Dillon v. Clarke
MEMORANDUM OPINION. Signed by District Judge Liam O'Grady on 02/15/2017. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Thomas Randall Dillon,
Thomas Randall Dillon, 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 Hanover County. Before this Court is the respondent's
Motion to Dismiss the petition.
On March 21,2014, petitioner was convicted following a jury trial of one counteach of
abduction by force and assault. Case No. CRl 300019-00 and -01. The facts underlying the
charges were explained by the Court of Appeals of Virginia as follow:
On December 15,2012, [Dawn] Pitts went to Henrico County to pick
up appellant from Stuart Chisholm's home. Appellant had called
Pitts and told her he was drunk and could not drive his moped. He
asked Pitts to drive him back to his motel room at the Apple Garden
Inn in Hanover County. When Pitts arrived at Chisholm's home
around 9:30 or 9:35 p.m., appellant appeared intoxicated and was
consuming more alcohol. He did not agree to leave with Pitts until
after midnight. At about 3:15 a.m., Pitts picked up appellant from
another location and began driving to the Apple Garden Inn. During
this drive, appellant became verbally and physically abusive.
Appellant struck Pitts in the face and head with his fists.
Whenthey reachedthe motel,appellantarguedwith Pitts furtherand
would not get out ofthe car. Appellanttried to convincePitts to take
him to the hospital or to Pitts' home, but she refused. Appellant took
Pitts' car keys, got out ofthe car, and went into his motel room. Pitts
went to the room to retrieve her keys. Appellant had her come inside
to talk. Appellant began groping Pitts and trying to engage her in
sexual intercourse. When she refused, appellant told her she was not
going anywhere but would spend the night with him. He then
demanded she take him to the hospital or her home. When she
refused, he did not allow her to leave. Over the course ofabout three
hours, Pitts repeatedly tried to leave the room, but appellant would
not let her go or give her the keys. During this time, appellant threw
her onto the bed, hit her, and kicked her in the stomach. At one time,
he got on top of Pitts and choked her. Another time, appellant
grabbed a knife, held it to Pitts' face, and threatened to 'gut' her and
himself. Finally, Pitts said she would take appellant to stay at her
house. While appellant was gathering some clothes, Pitts fled fi:om
Dillon V. Commonwealth. R. No. 0771-14-2 (Va. Ct. App. Feb. 5,2015), slipop. at 4-5.' Dillon
was sentenced to serve 10 years in prison with 7 years suspended for the abduction by force, and
12 months with 6 months suspended for the assault.
In addition, petitioner earlier had been convicted in Henrico County of two counts of
carnally knowing a child of thirteen years of age and one count of contributing to the delinquency
of a minor. Case Nos. CR10001361-00 and -01, CRl 0001362-00. He was sentenced to an
aggregate of 21 years incarceration, with 17 years and 14 months suspended. On March 21,
2014, the court revoked the entire period of suspended time based upon the abduction and assault
convictions, and re-suspended 16 years and 8 months of the sentence.
Dillon took a direct appeal of all of the foregoing convictions, raising the following
' Because a federal court on habeas review of a state conviction must defer to findings of fact
made by state trial and appellate courts, 28 U.S.C. § 2254(d), it is appropriate to look to the state
court's recitation of the salient facts.
The trial court abused its discretion by ignoring the
Brickhouse factors and permitting Pitts to testify
again, thereby denying his constitutional right to a fair
Brady v. Maryland requires reversal because the
police report and Pitts' written statement to the police
contained exculpatory evidence and had impeachment
value but were not provided to the defense.
The trial court erred by overruling his objection to
amendment of the indictment because it was a fatal
The evidence to sustain the abduction conviction was
insufficient as a matter of law.
The victim impact statement violated the Virginia
Code and his constitutional rights to due process and
a fair trial.
Because he was wrongfully convicted of abduction
and assauh, the probation violation convictions cannot
A judge of the Court ofAppeals denied Dillon's petition for appeal on February 5,2015,
and a three-judge panel refused further review on April 23,2015. Resp. Ex. 1. Petitioner sought
review by the Supreme Court of Virginia, but his petition was refused on December 23,2015.
Dillon V. Commonwealth. R. No. 150661 (Va. Dec. 23,2015); Resp. Ex. B.
On April 4,2016, Dillon turned to the federal forum and timely filed this application for a
writ of habeas corpus pursuant to §2254,^ essentially reiterating the claims that were raised direct
appeal, as follow:
^For federal purposes, a pleading submitted by an incarcerated pro ^ litigant is deemed filed
when it is delivered to prison officials for mailing. Houstonv. Lack. 487 U.S. 266 (1988). In this
case, petitioner declaredthat he placed his petition into the prison mailing systemon April 4,2016.
Pet. at 15.
The trial court abused its discretion in permitting
Dawn Pitts to testify at petitioner's second trial, in
violation of his constitutional rights to due process
and a fair trial.
The prosecutor withheld exculpatory evidence in the
form ofwritten statements by Dawn Pitts, in violation
of Brady and his right to due process.
The trial court abused its discretion and violated his
rights to due process and a fair trial by denying a
defense motion to strike the abduction charge where
the evidence was insufficient as a matter of law to
sustain the conviction.
The trial court abused its discretion by admitting
Dawn Pitts' prejudicial victim impact statement, in
violation of his constitutional rights to due process
and a fair trial.
Because he was wrongfully convicted of abduction
and assault, the trial court abused its discretion by
allowing the probation violation convictions to stand.
Pet. Memo, of Law and Facts, Dkt. No. 2 at 1. Respondent filed a Motion to Dismiss the petition
along with a supporting brief and exhibits on May 16,2016, and provided petitioner with the
notice required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. (Dkt.
No. 13-16) Petitioner filed his Opposition to Motion to Dismiss on June 23,2016. (Dkt. No.
19) Accordingly, this matter is ripe for disposition.
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); Cranberry 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 legalclaims raised in his federal habeas corpus application to the Supreme Courtof
Virginia on direct appeal or in a state habeas corpus petition. See, e.g.. Duncan v. Henry. 513
U.S. 364 (1995). Here, all of petitioner'spresent claims were exhausted by beingpresented to the
Supreme Court of Virginia on direct appeal.
III. Procedural Default
Petitioner's claims 1 and 4 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 a federal habeas proceeding. See
Coleman v. Thompson. 501 U.S. 722, 729-30 (1991); Williams v. French. 146 F.3d 203,208-09
(4th Cir. 1998). 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. 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).
In claim 1 ofthis petition, Dillon argues that the trial court abused its discretion and
violated his constitutional rights to due process and a fair trial when it allowed the victim. Dawn
Pitts, to testify at the second trial.^ When he madethis same argument on directappeal, the
^As the Court of Appeals explained, petitioner was tried twice. After he was convicted of
abduction and assault at a trial on July 2,2013, he moved for a new trial on the ground that after
Dawn Pitts testified as a witness for the Commonwealth, she violated the court's exclusion order by
listening to the remainderofthe trial testimonyat the courtroomdoor. The court granted the motion
and ordered a second trial. Petitioner moved in limine to exclude Pitts' testimony from the second
Court of Appeals found "no abuse of discretion in the trial court's refusal to exclude Pitts'
testimony from the second trial." Dillon v. Comm.. R. No. 0771-14-2, slip op. at 2. As to
petitioner's argument that the court's ruling violated his constitutional rights, the appellate court
Appellant contends for the first time on appeal that the trial court's
ruling resulted in a denial of his constitutional right to a fair trial.
Appellant's motion in limine and supporting argument addressed (and
his appellate argument addresses) only the statutory question. The
constitutional question is not before us, and we cannot consider it.
See Rule 5A:18...
Id., slip op. at 1, n. l!" Because the Supreme Court of Virginia refused further review of this
order without explanation, the reasoning of the Court of Appeals is imputed to it. ^
Nunnemaker. 501 U.S. 797, 803 (1991).
Similarly, in claim 4 of this petition, Dillon contends that the trial court abused its
discretion by admitting Dawn Pitts' prejudicial victim impact statement and thereby violated his
rights to due process and a fair trial. The Court of Appeals found "no abuse of discretion in the
trial court's decision regarding the victim impact statement." Id, slip op. at 7. Again, as to
petitioner's contention that the admission of the victim impact statement violated his federal
rights, the Virginia court determined:
At the sentencing hearing, appellant objected that Virginia law did
not allow the opinions in the victim impact statement. He did not
contend, as he does on appeal, that the statement's admission violated
trial, and the motion was denied. Dillon v. Comm.. R. No. 0771-14-2, slip op. at 1.
"•Rule 5A:18 ofthe ofthe Rules ofthe Supreme Court of Virginia provides that "no ruling of the
trial court... will be considered as a basis for reversal unless an objection was stated with reasonable
certaintyat the time of the ruling,except for good cause shown or to enable the Court of Appealsto
attain the ends ofjustice."
his constitutional rights. Accordingly,this portion ofhis argument is
barred by Rule 5A:18, and we do not consider it.
Id., slip op. at 6, n. 3. Because the VirginiaCourt of Appeals explicitly relied on a procedural
ground to deny petitioner relief and furnished an independent and adequate state ground to
default his claims that his constitutional rights were violated by the failure to exclude Dawn
Pitts' testimonyand by the admission of her victim impact statement, those arguments likewise
are procedurally barred here. Clanton. 845 F.2d at 1241.
A federal court may not review a procedurallybarred claim absent a showing of cause
and prejudice or a fundamental miscarriage ofjustice, such as actual irmocence. Harris. 489 U.S.
at 260. 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.
Coleman v Thompson. 501 U.S. 722,
753-54 (1991), 501 U.S. at 753-54; Clozzav. Murray. 913 F.2d 1092, 1104 (4th Cir. 1990).
Importantly, a court need not consider the issue of prejudice in the absence of cause. Komahrens
V. Evatt. 66 F.3d 1350,1359 (4th Cir. 1995), cert, denied. 517 U.S. 1171 (1996).
In his Opposition Motion in Response to Respondent's Motion to Dismiss, petitioner
argues that this Court should reach the merits of claims 1 and 4 for two reasons. First, he asserts
essentiallythat the Court of Appeals erred in holding that the constitutional argumentsraised in
connection with those claims were defaulted, because trial counsel filed a pre-trial motion in
limine to exclude Pitts' testimonyfrom the second trial and objected at the sentencing hearing to
admission of the victim impact statement. (Dkt. No. 19 at 1-2) However, petitioner's argument
misses the mark. It is true that counsel took the actions petitioner describes, but in neither
instance did he assert a constitutional basis for the relief he sought. In the Memorandum in
Support of Defendant's Motion to Vacate Judgment and Motion for New Trial filed on August
28,2013, counsel argued solely on the basis of Va. Code §19.2-265.1 and Wolfe v.
Commonwealth. 265 Va. 193, 576 S.E.2d 471 (2003) that Pitts' violation of the exclusion order
in the first trial should preclude her from testifying at the second trial. Id at 7-10. Similarly, the
Motion in Limine counsel filed on February 19,2014 at the start of the second trial likewise
relied exclusively on the authority of Va. Code §19.2-265.1, and raised no claim that Dillon's
constitutional rights would be compromised if Pitts were allowed to testify. Counsel made no
constitutional argument when the motion in limine was heard before the start of the second trial.
(T. 2/28/14 at 6-6-14). Likewise, counsel argued at sentencing that Pitts' victim impact
statement should be disallowed because it went "way above and beyond" and amounted to 'the
ramblings of a liar and a scornedwoman," but again made no assertionthat its admission would
compromise any of petitioner's constitutional rights. (T. 3/21/14 at R. 97-98) Since Rule
5A:18 provides that preservation of a trial court ruling requires "an objection was stated with
reasonable certainty," it is apparent that petitioner's contention that the Court of Appealserred in
determining that the constitutional arguments raised in cormection with claims 1 and 4 were
defaulted is without merit.
Second, petitioner argues that claims 1 and 4 "are not defaulted in this Courtat all" based
on the authority of Weeks v. Anselone. 176 F.3d 249 (4th Cir. 1999). In Weeks, the Fourth
Circuit held that a habeas petitioner's claims had been exhausted where he alleged in his brief on
direct appealthat "the denial of expert assistance constituted violations of the Fifth, Sixth, and
Fourteenth Amendment of the Constitution.... Because Weeks presented the substance of a
federal constitutional claim for experts to the Supreme Court of Virginia, we may review this
claim in a federal habeas proceeding." Id at 262. That holding has no relevance here, because as
just discussed, in this case no constitutionally-predicated argumentswere preserved for review at
trial, so the attempt to present them on appeal rightfully was found to be defaulted. For these
reasons, petitioner has failed to show cause or prejudice for the procedural default of claims 1
and 4 of this federal petition, and they hence are barred from review on themerits.^
When a state court has addressed the merits of a claim raised in a federal habeas petition,
the federal court may not grant the petition based on the claim unless the state court's
adjudication is contraryto, or an unreasonable applicationof, clearly establishedfederal 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." Id^ at 413. Under the "unreasonableapplication" 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
^It should be noted that because the claims 1 and 4 that were exhausted in the state forum were
basedentirelyon statelaw,theyarenot cognizable in a § 2254proceeding. S^ Wrightv. Angelone.
151 F.3d 151,157 (4th Cir. 1998) (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); Lawrence v.
Branker. 517 F.3d 700,717 (4th Cir. 2008) (allegationsthat a state court incorrectlyapplied state law
fail to state a basis for federal habeas corpus relief).
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
decisionthat previously addressed the claimsratherthan the petitioner's free-standing claims
themselves," McLee v. Aneelone. 967 F.Supp. 152,156 (E.D, Va. \991\ appeal dismissed. 139
F.3d 891 (4th Or. 1998) (table).
In Claim 2 of this petition, Dillon argues that the prosecution's failure to disclose
impeachment material amountedto a violation of Bradv v. Maryland. 373 U.S. 83 (1963). When
he raised this same claim on direct appeal, the Court of Appeals found as follows:
Appellant moved pre-trial to compel the Commonwealth's disclosure
of any written statements or summaries of statements made by Pitts
that were inconsistent with her testimony at the first trial. Appellant
alleged that, during the first trial, Pitts testified to appellant's use of
a knife. Pitts, however, had made no such mention of a knife when
she first spoke to the police about the incident. The Commonwealth
had advised appellant that Pitts made oral and written statements to
the police without mentioning any use of a knife. The trial court
denied appellant's motion to compel production ofPitts's statements
because appellant was aware of, and able to, make use of the
inconsistency in Pitts' statements through cross-examination.
Appellant appeals this decision and contends that Bradv v. Maryland.
373 U.S. 83 0963), entitled him to Pitts' statements and any police
report containing a statement summary.
'[T]o establish a Bradv right to the disclosure of evidence, the
defendant must show that the items in question are (1) exculpatory,
(2) not disclosed, and (3) prejudicial as the result of the failure to
disclose.' Gamett v. Commonwealth. 275 Va. 397,410,657 S.E.2d
100,108(2008). The record demonstrates that, before trial, appellant
was aware ofthe inconsistency between Pitts' statements to the police
and her testimony at the first trial that appellant used a knife.
Appellant cross-examined her accordingly. The Commonwealth
disclosed to appellant, in time for him to make use of it at trial, the
matter he sought through discovery. He suffered no prejudice.
Therefore, we find no basis to disturb the trial court's ruling.
Dillon V. Comm. R. No. 0771-14-2, slip op. at 2-3. Again, this reasoning is imputedto the
Supreme Court of Virginia because it refused further review without explanation. Ylst. 501 U.S.
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 v^dllflilly 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 affectedthe 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 "ifthere 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 readilyapparentthat the state courts' denial of petitioner's Bradvclaim was in
accord with these authorities. The defense had been made aware before the second trial that
Pitts' testimonyat the first trial and her statementto the police were inconsistent, and defense
counsel was able to cross-examine her on that basis. "There is never a real 'Bradv violation'
unless the non-disclosure was so serious that the suppressed evidence would have produced a
different verdict." Strickler. 527 U.S. at 281-82. Here, where any non-disclosure was cured
prior to the second trial, there is no possibility that it affected the verdict. The Virginia court's
rejection of this claimthus was both factually reasonable and in accord with controlling federal
authorities, and the same result is compelled here. Williams. 529 U.S. at 412-13.
In claim 3, petitioner contends that the evidence was insufficient as a matter of law to
sustain his conviction of abduction. After describing the salient events as quoted above, the Court
of Appeals found as follows:
Abduction is committed by anyone 'who, by force, intimidation or
deception, and without legal justification or excuse, seizes, takes,
transports, detains or secretes another person with the intent to
deprive such other person of his personal libertyCode § 18.247(A).
ne accused of abduction by detention and another
crime involving restraint of the victim, both growing
out ofa continuing course ofconduct, is subject upon
conviction to separate penalties for separate offenses
only when the detention committed in the act of
abduction is separate and apart from, and not merely
incidental to, the restraint employed in the
commission of the other crimes.
Brown V. Commonwealth. 230 Va. 310,314,337 S.E.2d 771,713-15
(1985). '[T]o constitute an abduction, separate and part from ...
[another crime], the victim's detention must be greater than the
restraint that is intrinsic in ... [the other crime].' Cardwell v.
Commonwealth. 248 Va. 501, 511,450 S.E.2d 146,152 (1994)
The evidence proved that appellant assaulted Pitts as she drove him
to the Apple Garden Inn. Appellant then held her against her will in
the motel room by depriving her of her keys. He used force to
prevent her from leaving the room for hours. Appellant also obtained
a knife and assaulted Pitts again by holding the weapon to her face
and threatening to kill her.
Accordingly, appellant's detention of Pitts was not incidental to
assauh and battery. Appellant told Pitts she would not be allowed to
leave the room and physically restrained her for approximately three
hours, plainly evincing an intent to deprive Pitts of her personal
liberty. The evidence was sufficient to prove beyond a reasonable
doubt that appellant abducted Pitts with the intent to deprive her of
her personal liberty.
Dillon V. Comm. R. No. 0771-14-2, slip op. at 5-6.
On federal habeas review, the standard for a claim challenging the sufficiency of the
evidence supportinga state conviction is "whether, after viewing the evidence in the light most
favorable to the prosecution,
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307, 319 (1979) (emphasis
original). The federal court is required to give deference to findings of fact made by the state
courts, and this presumption of correctness applies to facts found by both trial and appellate
courts. 28 U.S.C. § 2254(d); Sumner v. Mata. 449 U.S. 539, 546-47 (1981). Instead, the
federal court must determine only whether the trier of fact made a rational decision to convict.
Herrerav. Collins. 506 U.S. 390,402 (1993).
Here, for the reasons expressed in the Court of Appeals' decision, it is apparent that a
rational trier of fact could have found Dillon guilty of the abduction with which he was charged.
See Jackson. 443 U.S. at 319. Accordingly, the state courts' denial of relief on this claim was
neither contraryto, nor an unreasonable applicationof, clearly establishedfederal law, nor was it
based on an unreasonable determination ofthe facts. Accordingly, the same result\^must be
reached here. Williams. 529 U.S. at 412-13.
In claim 5, petitioner argues that because he was wrongfully convicted of abduction and
assault, the trial court abused its discretion by allowing the probation violation convictions to
stand. When he made the same argument on direct appeal, the Court of Appeals found this
argument to be without merit because it had affirmed the convictionsfor abduction and assault.
Dillon V. Comm. R. No. 0771-14-2, slip op. at 8. Here, in the same fashion, Dillon has failed to
show that his abduction and assault convictions violated his constitutional rights, so he states no
basis upon which to call into question the lawfulness of the probation violation convictions.
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 and judgment shall
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