Linnon v. Clarke

Filing 33

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 1/30/2017. (rban, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Craig Michael Linnon,
Petitioner,
v.
Harold W. Clarke,
Respondent.

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1:16cv869 (TSE/IDD)

MEMORANDUM OPINION
Craig Michael Linnon, 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
convictions in the Circuit Court of Hanover County. Respondent filed a Motion to Dismiss and
Rule 5 Answer, along with a supporting brief and 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 7K. After receiving additional time, petitioner filed a response in which he moves
for summary judgment to be entered in his favor. For the reasons that follow, plaintiff’s motion
must be denied, respondent’s Motion to Dismiss must be granted, and the petition must be
dismissed with prejudice.
I.
The record reflects the following facts and proceedings.

Petitioner is incarcerated

pursuant to a final judgment of the Circuit Court of Hanover County, entered November 3, 2011.
Dkt. No.1. Petitioner was convicted by a jury of (i) conspiring to take indecent liberties with a
minor, in violation of Virginia Code §§ 18.2-261 and 18.2-370.1,2 (ii) using a communications

1

This section of the Virginia Code establishes the felony class for attempts to commit
certain predicate felonies.
2

At the time of petitioner’s conviction, Virginia Code § 18.2-370.1(A) provided, in relevant part:

system to propose a sex act to a minor, in violation of Virginia Code § 18.2-374.3,3 and four
counts of (iii) taking indecent liberties with a minor in a custodial or supervisory role, in
violation of Virginia Code § 18.2-370.1.

Id.

Petitioner was sentenced to eleven years

imprisonment. Id.
During voir dire of the venire for petitioner’s trial, the prosecutor asked the jury panel if
they thought “it should be legal for an adult in their 40s to have sexual contact with children,” to
which all of the panel members answered “no.” Id. at Ex. 15. In the course of petitioner’s trial,
one of the prosecution’s witnesses, Tyler Scott, was asked on cross examination whether the

Any person 18 years of age or older who, except as provided in § 18.2-370,
maintains a custodial or supervisory relationship over a child under the age of 18
and is not legally married to such child and such child is not emancipated who,
with lascivious intent, knowingly and intentionally … (ii) proposes to such child
the performance of an act of sexual intercourse or any act constituting an offense
under § 18.2-361; or (iii) exposes his or her sexual or genital parts to such child;
… or (vi) sexually abuses the child as defined in § 18.2-67.10 (6), shall be guilty
of a Class 6 felony.
3

At the time of petitioner’s conviction, Virginia Code § 18.2-374.3 provided, in relevant part:
B. It shall be unlawful for any person to use a communications system … for the
purposes of procuring or promoting the use of a minor for any activity in violation
of § 18.2-370 or § 18.2-374.1. A violation of this subsection is a Class 6 felony.
C. It shall be unlawful for any person 18 years of age or older to use a
communications system … for the purposes of soliciting, with lascivious intent,
any person he knows or has reason to believe is a child less than 15 years of age
to knowingly and intentionally … [p]ropose to such child the performance of an
act of sexual intercourse or any act constituting an offense under § 18.2-361.
***
D. Any person who uses a communications system … for the purposes of
soliciting, with lascivious intent, any child he knows or has reason to believe is at
least 15 years of age but less than 18 years of age to knowingly and intentionally
commit any of the activities listed in subsection C if the person is at least seven
years older than the child is guilty of a Class 5 felony. …
2

prosecutor had told Scott that the prosecutors were “waiting to see how [Scott] testified before
they made any deals for [Scott].” Id. Scott answered this question “no.” Id. One week after
testifying in petitioner’s trial, Scott entered a plea of guilty for unrelated charges and, during his
plea hearing, the prosecution stated that one of Scott’s charges was being amended “based upon
[Scott’s] cooperation in another case.” Id. at Ex. 23.
Petitioner pursued a direct appeal to the Court of Appeals of Virginia, where the petition
for appeal was denied. Record No. 2418-11-2. Petitioner then appealed three of his convictions
of taking indecent liberties with a minor in a custodial or supervisory role to the Supreme Court
of Virginia, and these convictions were affirmed. Linnon v. Commonwealth, 287 Va. 92 (2014).
The facts, as stated by the Supreme Court of Virginia on direct appeal with respect to
three of petitioner’s convictions of taking indecent liberties with a minor in a custodial or
supervisory role, are as follows:
Craig Linnon taught a building trades class at a vocational school. He also was
assigned the responsibility of supervising students in the cafeteria during lunch
one day each week and on the sidewalk outside his classroom before, after, and
between classes each day. His wife, Angela, was the school nurse. She also
occasionally monitored a cosmetology class when the teacher stepped out. A.G.
was a 16–year–old female student in the cosmetology class. A.G. was not one of
Craig’s students but they saw each other every day when he monitored the
sidewalk near the bus loading zone.
In December 2009, A.G.’s cosmetology class had a party on school grounds to
celebrate the end of the semester. At the party, Angela invited A.G. and A.G.’s
female friend to the Linnons’ home that night. The two girls accepted the
invitation and the Linnons picked them up that evening. At their home, the
Linnons supplied A.G. and her friend with alcohol in exchange for marijuana.
Craig told A.G. that Angela had sexual fantasies about her and that he had a video
of Angela fellating one of his male students. A.G. and her friend were disturbed
by the sexual content of the conversation and decided to leave. Craig drove them
to the friend’s home.
The following night, the Linnons again invited A.G. to their home. A.G. returned
in the company of Jared Todd, her ex-boyfriend, and Tyler Scott, Todd’s friend.
Both Todd and Scott were 18 years old. Todd was one of Craig’s students. The
3

Linnons and the teenagers drank alcohol; the Linnons, Scott, and A.G. also
smoked marijuana.
The group began playing a sex-themed version of Charades in the living room.
The game devolved into a sexual orgy when Angela actually fellated Todd and
Scott rather than merely miming. During the activities that followed, Craig
inserted his penis into A.G.’s mouth. Craig also inserted his fingers into A.G.’s
vagina and anus. He also implored her to have sex with Angela.
Sometime thereafter, Todd and Scott went to the bathroom and decided to leave
the Linnons’ home. When A.G. realized Todd and Scott had left the living room,
she found her clothes and got dressed. When Todd and Scott returned from the
bathroom, they got dressed and announced that they were leaving. The three
teenagers departed as the Linnons continued having sex on the living room floor.
Craig was subsequently indicted on three counts of taking indecent liberties with a
minor by a person in a custodial or supervisory relationship, in violation of Code
§ 18.2–370.1(A). He and Angela were tried jointly but were represented by
separate counsel. … Angela objected to three of the Commonwealth’s proposed
jury instructions and Craig objected to a fourth. The court also rejected two jury
instructions Craig proposed. The jury thereafter convicted Craig on all three
counts and he was sentenced to a term of eleven years’ active incarceration.
Id. at 96–97.
The facts relating to petitioner’s remaining convictions that were not addressed in the
Supreme Court of Virginia’s opinion are as follows. In November 2009, another minor, T.D.,
was a student in petitioner’s class. March 29, 2011 Tr. at 173. Petitioner sent a text message to
T.D. in November 2009 asking if T.D. “would let [his] wife give [T.D.] a blow job.” Id. at 180.
T.D. answered in the affirmative and when he arrived at the school later that day petitioner took
T.D. to a storage closet where petitioner’s wife was waiting. Id. at 181-86. Petitioner asked T.D.
if he could videotape his interaction with petitioner’s wife. Id. at 186. Petitioner then left the
storage closet and petitioner’s wife performed oral sex on T.D. Id. at 187-88.
Before the Supreme Court of Virginia issued its decision affirming three of petitioner’s
convictions of taking indecent liberties with a minor in a custodial or supervisory role on direct

4

appeal, petitioner filed a Motion to Vacate Convictions for Lack of Subject Matter jurisdiction in
which he argued that his convictions should be vacated based on the Fourth Circuit’s decision in
MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), cert. denied, 134 S. Ct. 200 (2013), holding
unconstitutional Virginia’s anti-sodomy statute, Va. Code § 18.2-361(A). Dkt. No. 1 at Ex. 6.
The Supreme Court of Virginia correctly denied this motion. Id. at Ex. 7. Contrary to petitioner’s
contention, the anti-sodomy statute—which, on its face, proscribed sodomy among consenting
adults “without limits” and failed “remotely [to] suggest that the regulation sexual relations
between adults and children had anything to do with its enactment”4—did not provide the
offenses of conviction here. Rather, petitioner’s convictions were under Va. Code §§ 18.2-370.1
and 18.2-370.1 (conspiring to take indecent liberties with a minor), Va. Code § 18.2-374.3 (using
a communications system to propose a sext act to a minor), and Va. Code § 18.2-370.1 (taking
indecent liberties with a minor in a custodial or supervisory role). Importantly. these statutes
refer to conduct with respect to children, and any reference to the anti-sodomy statute describes
conduct that would be illegal if directed at a child. Put another way, defendant was convicted for
conduct he directed at a child, and these convictions are not unconstitutional under the Fourth
Circuit’s decision in MacDonald.
The subsequent history of petitioner’s arguments regarding his convictions makes this
point clear. After pursuing his direct appeal, petitioner filed a timely petition for a writ of habeas
corpus in the Circuit Court of Hanover County on October 16, 2014. In his state habeas petition,
petitioner asserted the following claims.
Claim One: that the trial court lacked jurisdiction over petitioner’s convictions.
Claim Two: that petitioner was denied effective assistance of counsel because of
trial counsel’s failure to
a. object to erroneous jury instructions.
4

MacDonald, 710 F.3d at 165.
5

b. object to prosecutorial misconduct during voir dire.
c. conduct a reasonable investigation.
Claim Three: that the Commonwealth committed prosecutorial misconduct by
failing to disclose a plea agreement with one of the witnesses.
Case No. CL14-2657-00. By Order dated February 23, 2015, the state habeas court denied and
dismissed Claims One and Two on the merits and Claim Three on procedural grounds. Id.
Specifically, the state habeas court found Claim Three to be defaulted because petitioner could
have, but failed to, assert this claim at trial or on direct appeal. Id. (citing Slayton v. Parrigan,
215 Va. 27, 29 (1974), cert. denied, 419 U.S. 1108 (1975)). Petitioner appealed from the state
habeas court’s order denying relief. By order dated January 5, 2016, the Supreme Court of
Virginia denied petitioner’s appeal.

Record No. 150744.

Because the Supreme Court of

Virginia did not issue an opinion in this regard, it is appropriate to impute to the Supreme Court
of Virginia the circuit court’s February 23, 2015 Order, as it was the last reasoned state court
decision on petitioner’s claims. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991).
On May 26, 2016, petitioner filed the instant federal petition, wherein he challenges his
convictions on the following grounds.
Claim One: that petitioner’s right to Due Process under the Fourteenth
Amendment was violated because four of his convictions were based on an
unconstitutional statute, Virginia Code § 18.2-361(A).
Claim Two: that petitioner’s trial counsel was ineffective because (a) petitioner’s
“entire venire had preconceived fixed opinions making them biased [and] partial
and trial counsel failed to take corrective action[; (b)] trial counsel failed to take
corrective action by objecting to erroneous jury instructions[; and (c)] trial
counsel failed to contact and present exculpatory witness testimony based on an
incomplete or non-existent investigation.”
Claim Three: that “[t]he Commonwealth deprived [petitioner’s] right to Due
Process by concealing a deal made with a key witness in violation of Giglio and
Napue.”

6

Because Claims One and Two have been properly exhausted, they are appropriately addressed
here on the merits. Claim Three, however, was found to be procedurally defaulted by the state
habeas court and therefore, unless petitioner makes certain showings, this claim must be
dismissed on procedural grounds.
II. Procedural Bar
Where, as here, a state court has made an express determination of procedural default, the
state court’s finding is entitled to a presumption of correctness provided two foundational
requirements are met. See 28 U.S.C. § 2254(d); Clanton v. Muncy, 845 F.2d 1238, 1241 (4th
Cir. 1988). First, the state court must explicitly rely on the procedural ground to deny petitioner
relief. See Ylst, 501 U.S. at 802-03; Harris v. Reed, 489 U.S. 255, 259 (1989). Second, the state
procedural rule used to default petitioner’s claim must be an independent and adequate state
ground for denying relief. See Harris, 489 U.S. at 260; Ford v. Georgia, 498 U.S. 411, 423-24
(1991).
Here, the state habeas court held that the petitioner’s third claim was not a cognizable
habeas claim under Slayton because it could have been, but was not, raised at trial or on direct
appeal. Case No. CL14-2657-00. Because “the procedural default rule set forth in Slayton
constitutes an adequate and independent state law ground for decision,” Mu’Min v. Pruett, 125
F.3d 192, 196-97 (4th Cir. 1997), the effect of the state habeas court’s ruling is to bar review of
the claim in federal court, absent a showing of cause and prejudice or a fundamental miscarriage
of justice, such as actual innocence. Harris, 489 U.S. at 260.
The record reflects that plaintiff has failed to establish cause. 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. See Coleman v. Thompson, 501 U.S. 722, 753-54 (1991); Clozza v.
7

Murray, 913 F.2d 1092, 1104 (4th Cir. 1990); Clanton, 845 F.2d at 1241-42. The record reflects
that none of these is present here. The record does not disclose that the failure to assert this
claim at trial or on direct appeal is related to the denial of effective assistance of counsel or a
factor external to the defense which impeded compliance with a state procedural rule. Nor is the
claim at all novel.

In short, the record establishes no cause for the procedural default.

Importantly, a court need not consider the issue of prejudice in the absence of cause. See
Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995), cert. denied, 517 U.S. 1171 (1996).
Seeking to avoid this result, petitioner argues that he can establish cause because (1)
Scott was given a plea deal one week after petitioner’s trial and the plea deal was given “based
on [Scott’s] cooperation in another case,” (2) petitioner was not notified of this plea deal, (3)
petitioner relied on the prosecutor’s open file policy, (4) petitioner relied on the prosecution’s
statements that they had disclosed any deals made with witnesses, (5) the prosecutor allowed
Scott to falsely testify that he had not been offered a deal for his testimony, and (6) petitioner
was prohibited from having contact with Scott or his family, making it more difficult for
petitioner to find out about Scott’s plea deal. Pet. Resp. to MTD at 103-05.
This argument fails; it does not establish the requisite cause. This is so because
petitioner’s argument is based on the erroneous assumption that the prosecution gave Scott a plea
deal for his testimony in advance of Scott’s testifying at petitioner’s trial. The record discloses
the contrary. The prosecutor’s affidavit attached to respondent’s Motion to Dismiss establishes
that Scott was not offered a plea deal until after he testified in petitioner’s trial. Because Scott
was not offered a deal until after testifying at petitioner’s trial, Scott’s testimony and the
prosecutor’s representations at trial were not false. Petitioner is not able to overcome this
evidence by showing that Scott’s trial was continued until after petitioner’s trial and that Scott
was given a plea deal for his “cooperation in another case,” because this evidence is insufficient
8

to establish that Scott was given a deal for his testimony in petitioner’s case before petitioner’s
trial. Accordingly, because petitioner has not established cause, prejudice, miscarriage of justice,
or demonstrated his actual innocence, Claim Three is defaulted and must be dismissed.
III. Standard of Review
When a state court has addressed the merits of a claim raised in a federal habeas corpus
petition, a federal court may not grant the petition on that particular claim unless the state court’s
adjudication was contrary to, or an unreasonable application of, clearly established federal law,
or was based on an unreasonable determination of the facts presented at the trial. 28 U.S.C. §
2254(d)(1)-(2).

This test erects a “formidable barrier to federal habeas relief” for claims

adjudicated on the merits. Burt v. Titlow, 134 S. Ct. 10, 16 (2013). Under this standard, for a
state prisoner to obtain habeas relief, he “must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Whether a state court decision is (1) “contrary to” or (2) “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 determination violates 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. When reviewing the state court’s

findings, the federal court is limited to the record before the state court at the time of the
decision. See Cullen v. Pinholster, 563 U.S. 170 (2011).
Under the “unreasonable application” standard, the writ should be granted only if the
federal court finds that the state court “identifies the correct governing legal principle from [the
9

United States Supreme] Court’s decisions but unreasonably applies that principle to the facts of
the prisoner’s case.” Williams, 529 U.S. at 413. Importantly, this standard of reasonableness is
an objective one. Id. at 409-10; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003). A federal
court reviewing a habeas petition “presume[s] the [state] court’s factual findings to be sound
unless [petitioner] rebuts ‘the presumption of correctness by clear and convincing evidence.’”
Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. 2254(e)(1)); see, e.g., Lenz v.
Washington, 444 F.3d 295, 300-01 (4th Cir. 2006).
IV. Analysis
A. Claim One
Petitioner argues that four of his convictions6 are void for lack of subject matter
jurisdiction because they are “predicated upon a facially unconstitutional statute,” the Virginia
anti-sodomy provision (Virginia Code § 18.2-361) as it existed when petitioner was convicted.7
Pet. at 37. Specifically, petitioner contends that because the Virginia anti-sodomy provision was
declared facially unconstitutional by the Fourth Circuit in MacDonald, petitioner committed no
felonies and the circuit court lacked subject matter jurisdiction over those four charges. Id. For
the reasons that follow, this flawed argument fails.
Petitioner first raised this claim in a Motion to Vacate Conviction filed in the Supreme
Court of Virginia, which was summarily denied. Petitioner raised this claim again in his state

6

Petitioner states that the circuit court did not have jurisdiction over the charges of conspiracy to
take indecent liberties with a minor in violation of Virginia Code §§ 18.2-26 and 18.2-370.1,
using a communications system to propose a sex act to a minor in violation of Virginia Code §
18.2-374.3, and two of the four counts of taking indecent liberties with a minor in a custodial or
supervisory role in violation of Virginia Code § 18.2-370.1.
7

At the time of petitioner’s conviction, the Virginia anti-sodomy provision read “[i]f any person
… carnally knows any male or female person by the anus or by or with the mouth, or voluntarily
submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony ….” Va. Code §
18.2-361(A).
10

habeas petition where it was dismissed on procedural grounds because petitioner raised the issue
“in the Supreme Court of Virginia by a motion to vacate the convictions, which the Court denied
on January 10, 2014.” Case No. 14-2657-00. The state habeas court also found that this
claim … fails because existing Virginia case law at the time of the petitioner’s
trial … was the published decision of the Court of Appeals in McDonald v.
Commonwealth, 48 Va. App. 325, 630 S.E.2d 754 (2007), which held the facial
challenge to Code § 18.2-361 was without merit. The Supreme Court of Virginia
later affirmed McDonald’s convictions for sodomy. … Since both the Supreme
Court of Virginia and the Fourth Circuit have spoken on this question, the Fourth
Circuit MacDonald decision is not binding precedent on this Court.
Id. The court went on to state that “[t]here is no merit to [petitioner’s] assertion that because [the
minor children] were over the age of 15, they were old enough to consent to engage in sexual
conduct.” Id. Finally, the state habeas court held that “under [Lawrence v. Texas, 539 U.S. 558
(2003)], the Commonwealth may prohibit sodomy with minors. … The petitioner has no
grounds for relief based on the Fourth Circuit’s decision. The trial court did not lack jurisdiction
over [petitioner’s] case and his convictions are not void.” Id.
Petitioner argues that the state habeas court’s decision was contrary to federal law
because his case is indistinguishable from MacDonald in that they both involve “convictions
predicated on the anti-sodomy provisions of § 18.2-361, where the complainants were older
minors within the age of consent.” Pet. Resp. to MTD at 27. Petitioner goes on to argue that the
state habeas court’s decision was contrary to Lawrence because the minors in his “case were 16
years old and legally within the age of consent [and therefore] they do not qualify as ‘minors’ in
this context, but rather have the same legal standing as would ‘consenting adults.’” Id. at 32.8

8

Petitioner’s arguments that the state habeas court’s decisions are contrary to Ulster Cnty. v.
Allen, 442 U.S. 140 (1979), and Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320
(2006), as relied upon in MacDonald are of no moment because (1) there is no issue regarding
petitioner’s standing and (2) there is no constitutional issue with the statutes under which
petitioner was convicted (and therefore, there is no need to limit the solution to the problem). In
11

Contrary to petitioner’s arguments, the instant petition is sufficiently distinguishable from
MacDonald such that it is not controlling. As background,
[i]n 2005, William Scott MacDonald was convicted … of two offenses: the
misdemeanor offense of contributing to the delinquency of a minor, in
contravention of Virginia Code section 18.2–371; and the felony offense of
violating the Commonwealth’s criminal solicitation statute, found in section 18.2–
29. The criminal solicitation statute provides that “[a]ny person age eighteen or
older who commands, entreats, or otherwise attempts to persuade another person
under age eighteen to commit [a predicate felony, i.e.,] a felony other than
murder,” shall be guilty of a felony. Va. Code § 18.2–29.
The predicate felony for MacDonald’s criminal solicitation offense was the
Commonwealth’s “Crimes Against Nature” statute, which criminalizes, inter alia,
“carnal knowledge” by one person of another by the anus or mouth, an act
commonly known as sodomy. Va. Code § 18.2–361(A).
MacDonald, 710 F.3d at 155–56 (alteration in original). More specifically, MacDonald, at age
forty-seven, propositioned a seventeen-year-old to perform an act that violated Virginia’s antisodomy provision. Id. at 156-57. MacDonald argued “that his criminal solicitation conviction,
insofar as it was predicated on the anti-sodomy provision of Virginia Code section 18.2–361(A),
contravened the Constitution.” Id. at 156. The Fourth Circuit held Virginia’s anti-sodomy
provision facially unconstitutional under Lawrence, in part because “the anti-sodomy provision,
like the statute in Lawrence, applies without limits.” Id. at 163, 165. The Fourth Circuit went on
to state that although Virginia may be able “to enact a statute specifically outlawing sodomy
between an adult and an older minor, . . . [t]he anti-sodomy provision does not mention the word
‘minor,’ nor does it remotely suggest that the regulation of sexual relations between adults and
children had anything to do with its enactment.” Id. at 165. Thus, because MacDonald’s
convictions were necessarily predicated on a facially unconstitutional statute, the matter was
remanded for habeas corpus relief. Id. at 167.

addition, petitioner’s discussion of the “mandate rule” is inapposite as there has been no mandate
from an upper court in this matter.
12

Petitioner’s convictions are distinguishable from MacDonald’s convictions. In this
respect, the flaw in petitioner’s argument is apparent: unlike Macdonald, petitioner’s convictions
are not predicated on Virginia’s anti-sodomy provision. To begin with, petitioner was not
convicted of violating the anti-sodomy statute held unconstitutional in MacDonald; rather,
petitioner was convicted of different statutes that refer to the anti-sodomy statute as describing
conduct that is illegal if directed at a child. Indeed, petitioner was convicted of violating Va.
Code §§ 18.2-370.1 and -374.3, which reference the anti-sodomy provision when listing
prohibited behavior directed against minors. And although a conviction under Va. Code §18.2-26
requires the defendant to have attempted to commit an underlying felony, in petitioner’s case, the
underlying felony was Va. Code § 18.2-370.1, not the anti-sodomy provision.
Indeed, the statutes under which petitioner was convicted are distinguishable from
Virginia’s anti-sodomy provision because they do not “apply without limits.” In fact, Virginia
Code §§ 18.2-370.1 and -374.3 are specifically limited to prohibiting certain behavior between
adults and minors. See e.g., Sadler v. Commonwealth, 276 Va. 762, 765 (2008) (“[T]he purpose
of [Virginia Code § 18.2-370.1] is to protect minors from adults who might exploit certain types
of relationships.”); MacDonald, 710 F.3d at 165 (contemplating that Virginia may “enact a
statute specifically outlawing sodomy between an adult and an older minor”). Put differently,
plaintiff was not convicted for engaging in consensual sodomy with a consenting adult, nor was
plaintiff convicted pursuant to a statute that “applies without limits” and failed “remotely [to]
suggest that the regulation of sexual relations between adults and children had anything to do
with its enactment.” MacDonald, 710 F.3d at 65. Rather, petitioner was convicted for (1)
conspiracy to take indecent liberties with a child, (2) using a communications system to propose
a sex act to a child, and (3) taking indecent liberties with a child in a custodial or supervisory
role.
13

Not surprisingly, nearly identical arguments to those raised by petitioner have been
routinely rejected in the wake of the Fourth Circuit’s decision in MacDonald. See Toghill v.
Clarke, 2016 WL 742123, at *7 n.10 (W.D. Va. Feb. 23, 2016) (“[M]erely referencing the acts of
sodomy listed in § 18.2-361 as being prohibited when directed at children in § 18.2-374.3(C)
does not render § 18.2-374.3(C) unconstitutional.”); Spiker v. Clarke, No. 7:15CV00379, 2016
WL 3189296, at *7-8 (W.D. Va. June 7, 2016) (similar), appeal dismissed, 2016 WL 6871955
(4th Cir. Nov. 22, 2016); see also Pooler v. Gilmore, No. 3:15CV146, 2015 WL 9459938 (E.D.
Va. Dec. 23, 2015). Put simply, the principles elucidated here, in MacDonald, and in the cases
cited above point persuasively to the conclusion that MacDonald provides petitioner no relief,
and that petitioner’s convictions were constitutional.
Accordingly, the state habeas court’s dismissal of petitioner’s first claim is neither
contrary to, nor an unreasonable application of, existing federal law and Supreme Court
precedent. Nor does it rest upon an unreasonable finding of fact. Thus, the state habeas court’s
ruling is entitled to deference, and Claim One will be dismissed.
B. Claim Two
Petitioner argues that his trial counsel was ineffective for three reasons. To prevail on an
ineffective assistance of counsel claim, petitioner must meet the two-pronged test established in
Strickland v. Washington, 455 U.S. 668 (1984). Under this test, petitioner must prove both that
his attorney’s performance was so deficient “that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment,” and that this performance prejudiced the outcome of
petitioner’s trial. Strickland, 466 U.S. at 687. To meet the second prong, petitioner must show
that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. The two prongs, deficient performance
and prejudice, constitute “separate and distinct elements.” Spencer v. Murray, 18 F.3d 229, 233
14

(4th Cir. 1994). Therefore, a court can appropriately dismiss an ineffective assistance of counsel
claim on either prong. Strickland, 466 U.S. at 697; see also Bell v. Cone, 535 U.S. 685, 695
(2002) (citations omitted) (“Without proof of both deficient performance and prejudice to the
defendant, we concluded it could not be said that the sentence or conviction resulted from a
breakdown in the adversary process that rendered the result of the proceeding unreliable, and the
sentence or conviction should stand.”). A court reviewing a claim of ineffective assistance of
counsel must presume that counsel acted competently, and should determine the merits of the
claim based on the information available to the attorney at the time of the trial. See, e.g., Bell,
535 U.S. at 695; Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000).
i. Juror Bias
Petitioner first argues that his trial counsel was ineffective because the “entire venire had
preconceived fixed opinions making them biased and partial and trial counsel failed to take
corrective action.” Pet. at 7. Specifically, petitioner argues that the jury believed that “any
sexual contact between an adult and a minor child under the age of 18 was illegal, which simply
was not an accurate statement of the law in Virginia, where the age of consent is 15.” Pet. Resp.
to MTD at 60. Petitioner states that this misunderstanding of the law was crucial because the
“only thing that made his alleged sexual contact with the 16 year-old victim in this case illegal
was the supposedly custodial nature of his relationship with her ….” Id. Petitioner goes on to
claim that his counsel’s failure to “explore the extent of the jurors’ bias, much less to ensure that
they could decide the case based on the law and the evidence” constitutes ineffective assistance
of counsel. Id. Petitioner argues that the state habeas court incorrectly applied Strickland and
“was plainly wrong to find incorrect the petitioner’s interpretation of the age of consent in
Virginia.” Id. at 61-62.

15

The state habeas court denied this claim because the prosecutor did not misstate the law
and, therefore, trial counsel was not ineffective for not objecting to the prosecutor’s questions
during voir dire. Case No. 14-2657-00. Specifically, the state court stated that petitioner’s
“assertion that the prosecutor misstated the law is based on [petitioner’s] mistaken belief that the
age of consent to sexual conduct in Virginia is 15 years. … [T]he petitioner’s interpretation of
the law is incorrect.” Id. The court also held that “conduct regarding voir dire … is a matter of
trial strategy.” Id. Accordingly, the state habeas court held that petitioner did not establish that
his trial counsel’s performance was deficient. Id. The court also held that petitioner had not
established that he was prejudiced because “the record does not show the jury was biased or that
[petitioner’s] trial was unfair. … All of the jurors indicated they understood the defendant was
presumed innocent and that the Commonwealth had to prove its case beyond a reasonable doubt,
and that they could be fair and impartial in rendering a verdict.” Id.
This court has previously held that a trial counsel’s decision to not make a frivolous
objection was not “‘outside the range of professionally competent assistance.’” Baker v. Dir.,
Va. Dep’t of Corr., 2014 WL 1305001, at *4 (E.D. Va. Apr. 1, 2014) (quoting Strickland, 566
U.S. at 688).

Because the prosecutor did not misstate Virginia law, any objection to his

questions would have been frivolous.9 Accordingly, the state habeas court’s finding that trial
counsel was not deficient for failing to object to the prosecutor’s questions during voir dire is
neither contrary to, nor an unreasonable application of, existing federal law and Supreme Court
precedent. Nor does it rest upon an unreasonable finding of fact. Accordingly, the state habeas
court’s ruling is entitled to deference, and subsection (a) of Claim Two will be dismissed.
9

For example, at the time of petitioner’s conviction “[a]ny person 18 years of age or older,
including the parent of any child, who … engages in consensual sexual intercourse with a child
15 or older not his spouse, child, or grandchild, shall be guilty of a Class 1 misdemeanor.” Va.
Code § 18.2-371; see, also, McDonald v. Commonwealth, 274 Va. 249 (2007) (rejecting the
argument that 15 years of age is the age of consent in Virginia).
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ii. Jury Instructions
Petitioner next argues that trial counsel was ineffective when he failed to object to four
contested jury instructions. Specifically, petitioner states that trial counsel was ineffective by
failing to (1) object in any way to the first three contested jury instructions because trial counsel
knew he had to object independently of co-defendant’s counsel, and (2) state a basis for his
objection to the fourth contested jury instruction because it misstated the law. Pet. Resp. to MTD
at 39.
The state habeas court denied this claim because “trial counsel reasonably presumed that
in a joint trial with a co-defendant, objections made by one party would apply to the other.”
Case No. 14-2657-00. The court also found that “the four instructions given in [petitioner’s]
case did not incorrectly state the law.” Id. Accordingly, the state habeas court found that
petitioner failed to satisfy either prong of the Strickland test. Id.
Petitioner argues that the state habeas court incorrectly applied Strickland by “indulg[ing]
in a prohibited ‘post-hoc rationalization’ for counsel’s conduct that contradicted the available
evidence of his actions” and that this Court is not bound by the state court’s finding that the law
in the jury instructions was correct, particularly because there is “strong reason to believe that the
Supreme Court [of Virginia] would have agreed with the petitioner on the issue of the jury
instructions had it deigned to reach it.” Pet. Resp. to MTD at 39-40, 46.
Petitioner has not established that counsel was deficient for failing to object to the first
three contested jury instructions. The Supreme Court of Virginia held, as a matter of first
impression on petitioner’s direct appeal, that “one party may not rely on the objection of another
party to preserve an argument for appeal without expressly joining in the objection.” Linnon, 287
Va. at 102. Because the law on this issue was unclear before the Supreme Court of Virginia’s
decision on petitioner’s direct appeal, it would have been reasonable for trial counsel to believe
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that co-defendant’s objections would have applied to petitioner based on the information
available to him at the time of the trial. Finally, even if counsel had objected to these three
contested jury instructions, his objections would have been futile because the trial court
overruled co-counsel’s objections. Therefore, the state habeas court did not incorrectly apply
Strickland by engaging in a post-hoc rationalization of counsel’s conduct.10 See Harrington, 562
U.S. at 110 (“Strickland, however, calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.).
As to the fourth contested jury instruction, petitioner has not established that he was
prejudiced by counsel’s failure to state the basis of his objection to this contested jury
instruction. Although the dissent in petitioner’s direct appeal stated that the fourth contested jury
instruction misstated the law, the Supreme Court of Virginia denied petitioner’s appeal of his
habeas petition. Accordingly, the state habeas court’s decision is the last reasoned decision on
this issue and its finding that the contested jury instruction does not misstate the law is imputed
to the Supreme Court of Virginia’s denial. See Ylst, 501 U.S. at 803. Therefore, petitioner has
not established that there is a reasonable probability that, but for counsel’s failure to state the
basis for his objection, the result of the proceeding would have been different.
The state habeas court’s decision that petitioner failed to satisfy the Strickland test for
failing to object to the contested jury instructions is neither contrary to, nor an unreasonable
application of, existing federal law and Supreme Court precedent. It also does not rest upon an
unreasonable finding of fact.

Accordingly, the state habeas court’s ruling is entitled to

deference, and subsection (b) of Claim Two will be dismissed.

10

Because petitioner has not established that trial counsel was deficient, there is no need to
address whether these instructions correctly stated the law.
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iii. Investigation
Petitioner finally argues that trial counsel was ineffective because, based on an
“incomplete or non-existent investigation,” counsel decided not to contact two witnesses who
would have presented exculpatory testimony. The state habeas court dismissed this claim,
finding that “[c]ounsel reasonably called as witnesses those persons he believed would be most
helpful to [petitioner’s] case. The habeas court should not second guess counsel’s decision.”
Case No. 14-2657-00.

In addition, the court noted that petitioner “told the trial court his

witnesses would be present, that he was ready for trial, and was ‘entirely satisfied’ with his trial
attorney. [Petitioner] is bound by his representation.” Id. Finally, the state habeas court held
that “petitioner’s claims … should be rejected because [he] has not provided affidavits from [the
witnesses] to establish that they would have testified consistently with his assertions.”

Id.

Accordingly, the state habeas court held that “petitioner has not shown his attorney’s
performance was deficient or that the result of the trial would have been different but for the
alleged error.” Id.
Petitioner argues that the state habeas court findings were either incorrect or unreasonable
applications of federal law. Specifically, petitioner asserts that the state habeas court incorrectly
applied Strickland because it did not evaluate trial counsel’s investigation leading to his decision
not to call the two witnesses; therefore, the state court incorrectly found that trial counsel’s
decision not to call the two witnesses, who would have put A.G.’s credibility into question, was
reasonable. Pet. Resp. to MTD at 75-77. Petitioner goes on to argue that trial counsel was
ineffective because he did not investigate what the two witnesses would have testified to. Id. In
addition, petitioner asserts that his expression of satisfaction with trial counsel at trial has no
bearing on whether counsel was effective. Pet. Resp. to MTD at 85-86. Finally, petitioner
argues that the state habeas court incorrectly (1) required him to prove that the trial results would
19

have been different if the witnesses had testified, rather than only having to show that there was a
reasonably probability that the trial results would have been different, and (2) refused to take his
assertions as to what the witnesses’ testimony would have been as true, as required on a
summary dismissal of his state habeas petition. Pet. Resp. to MTD 88, 90.
“’[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.

In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.’” Wiggins v.
Smith, 539 U.S. 510, 521–22 (2003) (quoting Strickland, 455 U.S. at 690-91). “Decisions about
what types of evidence to introduce are ones of trial strategy, and attorneys have great latitude on
where they can focus the jury’s attention and what sort of mitigating evidence they can choose
not to introduce.” Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (quotation marks and
citations omitted). The record establishes that petitioner informed counsel of what he believed
the two witnesses at issue would testify to at trial. Accordingly, trial counsel could have made a
strategic decision not to call the two witnesses in question after having learned what they would
testify to from petitioner.11 Thus, the state habeas court’s finding that trial counsel was not
deficient for deciding not to have the two witnesses in question testify is neither contrary to, nor
an unreasonable application of, existing federal law. Additionally, the state habeas court’s
determination does not rest upon an unreasonable finding of fact. Accordingly, the state habeas
court’s ruling is entitled to deference and subsection (c) of Claim Two will be dismissed.

11

Although couched in terms of counsel’s lack of investigation, petitioner’s argument actually
appears to be that counsel unequivocally should have called these two witnesses.
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V. Pending Motions
On November 15, 2016, petitioner filed a Renewed Motion for Release on Bail Pending
Disposition of 28 U.S.C. § 2254 Petition. Dkt. No. 31. Because the habeas petition will be
dismissed with prejudice, this motion will be denied as moot
On November 15, 2016, petitioner filed a Motion for Evidentwy Hearing. 0kt. No. 32.
Because the state habeas court decided petitioner's claims on the merits, an evidentiary hearing
is not appropriate in this matter. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("[R]eview
under § 2254(d)(l) is limited to the record that WE before the state comt that adjudicaled the
claim on the merits."}. Accontingly, this motion will be denied.
VI. Cond11sion
Petitioner's Claim Three is procedurally barred. As to Claims One and Two, nothing in
the state court record indicates that the state habeas court's decisions were contrary to or an
wueasonable application of existing federal law and Supreme Court precedent. There is also
nothing in the record to mdicate that the decisions rest upon an unreasonable finding of fact.
Accordingly, this petition will be dismissed, with prejudice, by an Order to be issued with this
Memorandum Opinion. Finally, petitioner's Renewed Motion for Release on Bail Pending
Disposition of28 U.S.C. § 2254 Petition and Motion for Evidentiary Hearing will be denied.

Alwmd.ria. Virginia
January 30, 2017
T. S. Ellis. 111
United Statt:s o· trict Jud�e

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