitioner contends he was one of several people who swore out
complaints against Goldberg and that he was present in court when
the charges were dismissed. In claim (6)(B) and a portion of claim
(6)(C), petitioner contends that at trial he asked the Commonwealth
for 'the recordings ofMr. Goldberg's trying to set up' petitioner, but
the Commonwealth never produced the recordings. In another
portion ofclaim (6)(C), petitioner contends the Commonwealth failed
to provide him with the grand jury testimony of its witnesses. In
claim (6)(E), petitioner contends the Commonwealth improperly
withheld from him the instructions for filing his taxes, in claim
(6)(F), petitioner contends the Commonwealth provided him with a
recording of petitioner's conversations with unnamed witnesses,
knowing petitioner did not have the means to listen to the recording.

^Because the opinion of the Courtof Appeals was the last reasoned state court decision on this
point, its reasoning is imputed to the Supreme Court of Virginia, which refused further review
without opinion. See Ylst v. Nunnemaker. 501 U.S. 797, 803 (1991).

and refused to transcribe the recoding for petitioner. Petitioner
further contends the trial court erred in denying his motion to have the
recording transcribed.
The Court holds that claims (6){B), (6)(E), (6)(F), and these portions
of claims (6)(A) and (6)(C) are barred because they could have been
raised on direct appeal to this Court but were not. Thus, these nonjurisdictional issues are not cognizable in a petition for a writ of
habeas corpus. Slavton. 215 Va. at 29,205 S.E. 2d at 682.

In claim 6(G), petitioner contends the prosecutor withheld from
petitioner that she had exchanged emails with Julie Tremblay, a
witness. Petitioner concedes he became aware of the emails during
his trial. In a portion of claim (6)(H), petitioner contends the
prosecutor failed to disclose that one of petitioner's witnesses had
been charged with a crime. Petitioner concedes he became aware of
the charge during his trial. In another portion of claim (6)(H),
petitioner contends the prosecutor failed to disclose unspecified
statements made by Anfea Flood, who subsequently refosed to
testify at petitioner's trial, invoking her right not to incriminate
herself.

Petitioner concedes he became aware of the statements

during his trial. In a portion of claim (13), petitioner contends the
prosecutor withheld from petitioner written complaints against
petitioner from petitioner's tenants. Petitioner's exhibits show he was
aware of the letters prior to trial.

The Court holds that claim (6)(G) and these portions ofclaims (6)(H)
and (13) are barred because they could have been raised on direct
appeal to this Court but were not. Thus, these non-jurisdictional
issues are not cognizable in a petition for a writ ofhabeas corpus. Id.

Herrineton v. Clarke. R. No. 150943, slip op. at 2-3.
As with petitioner's earlier claims, the Supreme Court of Virginia determined based on
the adequate and independent state-law ground of the Slavton rule that claims 6(A) through (H)

and 13 were procedurally defaulted in the state habeas proceeding. Coleman. 501 U.S. at 729-30.

As petitioner makes no viable shoving of cause and prejudice for the default or the existence of a
fundamental miscarriage ofjustice in his Traverse Response, those claims likewise are
procedurally barred fi*om federal review. Harris. 489 U.S. at 262.

C. ClaimsS. lUA^-rP^

As to claims 8 and 11 of this petition, the Supreme Court of Virginia determined:

In claim (8), petitioner contends the trial court erred in stating that
eight of his twelve one-year sentences were to run concurrently but
then stating, after he prosecutor sought clarification, that only four of
his one-year sentences were to run concurrently. Petitioner contends
the court did not clarify that only four ofpetitioner's active sentences
were to be run concurrently after petitioner had exited the courtroom.
Petitioner ftjrther contends the trial court erred in reftising to consider
petitioner's motion to correct the sentencing order to reflect that eight
of his active sentences were to be run concurrently.
The Court holds that claim (8) is barred because it could have been
raised on direct appeal to this Court but was not. Thus, this nonjurisdictional issue is not cognizable in a petition for a writ ofhabeas
corpus. Slavton. 215 Va. at 29,205 S.E. 2d at 682.

In a portion ofclaim (11)(A), petitioner contends the trial court erred
in refusing to permit him to present evidence during crossexamination of a witness. In another portion of claim (11)(A),
petitioner contends the trial court erred in failing to recall a witness
after petitioner asked that she be recalled. In another portion ofclaim
(11)(A), petitioner appears to argue that the trial court erred in
excusing a witness after she expressed fear ofpetitioner. In a portion
of claim (11)(B), petitioner contends the trial court erred in refusing
to permit petitioner to present evidence ofa mental health defect and
failing to order that petitioner be evaluated for competence. In claim
(11)(C), petitioner contends the trial court erred in denying his motion
for a subpoena duces tecum. In another portion ofclaim (11)(B) and
in a portion ofclaim (11)(D), petitioner contends the trial court erred
in refusing to permit petitioner to enter into evidence an audio
recording and documents that showed petitioner's home was subject
to foreclosure, and for refusing to allow petitioner to cross-examine
a witness regarding her mental state. In another portion of claim
(11)(D), petitioner contends the trial court and the prosecutor
prevented petitioner from presenting a 'full and fair defense.'

The Court holds that claim (11)(C) and these portions of claims
11(A), (11)(B), and (11)(D) are barred because they could have been
raised on direct appeal to this Court but were not. Thus, these non-

jurisdictional issues are not cognizable in a petition for a writ of
10

habeas corpus. Id.
Herrington v. Clarke. R. No. 150943, slip op. at 4-5.

Here again, the Supreme Court of Virginia determined based on the Slavton rule that
claims 6(A) through (H) and 13 were procedurally defaulted in the state habeas proceeding.
Coleman. 501 U.S. at 729-30. As petitioner makes no viable showing of cause and prejudice for
the default or the existence of a fundamental miscarriage ofjustice in his Traverse Response,

those claims likewise are procedurally barred from federal review. See, e.g.. Harris. 489 U.S. at
262.
D. Claims 13 - 14

As to a portion of Claim 13 as well as Claim 14, the Supreme Court of Virginia held as
follows:

In another portion of claim (13) and in a portion of claim (14)(D),
petitioner contends the prosecutor committed fraud upon the court by
having one ofpetitioner's tenants, Ben Harden, prepare a spreadsheet
showing the rent paid to petitioner and by admitting the spreadsheet
as an exhibit at trial. In another portion of claim (13), petitioner
contends the trial court erred in restricting his cross-examination of
Harden. In another portion of claim (13), petitioner contends the
prosecutor failed to provide petitioner with a copy ofthe recording or
the grand jury proceedings. In another portion of claim (13),
petitioner contendsthe prosecutorimproperly subpoenaed petitioner's
medical records. In another portion ofclaim (13), petitioner contends
the prosecutor improperly failed to call a witness after it became
apparent that petitioner wished to question the witness.

The Court holds that these portions of claims (13) and (14)(d) are
barred because they could have been raised on direct appeal to this
Court but were not. Thus, these non-jurisdictional issues are not
cognizable in a petition for a writ of habeas corpus. Id.

In of claim (14)(a), petitioner contends the prosecutor committed
fraud on the trial court by stating petitioner had asked for copies of
written complaints against him a week earlier, when petitioner had
11

actually asked for the complaints two weeks earlier. In claim (14)(B),
petitioner contends the prosecutor committed fraud on the trial court
by stating there was no merit to the charges against Goldberg. In
claim (14)(C), petitioner contends the prosecutor committed fraud on
the trial court by stating there was no reason for the Commonwealth
to have retained complaints against Goldberg after the charges against
him were dismissed. In another portion of claim (14)(D), petitioner
contends the prosecutor committed fraud on the trial court by
providing the police with false information to support a search
warrant. In another portion ofclaim (14)(D), petitioner contends the
evidence that petitioner violated zoning laws and committed tax fraud
was fraudulent. In another portion of claim (14)(D), petitioner
contends Mr. DuBeau falsely testified his lease with petitioner was
month to month. In another portion of claim 14(D), petitioner
contends Mrs. Canio testified falsely that she paid her rent to
petitioner every time, but subsequently admitted she had paid her rent
to Flood in January, February, and March, because petitioner was in
jail during those months.
The Court holds that ofclaims (14)(A), (14)(B), and these portions of
claim (14)(D) are barred because they could have been raised on
direct appeal to this Court but were not. Thus, these non-jurisdictional
issues are not cognizable in a petition for a writ ofhabeas corpus. Id.
Herrineton v. Clarke. R. No. 150943, slip op. at 5-6.
As with petitioner's earlier claims, the Supreme Court of Virginia determined based on
the Slavton rule that claims 6(A) through (H) and 13 were procedurally defaulted in the state

habeas proceeding. Coleman. 501 U.S. at 729-30. As petitioner makes no showing of cause and

prejudice for the default or the existence of a fimdamental miscarriage ofjustice in his Traverse

Response, those claims likewise are procedurally barred from federal review. S^ Harris. 489
U.S. at 262.
Claim (15^

Lastly, as to a portion of claim (15), the Supreme Court of Virginia determined as
follows:

12

In another portion of claim (15), petitioner contends the Court of
Appeals erred [on direct appeal] by denying his motion for new
counsel, granting counsel's motion to withdraw, and refusing to
consider the claims raised by petitioner in his pro se supplemental
petition for appeal.
The Court holds that this portion of claim (15) is barred because a
petition for a writ of habeas corpus may not be employed as a
substitute for an appeal. Brooks v. Pevton. 210 Va. 318, 321-322,
171 S.E.2d 243,246 (1969).

Herrington v. Clarke. R. No. 150943, slip op. at 8.

The foregoing holding amounts to a procedural defauh of this portion of claim 15(a), as

the Supreme Court of Virginia determined that the argument was not reviewable based upon an
adequate and independent state-law ground. Coleman. 501 U.S. at 729-30; Williams. 146 F.3d

at 209."* As petitioner makes no showing of cause and prejudice for the default, or that a
fundamental miscarriage ofjustice will result if the claim is not reviewed, this portion of claim
(15) is procedurally defaulted from federal review.
V. 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. Taylor. 529 U.S. 362,412-13 (2000). A state court's

''To be sure, the same rule reliedupon bythe Supreme Courtof Virginiaalso is regularly applied
in federal'actions. S^ United States v. Fradv.456 U.S. 152 (1982) (holding that a collateral attack
under §2255 is not a second chance at an appeal or a substitute for direct appeal).
13

deteraiination 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." Id^ 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. Aneelone. 967 F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
Claim 6(C)

In claim (6)(C), petitioner argues in part that the Commonwealth violated Bradv v.

Marvland. 373 U.S. 83 (1963) when it failed to disclose that it had paid travel expenses for a
prosecution witness. The Supreme Court of Virginia rejected this position on the following
holding:

In a portion of claim (6)(C), petitioner contends the Commonwealth
improperly failed to disclose that it had paid Goldberg's travel
expenses. Petitioner contends Goldberg was subpoenaed to testify
and had to travel from Florida to do so, and argues the payment ofhis
expenses constituted a fee paid in exchange for his testimony and the
failure to disclose the payment violated 18 U.S.C. § 201(c), which
prohibits bribery of public officials and witnesses.

The Court holds that this portion of claim (6)(C) is without merit.
Pursuant to 18 U.S.C. § 201(c), the payment ofa witness' 'reasonable
cost of travel and subsistence incurred... in attendance at' a trial are

specifically permitted. In addition, to the extentpetitioner argues the
14

failure to disclose the information violated Bradv v. Marvland. 373

U.S. 83 (1963), petitioner has failed to demonstrate that the payment
of Goldberg's travel expenses was evidence favorable to petitioner,
either because it was exculpatory or because it could be used for
impeachment. Moreover, petitioner fails to articulate how the
allegedly withheld information was material, either to his guilt or to
punishment.
Muhammad v. Warden. 274 Va. 3,4, 646 S.E.2d
182,186 (' [e]xculpatory evidence is material if there is a reasonable
probability that the outcome of the proceeding would have been
different had the evidence been disclosed to the defense.').
Herrineton v. Clarke. R. No. 150943, slip op. at 3-4.
Under established federal law, a defendant must make a three-part showing to establish
the existence of a Bradv violation: (1) the withheld evidence at issue is favorable to the accused

either because it is exculpatory or impeaching; (2) the evidence was suppressed by the

government, either willfully or inadvertently; and (3) the suppression was material. Strickler v.
Greene. 527 U.S. 263,281-82 (1999). " The mere possibility that 'undisclosed information
might have helped the defense, or might have affected the outcome of the trial, does not establish

'materiality' in the constitutional sense." United States v. Aeurs. 427 U.S. 97,109-10 (1976).
Instead, evidence is material only "if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different." Kvles v.
Whitlev. 514 U.S. 419,433-34 (1995).

Here, it is readily apparent that the state courts' denial of petitioner's Bradv claim was in
accord with these authorities, because the fact that the Commonwealth appropriately paid a

witness' travel expenses did not constitute material evidence. "There is never a real 'Bradv
violation' unless the nondisclosure was so serious that the suppressed evidence would have

produceda differentverdict." Strickler. 527 U.S. at 281-82. A "reasonable probability" of a
different result is shown "when the government's evidentiary suppression undermines confidence
15

in the outcome of the trial." Kvles. 514 U.S. at 434. Here, there is no reasonable probability that
the jury would have returned a different verdict had it learned that the witness' travel expenses

were paid in accordance with 18 U.S.C. § 201(c), so the evidence allegedly suppressed was not
constitutionally material. Cf Agurs. 427 U.S. at 109-10. Therefore, the Virginia court's
rejection of this claim was both factually reasonable and in accord with controlling federal
authorities, and the same result must pertain here. Williams. 529 U.S. at 412-13.
Claim 15

In claim 15 of this petition, petitioner contends that he received ineffective assistance of
counsel on direct appeal for several 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).
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 counsel's conduct falls within the wide range of

reasonable professional assistance." Id at 689; see also. Burket. 208 F.3d at 189 (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

16

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 of an 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. Tavlor. 162 F.3d 273, 278 (4th Cir. 1998).

The Strickland analysis applies to claims of ineffective assistance on appeal as well as at
trial. Matire v. Wainwrisht. 811 F.2d 1430,1435 (11th Cir. 1987).

In claim 15, petitioner argues that he was denied effective assistance of appellate counsel
for numerous reasons. In the state habeas proceeding, the Supreme Court of Virginia set out a
detailed discussion of petitioner's arguments and ultimately found that none had merit, as
follows:

In a portion ofclaim (15), petitioner contends he was denied effective
assistance of counsel on appeal because counsel filed a petition for
appeal pursuant to Anders v. California. 386 U.S. 738 (1967).
Petitioner alleges counsel did not sufficiently consult with petitioner
during his appeal and did not assist petitioner with his pro se
supplemental petition for appeal.
The Court holds that this portion of claim (15) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland v. Washington. 466 U.S. 668, 687 (1984) .
17

The record, including the petition for writ of habeas corpus and the
order of the Court of Appeals denying the petition for appeal,
demonstrates that counsel properlyfiled a petition for appeal pursuant
to Anders on petitioner's behalf in the Court of Appeals, along with
a motion to withdraw and a motion for extension of time to allow

petitioner to file apro se supplemental petition for appeal. The Court
of Appeals' order denying petitioner's appeal demonstrates that a
copy of the petition for appeal counsel filed was furnished to
petitioner with sufficient time for petitioner to raise any matter that
he chose. Counsel was not required to assist petitioner with his pro se
supplemental petition. Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the resuh of the
proceeding would have been different.
In another portion of claim (15), petitioner contends he was denied
the effective assistance of counsel because counsel did not have

sufficient time to review and develop a proper post-trial motion and
failed to obtain a transcript of the hearing on petitioner's motion to
set aside the verdict.

The Court holds that this portion of claim (15) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland. Petitioner fails to identify the post-trial
motion he contends counsel did not have time to review and develop,
or articulate how additional time would have aided counsel.

In

addition, petitioner fails to demonstrate how he was prejudiced by
counsel's failure to obtain the transcript of petitioner's motion to set
aside the verdict. Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the resuh of the
proceeding would have been different.
In another portion of claim (15), petitioner contends he was denied
the effective assistance of counsel because counsel abandoned

petitioner by leaving the Office of the Public Defender to enter
private practice, resulting in another attorney from that office taking
over petitioner's case.
The Court holds that this portion of claim (15) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland. Petitioner concedes counsel ensured his

case was transferred to another attorney within the office and
petitioner has failed to articulate any prejudice arising from the
18

transfer ofhis case to another attorney. Thus, petitioner has failed to
demonstrate that counsel's performance was deficient or that there is
a reasonable probability that, but for counsel's alleged errors, the
resuh of the proceeding would have been different.
In another portion of claim (15), petitioner contends he was denied
the effective assistance ofcounsel because his new appellate attorney
refused petitioner's request to add additional claims to the petition for
appeal, which had already been filed in the Court of Appeals.
The Court holds that this portion of claim (15) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland. The selection ofissues to address on appeal
is left to the discretion of appellate counsel, and counsel need not
address every possible issue on appeal. Jones v. Barnes. 463 U.S.
745,751 -52 (1983). Further, petitotner fails to articulate the issue or
issues he wished counsel to add to his petition for appeal. Thus,
petitioner has failed to demonstrate that counsel's performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result ofthe proceeding would have been
different.

Herrington v. Clarke. R. No. 150943, slip op. at 6 - 8.
The foregoing determination by the Supreme Court of Virginia was both factually

reasonable and in accord with applicable federal principles. To the extent that the Court

determined that counsel filed a petition for appeal pursuant to Anders on petitioner's behalf in
accordance with Virginia law and had no duty to assist petitioner with his pro se supplemental

pleading, its holding constitutes a finding of fact to which the federal courts must defer. S^ 28
U.S.C. § 2254(d); Sumnerv. Mata. 449 U.S. 539, 546-47 (1981); Wilson v. Greene. 155 F.3d
396,405-06 (4th Cir. 1998) (federal court is required to give deference to findings of fact made

by state trial and appellate courts). The Court's findings that counsel's alleged errors of failing to

develop a properpost-trial motion, failing to obtain a transcript of petitioner's motionto set aside
the verdict, and leaving the Office of the Public Defender did not warrant relief because

19

petitioner failed in each instance to show that the error asserted affected the result of the appeal
were squarely in line with federal principles. Strickland. 466 U.S. at 694. Lastly, as the Court
acknowledged, federal law is clear that "appellate counsel is given wide latitude to develop a

strategy," Lovitt v. Anpelone. 208 F.3d 172,189 (2000), and counsel is not required to assert
every conceivable claim on appeal; indeed, counsel's choice of which appellate issues to pursue
is virtually unassailable. Jones. 463 U.S. at 751-52. Here, then, as there has been no showing
that appellate counsel's representation satisfies either prong of the Strickland analysis, the
Supreme Court of Virginia's rejection of Claim (15) was factually reasonable and in accord with

applicable federal principles, and the same resuh is compelled here. Williams. 529 U.S. at 41213.

E. Claims 2. 4 and 13

In claims 2 and 4, petitioner contends that he is actually innocent of failing to file an

income tax return in 2009 and of perjury. In its order denying his state habeas corpus

application, the Supreme Court of Virginia found that these claims were "barred because
assertions of actual innocence are outside the scope of habeas corpus review, which concerns
only the legality of the petitioner's detention." Herrineton v. Clarke. R. No. 150943, slip op. at

2, citing Lovitt v. Warden. 266 Va. 216,259, 585 S.E.2d 801, 826-27 (2003). As the Virginia
court held, claims of actual innocence standing alone do not serve as a basis for habeas corpus
relief. See Herrera v. Collins. 506 U.S. 390,400 (1993) ("Claims of actual innocence based on

newly-discovered have never been held to state a ground for federal habeas relief absent an

independentconstitutional violation occurring in the underlying state criminal proceeding.");
Rouse V. Lee. 339 F.3d 238,255 (4th Cir. 2003) ("[C]laims of actual innocence are not grounds

20

for habeas relief even in a capital case.")- Therefore, the state court's finding that claims 2 and 4
of this petition state no cognizable basis for habeas corpus relief was in accord with controlling
federal principles, and must be allowed to stand. Williams. 529 U.S. at 412-13.
Similarly, in a portion of claim 13, petitioner asserts that he was the victim of
prosecutorial vindictiveness in that the prosecutor reported petitioner's criminal activities to his
broker, his doctor, and the zoning department, as the result of which petitioner lost his real estate
license and was forced to evict tenants and relatives who were living with him. The Supreme

Court of Virginia held that this portion of claim (13) was "not cognizable in a petition for writ of
habeas corpus, as it does not allege probable cause to believe petitioner is detained without
lawful authority." Herrington v. Clarke. R. No. 150943, slip op. at 5. Again, because this

argument does not allege that a constitutional violation occurred in the underlying state criminal
proceeding, federal law recognizes that it does not serve as a basis for habeas corpus relief,

Herrera. 506 U.S. at 400, so that same determination by the Supreme Court of Virginia cannot be
disturbed.

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

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

and the petition will be dismissed with prejudice. An appropriate Order andjudgment shall
issue.

Entered this

/

day of

'—r

2017.

7

Anthony J.

Alexandria, Virginia

United States
21

Judge