Pulley v. Clarke

Filing 13

MEMORANDUM OPINION re: re: Respondent's Motion to Dismiss. Signed by District Judge Liam O'Grady on 03/21/17. (pmil, )

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IN THE UNITED STATES DISTMCT COURT Fi3BJrHE_^ li EASTERN DISTRICT OF VIRGINIA Alexandria Division Jerome Pulley, Petitioner, ' ) ' ) =3- ^ , |||||^ 2 i 2017 > ^ ~ ) V. ) Harold Clarke, Respondent l:16cvl065(LO/JFA) ) ) ) MEMORANDUM OPINION Jerome Pulley, a Virginia inmate proceeding pro has filed a petitionfor a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions entered in the Circuit Court for Prince William County. Respondent filed a Motionto Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Dkt. Nos. 6-8. Petitioner filed a Response to Respondent's Brief in Support of Rule 5 Answer and Motion to Dismiss. Dkt. No. 10. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice. I. Background Petitioneris detained pursuantto a finaljudgment ofthe Circuit Court for Prince William County, entered September 18,2014. Record No. 151915. Pursuant to a bench trial, petitioner was convicted of four counts of aggravated sexual battery in violation of Virginia Code § 18.267.3, two counts of indecent liberty in violation of Virginia Code § 18.2-370.1, two counts of inanimate objectpenetration in violation of Virginia Code § 18.2-67.2, and two countsof forcible sodomy in violation of Virginia Code § 18.2-67.1. Id He was sentencedto three hundred and ninety years imprisonment, with two hundred and tenyears suspended. Id After petitioner was convicted, he moved for the appointmentof different counsel for appeal. Id The trial court denied petitioner's motion, and trial counsel, Robert Gregory, was assigned as court appointed appellate counsel. Id Petitioner pursued a directappeal to the Court of Appeals of Virginia where Gregory filed a briefanda motion to withdraw as counsel pursuant to Anders v. California. 386U.S. 738 (1967) andAkbar v. Commonwealth. 7 Va. App. 631 (1989). Record No. 1842-14-4. In the brief, Gregory listed "areas in the record that might arguably support the instant petition for appeal." Id Gregory also filed several motions for an extension of tune for petitioner to file a pro ^ supplemental petitionfor appeal, each of which was granted by the Courtof Appeals of Virginia. Id Ultimately, petitioner was granted until June 15,2015, to file his pro ^ supplemental petition for appeal. Id Priorto June 15,2015, petitioner retained attorney John Sheldon to represent him on appeal. Record No. 151915. Gregory gave a copy of petitioner's casefile andtranscripts to Sheldon; however, Sheldon stopped representing petitioner whenpetitioner was unable to pay the fees,^ and petitioner never filed a supplemental pro se petition for appeal in the Court of Appeals of Virginia. Id By Order dated August 19,2015,the petition for appeal wasdenied and Gregory's motion to withdraw was granted. Id Petitioner didnot file a direct appeal to the Supreme Court of Virginia. On November 4, 2015, petitioner senta letterto Gregory requesting a copy of his casefile andtranscripts. Record No. 151915. On November 15,2015, Gregory responded to petitioner stating that he wouldsend the documents requested, and thathe had already sent these documents to "attorney Sheldon at his and [petitioner's] request." Id ' Sheldon never noted his appearance in petitioner's appeal in the Court ofAppeals of Virginia. After pursuing his direct appeal, petitioner timely filed a petition for a writ ofhabeas corpus inthe Supreme Court ofVirginia. Petitioner asserted the following claims inhis state habeas petition. • Two claims that trial counsel was ineffective due to conflicts of interest. • The trial court erredin denying petitioner'smotionfor new trial counsel. • The trial court erred in denying petitioner'smotionfor new "conflict-free" appellate counsel. • Petitioner was denied effective assistance of counsel when Gregory failed to provide himwithhis casefile andtranscripts which were necessary for petitioner's pending appeal. • Petitioner was denied effective assistance of counsel when Sheldon failed to provide himwith his casefile andtranscripts which were necessary for petitioner's pending appeal. Id Attached to the Commonwealth's motion to dismiss filed inthe Supreme Court ofVirginia was an affidavit of Gregory. In the affidavit, Gregory statedthat the onlyrequest that [he] received for transcripts during the pendency of the appeal was a request to send the transcripts to [] Sheldon. This was done. [He] ... received subsequent request[s] forthe transcript fi*om [petitioner]. They were packed and mailed to [petitioner], but the[y] were refused and returned to [Gregory] as "unordered." [Gregory] wrote to [petitioner] to ask for an explanation, but he refused [Gregory's] letter. Id. The Supreme Court ofVirginia denied the habeas corpus petition by Order dated July 5,2016. Id On August 7,2016, petitioner filed theinstant federal petition, wherein he challenges his convictions on the following three grounds. Claim One: Petitioner ... was deprived of a full and fair direct appellate review of histrial, convictions, and sentences in violation of his [First, SixA, and Fourteenth] Amendment Rights bythe trial court's refusal to grant his request/demand for the substitution and appointment of a new conflict-fi*ee appellate attorney toprepare and file his petition for appeal tothe Virginia Appellate Court System. Claim Two: Petitioner ... was deprived of his constitutional rights to prepare and have a full and fair direct appellate review of his trial, conviction(s), and sentencing by the ineffective assistance of his appellate counsel, who failed to provide him with therelevant trial transcripts necessary forhispending appeal after withdrawing from the case, in violation of his [First, Sixth, and Fourteenth] Amendment Rights. ClaimThree: Petitioner ... was deprived of his constitutional rights to have had a full and fair directappellate reviewof his trial and sentencing by the ineffective assistance of counsel who refused and failed to turnover [sic] his casefile and relevant trial and sentencing transcripts necessary for his pending direct appeal in violation of his [First, Sixth, and Fourteenth] Amendment Rights. Dkt. No. 1. II. Procedural Bar Wherea 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. ^ 28 U.S.C. § 2254(d); Clanton v. Muncv. 845 F.2d 1238,1241 (4th Cir. 1988). First, the state court must explicitly rely ontheprocedural ground to deny petitioner relief S^ Ylstv. Nunnemaker. 501 U.S. 797, 802-03 (1991); Harris v. Reed. 489 U.S. 255,259 (1989). Second, the state procedural rule used to default petitioner's claimmust be an independentand adequate state ground for denying relief. S^ Harris. 489 U.S. at 260; Ford v. Georgia. 498 U.S. 411,423-24 (1991). When thesetwo requkements have beenmet, federal courts may not reviewthe barred claimabsenta showing of cause and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris. 489 U.S. at 260. The state habeas court held that petitioner's first claim was "barred because this non- jurisdictional issue could have been raised ondirect appeal and, thus, it is not cognizable in a petition for a wnt of habeas corpus." Record No. 151951 (citing Slavton v. Parrigan. 215 Va. 27,29 (1974), cert, denied. 419 U.S. 1108 (1975)). The Fourth Circuit has consistently held 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). Therefore, the Supreme Court of Virginia'sexpress finding that Slavton barred review of petitioner's first claim also precludes federal review of this claim, absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Clanton. 845 F.2d at 1241; 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 noveltyof the claim. S^ Colemanv. Thompson. 501 U.S. 722,753-54 (1991); Clozzav. Murrav. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton. 845 F.2d at 1241-42. In his response to the Motion to Dismiss, petitioner doesnot address his first claim. Therefore, because petitioner has made no argument establishing either the cause or prejudice requirement, or demonstrating his actual innocence. Claim One is defaulted and will 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)(l)-(2). This test erects a "formidable barrier to federal habeas relief for claims adjudicated onthe 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 injustification that there was an error well 2 Infact, petitioner does not discuss his first claim in any pleading. understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter. 562 U.S. 86,103 (2011). The evaluation of whether a state court decision is "contrary to" or"an unreasonable application of federal law is based upon an independent review of eachstandard. Williams V. Taylor, 529 U.S. 362,412-13 (2000). Astate court determination violates the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court ona question oflaw orifthe state court decides a case differently than [the United States Supreme] Court has ona set ofmaterially indistinguishable facts." Id at413, When reviewing the state court's findings, the federal court is limited to the record before the state court at the time of thedecision. See Cullen v. Pinholster. 563 U.S. 170 (2011). Under the"unreasonable application" clause, thewrit should be granted if thefederal court finds that the state court "identifies the correct governing legal principle from [the United States Supreme] Court's decisions butunreasonably applies thatprinciple to the facts of the prisoner's case." Williams. 529 U.S. at 413. Importantly, this standard of reasonableness is an objective one, and does not allow a federal court to review simply forplain error. Id,at 409-10; also Lockver v. Andrade. 538 U.S. 63, 75 (2003). In addition, a federal court should review the state court determination with deference; a federal court cannot grant the writ simply because it concludes that the state court incorrectly determined the legal standard. Soe Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). A federal court reviewing a habeas petition "presume[s] the [state] court's factual findings tobesound 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)); 2006). ^ Lenz v. Washington. 444 F.3d 295, 300-01 (4th Cir. IV. Analysis To prevail on an ineffective assistance of counsel claim, a petitioner must meet the two- pronged test established in Strickland v. Washington. 466U.S. 668 (1984). Under this test, a petitionermust prove both that his attorney's performance was so deficient"that coimsel was not functioning as the 'counsel' guaranteed bythe Sixth Amendment," and thatthisperformance prejudicedthe outcome of petitioner's trial. Strickland. 466 U.S. at 687. To meet the second prong, petitionermust show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding wouldhave been different." Id at 694. The two prongs, deficient performance and prejudice, constitute "separate and distinct elements." Spencer v. Murrav. 18F.3d229,233 (4th Cir. 1994). Therefore, a court canappropriately dismiss an ineffective assistance of counsel claimon eitherprong. Strickland. 466 U.S. at 697; seealso Bell v. Cone. 535 U.S. 685,695 (2002) (internal citations omitted) ("Without proofof 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 shouldstand"). 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. S^, Bell. 535 U.S. at 695; Burket v. Aneelone. 208 F.3d 172,189 (4th Cir. 2000). The state habeas court dismissed petitioner's second and third claims, holding thathe failed to satisfy the prejudice prong of the Strickland test. Specifically, the state habeas court found that, [a]ssuming without deciding counsel may render deficient performance bynot timely complying v^dth a client's request for his case file sothat hemay prepare his supplemental petition for appeal, petitioner has failed to articulate any claim, potentially meritorious or otherwise, he might have raised in a prose appellate petition. Thus, petitioner has failed to demonstrate that, but for counsel's alleged errors, the resuh ofthe proceeding would have been different. Sqq United States V. Basham. 789 F.3d 358, 382-89 & n.l4 (4th Cir. 2015) (declining to determine whether counsel rendered deficient performance when he failed to provide his former client's appellate counsel with the case file because there was no evidence counsel's neglect caused appellate counsel to missany potentially meritorious issue for appeal). Record No. 151915. Petitioner argues that his second and third claims [d]erive fi*om the fact that he was denied and deprived of his fundamental constitutional rights to have beenprovided with his trialtranscripts in order for him to have perfected and filed a pro^ appellate briefin a timely manner after hisappellate counsel filed an Anders briefand withdrew from his case pending appeal. A second appellate counsel alsorefused his transcripts [sic]. Dkt. No. 3, Petitioner goes onto argue that the state habeas court denied his claims despite "being shown clear evidence ofthe fact that he had been denied hisrights to his trial transcripts so thathe could prepare and file a [pro ^ appellate brief...." Id Accordingly, petitioner asserts, the state habeas court's dismissal was an unreasonable application of Strickland because counsels' failure to provide petitioner with his transcripts meets the deficiency prong. Id. Finally, petitioner argues that the state habeas court's finding that petitioner failed to satisfy the prejudice prong ofthe Strickland test is based ona misplaced reliance on Basham and is contrary to the holding in Rodriguez v. United States. 395U.S. 327 (1969). Dkt. No. 10. Petitioner is incorrect that Basham is distinguishable. In Basham. the Fourth Circuit held thatthe petitioner had notestablished that he was prejudiced byhis counsel's "refusal to surrender possession ofthe file" because petitioner "had not identified any particular argument that appellate counsel failed to raise because [prior counsel] retained the physical file." Rasham 789 F.3d at 388. The Fourth Circuit also held that the petitioner was unable to "show a reasonable probability that the result of the proceedings would have been different" wherethe record establishedthat "Basham's appellate lawyers made deliberate and considered decisions in selecting which claims to pursue" on appeal. Id at 389. Here, the record establishes that, on direct appeal, Gregory filed a brief in which he listed areas in the record that could have arguably supported the petition for appeal in the Court of Appeals of Virginia. Like in Basham. petitionerhas not identifiedother claims that could have been raised if he hadbeen given access to the transcripts andcasefile. Accordingly, petitioner has not established that thereis a reasonable probability that, but for Gregory and Sheldon's refusal to givepetitioner his casefile andtranscripts, the resultof his petition for appeal would have been different. Finally, the holdings in Basham were in no way basedon the fact that Basham had appellate counsel. Thus, the factthat petitioner is proceeding pro se doesnot make Basham distinguishable. Petitioner's reliance on Rodriguez is misplaced as it is inapposite. Rodriguez was initially denied habeas relief for his trial counsel's failure to timelyfile a directappeal because he did not "disclose what errors [he] wouldraise on appeal and to demonstrate that denial of an appeal had caused prejudice." Rodriguez. 395 U.S. at 329. The United States Supreme Court reversed, holding that "[t]hose whose right to appeal has been fiiistrated should be treated exactly like any other appellants; they should notbe given an additional hurdle to clear just because theirrights were violated at some earlier stage in the proceedings." Id at 330. Here, however, petitioner's right to appeal was notfiiistrated, and he was not in the same position as Rodriguez, because hisappeal was timely filed. Therefore, Rodriguez is distinguishable. Accordingly, the state habeas court's determination thatpetitioner failed to establish the prejudice prong ofthe Strickland test is neither contrary to, nor an unreasonable application of. existing federal law. The state habeas court's determination also does not rest on an unreasonable finding of fact. Accordingly, the state habeas court's ruling is entitled to deference and Claims Two and Three will be dismissed. V. Conclusion Petitioner's Claim Oneis procedurally barred. As to Claims Two andThree, nothing in the statecourtrecord indicates thatthe statecourtdecision was eithercontrary to, or an unreasonable application of, clearly established federal law, nor did the decision involve an unreasonable determination of the facts. Accordingly, this petition will be dismissed, with prejudice, by an Order to be issued withthis Memorandum Opinion. Entered this 1 day of. 2017. Alexandria, Virginia Liain O'Grady Uniicd Stales Dis^ 10 udge

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