Pulley v. Clarke
MEMORANDUM OPINION re: re: Respondent's Motion to Dismiss. Signed by District Judge Liam O'Grady on 03/21/17. (pmil, )
IN THE UNITED STATES DISTMCT COURT Fi3BJrHE_^
EASTERN DISTRICT OF VIRGINIA
, |||||^ 2 i 2017
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.
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
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
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"
• 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
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]
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
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
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.
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));
Lenz v. Washington. 444 F.3d 295, 300-01 (4th Cir.
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
[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
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.
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.
Uniicd Stales Dis^
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