Brown v. Johnson

Filing 11

REPORT AND RECOMMENDATIONS re 7 MOTION to Dismiss filed by Gene M. Johnson, 1 Petition for Writ of Habeas Corpus filed by Michael Ray Brown. Signed by Magistrate Judge F. Bradford Stillman and filed on 3/3/09. (lhow, )

FILED
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division
MICHAEL RAY BROWN, #369717,
CLERK, U.S. DISTRICT COURT
NORFOLK. VA

Petitioner,

v. GENE M. JOHNSON, Director of the Virginia Department of Corrections,
Respondent.

CIVIL ACTION NO.

2:08cv544

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This

matter was

initiated by petition

for

a writ

of

habeas

corpus

under

28

U.S.C.

§

2254.

The matter was
Judge, and (C),

referred
pursuant

to
to

the
the

undersigned

United

States §

Magistrate

provisions of 28 U.S.C.

636(b)(l)(B)

Rule 72(b)

of the

Federal Rules of Civil Procedure,

and Rule 72 of the Local Civil

Rules of the United States District Court for the Eastern District
of Virginia.
that

For the reasons stated herein,

the Court recommends
corpus be DENIED.

the instant petition for a writ of habeas
I. STATEMENT OF THE CASE

A.

Background.

On or about September 13,
("Brown"), was arrested and

2003,

Petitioner,

Michael Ray Brown
burglary and

charged with

statutory

grand larceny.
2 004, Brown was

Brown

remained in
in the

jail

until

trial.
for

On May
the

28,

convicted,

Circuit of one

Court (1)

City of

Norfolk,

Virginia

("Circuit Court"),
(1)

count of statutory
CR03004470).

burglary and one

count of grand larceny

(Case No.

Brown was sentenced to serve five (5)

years in prison for statutory-

burglary and five (5) years in prison for grand larceny.

The trial

judge suspended the five (5) year sentence for statutory burglary,
suspended two (2) years and six (6) months of the grand larceny

sentence,

and granted Brown credit for time already served.

Brown

was

additionally

placed

on

probation

for

ten

(10)

years

with

indeterminate supervised probation.

On June 18,

2004,

Brown noted his appeal to the Virginia Court

of Appeals.

On November 23,

2004,

the Court of Appeals remanded

the case to the Circuit Court.
June 17, 2005. That court

The Circuit Court held a hearing on
vacated Brown's conviction for the

charge of Grand Larceny and found Brown guilty instead of
Larceny. Brown was sentenced to twelve

Petit

(12) months in jail for the

Petit Larceny conviction.

Because Brown had at that point already

served the twelve (12) month sentence, he was subsequently released

from jail on or about June 28,
On or about November 6,

2005.1
2006, Brown was arrested on a

probation violation. Court found
the

On or about be

February 9, of his

2007,

the Circuit and re-

Brown
five

to
(5)

in violation
year suspended

probation
for

imposed

sentence

statutory

burglary,

re-suspending

two

(2)

years.

The

Circuit

Court

additionally gave Brown credit for time already served.

The official court order was not issued until July 28,

2005

On or about September 6, 2007, Brown filed a petition for writ
of habeas corpus, pro se. in the Circuit Court. Case No.

CR03004470-00-02/F03.

Brown argued that the excess time he served

for

the petit

larceny charge

-

that

is,

the

time he

served in
should be
statutory

excess of

the twelve month sentence
the three year

finally imposed for

credited against

reimposed sentence

burglary.

On

or

about

November
It

29,

2007,

the

Circuit

Court

dismissed Brown's petition. appeal the dismissal,

appears

that Brown attempted to

but Brown did not file a petition for appeal
On May 6, 2008, the Clerk of

with the Supreme Court of Virginia.

the Supreme Court of Virginia wrote Brown a letter indicating this
fact, advised that the time for perfecting his appeal had passed,

and returned to Brown the Circuit Court record and transcripts.
On May corpus 27, 2008, Brown filed a petition for writ of habeas

in the Supreme Court of Virginia,

apparently invoking that

court's

original

habeas

corpus

jurisdiction.

This

petition

essentially argued the same matters as Brown's Circuit Court habeas
case namely, that Brown's time served was not accurately

calculated.

On September 26,

2008,

the Supreme Court of Virginia
pursuant to Va. Code §

dismissed the petition on the ground that,

8.01-654(B)(2),

Brown had knowledge

of

the

factual

basis

of

his

allegations at the time of filing the previous petition for a writ
of habeas corpus in the Circuit Court.

On November

14,

2008,

while

in

the custody of

the Virginia

Department of Corrections

at

the Coffeewood Correctional

Center,

Brown executed the instant corpus pursuant to 28

federal petition for a writ of habeas § 2254. On December 23, 2008,

U.S.C.

Respondent

filed

his

Rule

5

Answer

and

Motion

to

Dismiss, of Motion
to

accompanied by a
Pursuant to

supporting memorandum,
Rule 7(K). Brown

and a Notice
filed his

Local

response

Respondent's Motion to Dismiss on January 16,
B. Grounds Alleged

2009.

Brown alleges he is entitled to relief under 28 U.S.C.

§ 2254

because

(1)

his Fourteenth Amendment rights not to have multiple
{2) his Eighth unusual falsely

punishments for the same crime have been violated; and Fourteenth have
(3)

Amendment been

rights

against he

cruel is

and being

punishment
imprisoned;

violated

because

his right to proper time served credits under Va.

Code

§

53.1-187 has been violated and thus his Fifth,

Sixth,

and

Fourteenth
Fourteenth
process

Amendment
Amendment

rights
and

have

been

violated;

and
rights
All of

(4)
to

his
due

Virginia

constitutional

and equal protection have been violated.

Brown's

claims

center

upon

Brown's

assertion

that

his

credits

for

time

served have not been properly calculated.
II. FINDINGS OF FACT AMD CONCLUSIONS OF LAW

A.

Exhaustion and Procedural

Default

Respondent asserts

that while Brown's petition is exhausted,

it is nonetheless procedurally defaulted.

4

In order for the Court to address
petition,

the merits of this habeas
See 28 U.S.C.

all of Brown's claims must be exhausted.

§ 2254.

The exhaustion requirement is satisfied when "allegations
. . [are] the same as those advanced at
Pruett v. Thompson, 771 F.

advanced in federal court .

least once to the highest state court."

Supp.
1993).

1428,

1436

(E.D.

Va.

1991),

aff'd 996

F.2d 1560

{4th Cir.

Exhaustion may be accomplished either on direct appeal or See 0'Sullivan v. Boerckel, 526

in post-conviction proceedings.

U.S.

838,

844

(1999)

(citing Brown v.
French.

Allen.
F.3d

344
603,

U.S.

443,

447
(4th

(1953));

see also

Skipper v.

130

610 n.4

Cir.

1997).

In order for a claim to be considered exhausted,

it

must be

nfairly presented to the state courts," which means

"that

both the operative facts and the controlling legal principles must be presented to the state court." 910-11 (4th Cir. 1997) Matthews v. omitted). Evatt, 105 F.3d 907, exhaustion

(quotations

w[T]he

requirement for claims not fairly presented to the state's highest
court is bar technically met when if the ... a state procedural rule would later presented to the state

consideration id. at 911

claim was

court,"

(citations omitted); and barred

such claims are treated as this Court's
2000).

procedurally
Claaett v.

defaulted
209

from

review.

Anaelone,

F.3d 370,

378-79

(4th Cir.

Further,
highest

if

any

of

Brown's

claims

were

presented

to

the

state court,

but were not

addressed on

the merits by that

court because they were procedurally barred in state court pursuant

to an adequate and independent state procedural rule,

the claims

are exhausted, but the procedural default prevents federal habeas
review of the merits. Coleman v. Thompson, 501 U.S. 722, 750

(1991).
has

The United States Court of Appeals for the Fourth Circuit
Code § 8.01-654 (B) (2)2 E.g.. to be an adequate and 915

held Virginia

independent state procedural rule.

Bassett v. Thompson.

F.2d

932,

936-37

(4th

Cir.

1990).

A

state

court's

finding

of

procedural default that rests upon a determination of state law is
unreviewable even if the state court clearly misapplied state law.

See Gilbert v. Moore,
Here,

134 F.3d 642,

657 n.14

(4th Cir.

1998).

Brown failed to perfect his appeal to the Supreme Court

of Virginia from his petition for a writ of habeas corpus Circuit
habeas

in the of

Court.
corpus in

Brown
the

filed
Supreme

a

separate
of

petition

for
but

a

writ

Court

Virginia,

that

court

dismissed the petition pursuant to Virginia Code § 8.01-654(B)(2),
which is an 915 adequate F.2d at and independent This state procedural review rule. that

Bassett,

936-37.

Court

cannot

determination. claims

Gilbert,

134 F.3d at 657 n.14.

Therefore,

Brown's

are procedurally defaulted.
B. Cause and Prejudice

Although

Brown's

claims

are

procedurally

defaulted,

he

may

still obtain review of his claims if he can establish either:

(1)

2 Section 8.01-654(B)(2) states that "[n]o writ shall be granted on the basis of any allegation of facts of which petitioner
had knowledge at the time of filing any previous petition."

cause for the default and demonstrate actual prejudice as a result
of the alleged violation of the claim will federal in a law, or (2) that failure to of

consider

result

fundamental

miscarriage

justice because he is actually innocent of the crime for which he
is convicted. Claaett, 219 F.3dat 379{citing Coleman, 501 U.S. at

750); Weeks v. Anaelone,

176 F.3d 249,

269

(4th Cir. 1999). Wright

v.

Anaelone.

151
Zant,

F.3d

151,

160
467,

n.5
493-94

{4th

Cir.

1998)

(quoting

McCleskev v.

499 U.S.

(1991)).

Cause refers to

"some

objective

factor

external

to

the

defense"

that

impeded
Greene,

compliance with the State's procedural rule.

Strickier v.

527 U.S.
478, 488

263,

283 n.24

(1999)

(quoting Murray v. Carrier.

477 U.S.

(1986)).

Objective factors that may constitute "cause" include: (1) "interference by officials that makes compliance with the State's procedural rule impracticable"; (2) "a showing that the factual or legal basis for a claim was not reasonably available to counsel"; (3) the novelty of the claim; and (4) constitutionally ineffective assistance of counsel. Wright, 151 F.3d at 160 n.5 (quoting McCleskev v. Zant. 499 U.S.

467,

493-94

(1991)) .

An absence of due diligence by the petitioner See Hoke v. Netherland. 92 F.3d

will defeat an assertion of cause. 1350, 1354 n.l (4th Cir. 1996).

It is Brown's burden to establish

the miscarriage of justice exception by providing new evidence that but for the asserted constitutional errors, no reasonable juror

would

have

found

the

petitioner
761

guilty.

See

Hazel

v.

United

States.

303 F.Supp.2d 753,

(E.D. Va. 2004)

(citing the standard

established
(1979)

in

Jackson
J.,

v.

Virginia.

443

U.S.

307,

401-02,

429

(White,

concurring)).

It appears that Brown seeks to establish cause for failure to

comply with Virginia Code § 8.01-654(B)(2) .

Brown argues

(1)

that

the

Norfolk

Public

Defender's
jail

office
credits;

did
(2)

not
that

assist

Brown
in

in
the

properly determining his

letters

record show that certain facts were not available to Brown at the
time of his first state habeas petition; and (3) that there were

problems

communicating

with

the

Circuit

Court,

which

in

turn

affected his ability to perfect his appeal.

First,

there

is

no

evidence

in the

record that

the Norfolk

Public Defender's office in any way failed in its duty to assist
Brown; indeed, Brown has not alleged ineffective assistance of

counsel.

Second,

there are no

facts

that were not

available to

Brown at the time of his original habeas petition relating to his current claims. Brown's main argument appears to be that he could

not allege he was being unconstitutionally held in jail until after the date he believes he was his calculation of his supposed to be released according to credits. The underlying facts

jail

regarding his jail credits, however, were available to him prior to
his original habeas petition. Additionally, while Brown's argument the Court notes

aligns with the second factor mentioned in Wright,

that finding cause on this ground would effectively void the Fourth

Circuit's ruling in Bassett, 915 F.2d at 936-37, that Virginia Code

§ 8.01-654(B)(2)

is an adequate and independent state law ground;

comity suggests that this Court may defer to the Supreme Court of
Virginia's analysis on the same legal topic. Finally, Brown's

third argument is speculative and lacks factual foundation.
Therefore, Brown has failed to prove cause or prejudice and,

accordingly,
Accordingly,

Brown's

claims

remain

procedurally

defaulted.3

the Court recommends that Brown's entire petition be

DENIED and DISMISSED.
III. RECOMMENDATION

For the foregoing reasons, having denied Brown's motion for an

evidentiary hearing,

and having

found

that

Browns's

claims

are

procedurally defaulted pursuant to independent and adequate state

law,

the

Court

recommends

that

Brown's

petition
motion
be

for
to

a writ
dismiss

of
be

habeas

corpus be DENIED,
and that all

that
of

Respondent's
claims

GRANTED,

Brown's

DISMISSED

WITH

3 Furthermore, even assuming Brown's claims are not procedurally defaulted, Brown would nevertheless not succeed on the

merits. It is well-established, as a general rule, that a prisoner cannot "bank" excess time served on one sentence and apply that
excess time served as credit to an independent sentence. See, e.g. , Brvant v. Warden. Metropolitan Correctional Center of New

York Citv.

776 F.2d 394,

396

(2d Cir.

1985);

Bowen v.

Murphy.

693

F.2d 104, 106 (10th Cir. (4th Cir. 1971) . Here,
larceny sentence and,

1982); Miller v. Cox. Brown served excess

443 F.2d 1019, 1021 time on his petit

because his

statutory burglary sentence was

originally suspended, was released from incarceration. Brown was subsequently arrested on a probation violation, and, as a result, his statutory burglary sentence was re-imposed, its suspension lifted. Because his statutory burglary sentence is independent of, and was imposed subsequent to, his petit larceny sentence, Brown cannot apply credit for excess time served on his petit larceny
sentence to his statutory burglary sentence.

PREJUDICE.

Brown has failed to demonstrate "a substantial showing of the denial of a constitutional right." Therefore, it is recommended

that the Court decline to issue any certificate of appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure.
See Miller-El v. Cockrell.
IV.

537 U.S.
REVIEW

322,

335-36

(2003).

PROCEDURE

By copy of
notified that:

this

Report

and Recommendation,

the parties

are

1.

Any party may serve upon the other party and file with the

Clerk specific written objections recommendations within ten (10)

to

the

foregoing findings

and

days

from the date of mailing of
see 28 U.S.C. § 636{b)(l)(c)

this report to the objecting party,

and Fed.

R.

Civ.

P.

72(b),

computed pursuant to Rule 6(a)

of the

Federal Rules of Civil Procedure, plus three (3)
Rule 6(e) of said rules.

days permitted by

A party may respond to another party's

specific objections within ten (10) days after being served with a
copy thereof. See Fed. R. Civ. P. 72(b).

2.
those

A district
portions of

judge shall make a de novo
this report or

determination of
findings or

specified

recommendations
further
findings

to

which

objection
to
set

is

made.
timely
above

The

parties
to

are
the
in a

notified
and

that

failure

file
forth

objections
will

recommendations

result

waiver of the right to appeal from a judgment of this Court based

10

on such findings and reconunenda t ions.
(1985); Carr v. Hutto,
v. Schronce,

Thomas v. Arn. 474 U.S.

140

737 F.2d 433
(4th Cir.

(4th Cir.
1984) .

1984); United States

727 F.2d 91

UNITED STA'SES MAGISTRATE JUDGE

Norfolk,

Virginia

March 3, 2009

11

CLERK'S MAILING CERTIFICATE

A copy of the foregoing Report and Recommendation was mailed
this date to the following:
Michael Ray Brown, #369717 Coffeewood Correctional Center

12352 Coffeewood Drive
Culpeper,
PRO SE

VA 22729

Mark Ralph Davis

Office of the Attorney General
900 E Main St Richmond, VA 23219 Counsel for Defendant

Fernando Galindo,
Clerk of Court

eputy Clerk

March -3 , 2009

12