Ramsey v. Runion
Filing
30
OPINION and FINAL ORDER: It is, therefore, ORDERED that the petition (ECF No. 10) be DENIED AND DISMISSED WITH PREJUDICE for the reasons stated in the Report and modified herein. Respondent's Motion to Dismiss (ECF No. 16) shall be GRANTED, and judgment shall be entered in favor of Respondent. It is further ORDERED that Respondent's Motion to Alter or Amend Judgment (ECF No. 26) be DENIED, Respondent's Motion to Amend Her Objection (ECF No. 28) be GRANTED, and Petitioner's Mo tion to Appoint Counsel (ECF No. 27) be DENIED. Petitioner may appeal from the judgment entered pursuant to this Opinion and Final Order by filing a written notice of appeal with the Clerk of this court, United States Courthouse, 600 Granby Street, N orfolk, Virginia 23510, within thirty (30) days from the date of entry of judgment. Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right." 2 8 U.S.C. § 2253(c)(2). Therefore, the court, pu rsuant to Rule 22(b) of the Federal Rules of Civil Procedure, declines to issue a certificate of appealability, and it is hereby ORDERED that Petitioner's Motion for Issuance of a Certificate of Appealability (ECF No. 27) be DENIED. See Miller-E l v. Cockrell, 537 U.S. 322, 335-36 (2003). The Clerk shall mail a copy of this Opinion and Final Order to Petitioner and to counsel of record for Respondent. IT IS SO ORDERED. Signed by District Judge Rebecca Beach Smith and filed on 9/5/12. Copies distributed to all parties 9/6/12.(ldab, )
UNITED
FOR
THE
STATES
EASTERN
DISTRICT
DISTRICT
Norfolk
CHARLES
CLAUDE
FILED
COURT
OF
VIRGINIA
Division
SEP
RAMSEY,
5 2012
CLERK, US DISTRICT COURT
NORFOLK, VA
Petitioner,
v.
Civil
KIMBERLY
H.
of
the Virginia
No.:
2:llcv396
RUNION,
Director
Action
For
Behavioral
Center
Rehabilitation,
Respondent.
OPINION
This
corpus
matter
under
federal
28
was
Act.
Mental
The
72
23.)
31,
By
SVP.
of
the
Rules
of
of
the
Virginia.
2012,
copy
referred
Federal
United
of
the
R
and
custody
of
habeas
violations
commitment
of
as
a
Sexually Violent
December
the
United
U.S.C.
§
of Civil
9,
2008,
Virginia
as
States
the
Department
"R
Magistrate
636(b)(1)(B)
Procedure,
District
Magistrate
R,
civil
of
id.
States
recommended
writ
alleges
entered
28
to
for
under Virginia's
a
Rules
(referred
and
petition
to
of
The
petition
order
See
provisions
the
By
the
was
Recommendation
May
an
ORDER
Petitioner's
to
to
the
District
as
by
("SVP")
10.)
committed
Health
72(b)
of
No.
FINAL
The
to
matter
pursuant
Rule
2241.
predator
{ECF
Petitioner was
of
§
pertaining
sexually violent
Predators
initiated
U.S.C.
rights
AND
Judge
and
dismissing
each party was
as
Judge
and
(c)
well
as
and
Rule
Court
for
the
filed
his
Report
and
"Report")
on
R"
the
or
petition.
advised of
the
Eastern
(ECF
right
No.
to
file written objections
Magistrate Judge.
a motion
for a
On June
(ECF
No.
to the
2012,
24.)
and recommendations
of the
Petitioner was also advised of his right to file
certificate of
7,
findings
On
appealability.
the court
June
12,
received
2012,
Petitioner's
Petitioner
filed
objections.
a
motion
to
appoint counsel and for issuance of a certificate of appealability.
(ECF No.
the
R
27.)
and
R
Rule 59(e)
26. J1
On
Also on June
and
a
of the
June 14,
objections.
(ECF
motion
12,
2012,
to
alter
Respondent
or
amend
Federal Rules of Civil
2012,
No.
Respondent
28.)
On
June
judgment
Procedure.
filed
20,
filed objections to
a
motion
2012,
pursuant
(ECF Nos.
25-
to
her
amend
Petitioner
filed
response,
objecting to Respondent's motion to amend.
(ECF No.
The
for
the
time
filing
motions
are
ripe
Federal
Rules
matters
based
of
on
for
objections
disposition.
Civil
the
has
Procedure,
parties'
expired,
Pursuant
the
court
submissions,
and
to
Rule
will
finding
to
a
29.)
parties'
78
of
decide
oral
the
these
argument
unnecessary.
I.
RESPONDENT'S MOTIONS AND
OBJECTIONS
A. Respondent' s Motion to Alter or Amend Judgment
Respondent's
Rule
59(e),
motion
which was
to
alter
or
filed on June 12,
pertains to the entry of
judgments,
amend
2012,
judgment
pursuant
is DENIED.
and a magistrate
to
Rule 59(e)
judge's Report
1 Both filings seek to correct a perceived typographical error in
the Report.
See
infra
at
3-4.
-2-
is
not
a
judgment.
B. Respondent's Motion to Amend Her Objection
Respondent's
perceived
June
12,
typographical
a
2012,
error
Respondent
filed
objection,
explaining that
decision to treat
rather
than
motion
of
to
U.S.C.
period
arguing
in
objections
for
the
filing
Respondent's
the
Report,
and
presentation,
2254.
first
this
the
R
and
R,
"no
he
on the
was
an
statement
that
constitutionally
an
14,
to
Respondent's
filed
§
2241
Respondent's
obligated
she
2012,
Judge's
U.S.C.
opposes
a
additional
the Magistrate
28
to
it
file
all
motion
within
to
the
"a
Petitioner's
commitment
recommendation
that
is
to
the
court
statement,
on page
would
have
record determination
relinquished
and
(emphasis
contradicts
to
state
make
became
Petitioner's
his
due
not
that
an
final,"
(C)(1)
would
of
at
hearing
by
As
Respondent
on page
not
inquiry
and
be
felt
rights
statement,
court
such
Claim
-3-
the
added).
25
[Petitioner]
process
cross-examination
SVP."
Virginia
compelled
Objections
Virginia
confrontation,
points out,
June
file
to
was
because
objection
voluntarily
that
On
filed under
document.
GRANTED
objection
R.
Petitioner
single
is
that
stipulating
leave
an
objections.
compelled to make an
knowingly
and
that Respondent
a
raise
she also contests
C. Respondent's
of
R
requesting
§
amend,
her
in
the petition as one
objections
her
amend
28
motion
filings
at
the
27
of
have
felt
the
time
ultimate
dismissed.
It
is
evident
that the
on page
25
the
of
inclusion of "not" after
the
finding
Report
should
read
compelled." Accordingly,
Respondent
was
also
"no
petition
citing
under
Gaster
App'x 821
v.
objects
the
(4th Cir.
survive
procedural
to
the
court
would
and
have
that
felt
first objection is SUSTAINED.
treatment
§
Carolina
2241
of
standard
Department
the
of
of
petition
default,
was
(C)(1),
entitled
to
review,
as
and,
Corrections,
(unpublished per curiam),
Petitioner's Claim
§ 2241. R and R at 6,
error
§ 2241.2 The Magistrate Judge analyzed
2003)
Judge determined that
scrivener's
Virginia
stricter
South
a
Respondent's
one filed under 28 U.S.C.
the
merely
"no Virginia court would"
de
67
F.
the Magistrate
the only claim to
novo
review
under
16-17.3 Section 2241 applies to petitions for
writs of habeas corpus
filed by persons
"in custody in violation of
2 The characterization of the instant motion—either as filed under
§
2241
or §
2254—is
Section 2254
irrelevant
provides a
to the
outcome
of
standard of review that
to state court decisions than § 2241.
See,
370
(listing
the
in
F.3d
1002,
1008
sections).
That
due
to
claim
Respondent
Petitioner's
Section
the Magistrate
e.g.,
Judge
to
one
under
prevail.
that
§
White v.
recommended
standard,
section.
2254
would
appropriate
bar.
Lambert,
the
between
judgment
under which
it
less deference
Characterizing
only make
Nevertheless,
the
at
differences
to prevail because
under
objections under
it
court
standard.
(4th
South Carolina Department of Corrections,
Cir.
decision
in
construe
the
2003)
which
a petition
(unpublished
the
petition
commitment under
binding
courts
as
case
easier
reviews
See
infra
F.
App'x
II.A.
3 Gaster v.
821
2003)
for Respondent
state
Petitioner's
for
is,
Cir.
favor of the Respondent under § 2241's
was more difficult
is
(9th
the
is more deferential
Fourth
of
an
precedent.
See
curiam)
2241.
4th Cir.
is
affirmed
individual,
South Carolina's
filed under §
per
Circuit
R.
-4-
at
*1
32.1.
&
an
a
unpublished
decision
challenging
Sexually Violent
Id.
67
n.*.
As
his
Predator Act,
such,
it
to
civil
is
as
not
the
Constitution
U.S.C.
§
or
laws
2241(a)(3).
petitions
pursuant
for writs
to
the
the
of
of
of
that
a
2254,
the
a
State
Department
of
in
of a
fact,
Mental
the
other
the
AEDPA
court."
criminal
§
2254
cases.
supports
28
applies
to
hand,
"in custody
U.S.C.
he
§
2254(a).
commitment was
is
"in
custody
under the plain text
Respondent's
of
contention.
committed to the custody of the Virginia
to
Indeed,
28
conviction,
state court"
Health,
appears
States."
filed by persons
Mental
Retardation,
Abuse Services pursuant to a judgment of a
in
United
even though Petitioner's
A fair reading of § 2254
Petitioner was,
on
corpus
criminal
pursuant to the judgment
§ 2254.
of
habeas
judgment
product
treaties
Section
Respondent argues
not
or
limit
the
§
2254's
Supreme
and
state court,
coverage
Court
to
addressed
Substance
and nothing
judgments
in
the
of
scope
in dicta:
Incarceration
conviction
may
be
pursuant
by
far
to
the
a
state
most
common
criminal
and
most
familiar basis
for satisfaction of the
"in custody"
requirement in § 2254 cases. But there are other types of
state court judgments pursuant to which a person may be
held in custody within the meaning of the federal habeas
statute.
For example,
federal habeas corpus review may be
available
to challenge the legality of a state court
order of civil commitment or a state court order of civil
contempt.
Duncan
v.
Walker,
the
Fourth
Circuit
construed
habeas
petitions
fact,
533
U.S.
167,
176
appears
filed
to
by
-5-
(2001)
be
the
state
(emphasis
only
civil
added).
circuit
to
committees
In
have
under
§ 2241.4
2010);
See,
Banda
(unpublished
(7th
Cir.
2003);
e.g.,
v.
New
table
2010);
Smith
Walker v.
v.
an
Jersey,
Murphy,
134
decision);
Poole
v.
611
F.3d
F.
Brown
569
720,
unpublished
615
App'x
Goodno,
Richards,
Hadi,
While
Young v.
v.
991,
722-23
case,
529,
F.3d
705,
992-93
is
(1st Cir.
(3d Cir.
599
(11th Cir.
Gaster,
64-67
531
Waters,
335
F.3d
F.3d 59,
F.3d
708
(9th
2005)
602,
(8th
Cir.
611
Cir.
2009);
2010).
not
binding
on
this
court,5 it is not without serious review that the court rejects the
Magistrate
one
under
Judge's
§
finding
2241.
The
overwhelming support
this
court
filed
that
under
objection
is
the
28
that
plain
the
2241
civil
WL
as
§
2254.
Order
petition
at
No.
under
the
and
the
convinces
Accordingly,
Respondent's
second
the
the Magistrate Judge
7:ll-cv-00283
fact that
2241,
rather
than
§
2254,
does
not
section to apply to petitions brought by
(E.D.
court
Dir.
(W.D.
Dowdy v.
Va.
Western
Ramsey v.
§
e.g.,
originally
petition to this
§ 2241.
Duncan,
courts within the Fourth Circuit have treated
See,
*1
to have
from
2254,
as
SUSTAINED.
the appropriate
2413945,
§
characterized
for this position in other circuits,
U.S.C.
committees.
appears
of
be
instant petition should be characterized as one
4 Relying on Gaster,
§
petition
language
As Respondent acknowledges,
analyzed
the
June
Stewart,
13,
2011).
filed his petition
District
of
Va.
Ctr.
5 See supra note 3.
-6-
2011).
fact,
§
but
transferring
the
the
arising under
Rehab.,
(ECFNo.
2011
Petitioner
2254,
claim as
for Behavioral
July 12,
In
2:10cv457,
under
Virginia,
re-characterized the
Va.
No.
Civil Action
29 attach.
1.)
affect
the ultimate disposition of
note 2;
Petitioner's
claims.
See
supra
infra Part II.A.6
II.
PETITIONER'S MOTIONS AND OBJECTIONS
A. Petitioner's Objections
Rule 72(b)(2)
of the
that
any
objections
Fed.
R.
Civ.
P.
to
discern.
arguments
raised
also
in
habeas
habeas
magistrate
He
Claims
primarily
(C) (1)
to
petitions
(B).
cause
See
R
for
and
R
at
report
pro
se
(C) (2)
that
he
because
The
court
he
procedurally
lacked
was
finding that
defaulting
facts
petition.
prevented
claims
in
Petitioner
and
from
in his
the
argument
Claims
are
his
of
this
specific.
the
counsel
construes
be
requires
objections
ineffective assistance of counsel
proceedings.7
show
Procedure
reiterated
and
argue
objection to the Magistrate Judge's
to
judge's
Petitioner's
has
appears
adequately raising
state
a
72 (b) (2).
difficult
Petitioner
to
Federal Rules of Civil
state
as
an
failed
(A)(l)-(3)
and
14-15.
6 Importantly, jurisdiction remains proper in this court, which is
within
the
district
construed as
a § 2254
jurisdiction
to
of
confinement,
claim.
entertain
See 28
[a
§
even
U.S.C.
2254]
when
the
§ 2241(d)
application"
the districts of confinement and conviction
claim
is
("[C]oncurrent
exists
between
in this context.);
see,
e.g.,
Martin v. Johnson, l:08CV1254, 2009 WL 2434734 (E.D. Va. Aug.
4, 2009)
(exercising the court's discretion to maintain a § 2254
claim in the district of confinement where, as here, the respondent
had replied and
supplied
appropriate
state
court
records
without
difficulty).
7
Importantly,
commitment
Petitioner
did
have
proceeding.
-7-
counsel
in
the
underlying
The
(C)(1),
7-15.8
Magistrate
Petitioner's
In
Claim
violated
relying
than
his
on
and
his
(C) (2) ,
Petitioner
attorney's
the
Petitioner's
due
(C) (2)
to
The
was
raise
the
from bringing
a
Nothing
objection
regarding
further
he
was
that
he
Magistrate
claim
on
merits
of
the
procedurally
Magistrate
Claim
also
claims
defaulted.
R
found
R
Petitioner
rather
an
SVP
found
appeal,
that
because
and
he
are
is
rule
R and R at
court's
by
10-
independent
Petitioner's
futile,
finding
and
that
his
Claim
OVERRULED.
that
and
was
Accordingly,
Judge's
is
court
state procedural
the
(C) (2)
Magistrate
Judge
that
finding.
defaulted
assistance
found
this
SVP,
defaulted
direct
and adequate
R and R at
Judge
procedurally
Claim
erroneously
an
or
the
procedurally
that
of
trial
by
objections
on
ineffective
rights
proceeding.
arguments
The
the
collateral
record rebuts
is
that
state
review of the
(C) (2)
exception
Petitioner's
in
in
argues
establish
evidence.
independent
11.
the
process
to
now prevented by an
it
with
stipulation
government
Claim
failed
that,
claims were procedurally defaulted.
convincing
Petitioner
found
constitutional
requiring
clear
Judge
at
that
Petitioner
12-13.
had
each
not
The
of
has
the
four
raised
Magistrate
established
are
Judge
cause
for
8 The fact that the Magistrate Judge construed the petition under
§
2241
rather
analysis,
in
than
§
this
case.
2254
(requiring exhaustion of
F.3d
525,
531
(4th
state
Cir.
required exhaustion of
does
not
Compare
(citing
before
-8-
the
U.S.C.
remedies),
2010)
claims
affect
28
procedural
§§
with
Timms
cases
filing
for §
default
2254(b)(l),
in
v.
Johns,
which
2241
(c)
627
courts
relief).
defaulting on these claims.
to
his
the
effectiveness
civil
of
commitment
effectiveness
of
R and R at
Petitioner's
proceeding,
Petitioner's
the
Magistrate
Judge's
assistance claims,
habeas
Claims
(A)(l)-(3)
state-appointed
and
Claim
(B)
state-appointed
from his civil commitment proceeding.
to
14.
relate
counsel
relates
counsel
for
to
on
the
appeal
Petitioner apparently objects
findings
regarding
his
ineffective
arguing that the absence of counsel in his state
proceedings
constituted
cause
for
defaulting
on
these
claims.9 Petitioner's arguments are unavailing.
Recently,
in
Martinez
v.
Ryan,
132
S.
Supreme Court established a three-step test
a petitioner has
claim.
First,
prisoner to
proceeding
1318.
cause
the
raise an
rather
Second,
initial-review
the
imposing
than
on
direct
underlying
ineffective assistance
Petitioner
see Lenz
(explaining that
state
must
v.
have
can
habeas corpus
been
ineffective.
satisfy the
544
assistance
proceedings),
have
first
a
collateral
S.
Ct.
counsel
in
Id.
the
Third,
the
"some merit."
claims must
304
of
(Va.
Id.
this
2001)
be brought
save
in
Petitioner's
9 The court has liberally construed Petitioner's objections.
-9-
at
in the
two prongs
cannot
the
counsel
S.E.2d 299,
Martinez
require
132
appointed
claim must
Commonwealth,
ineffective
claim in
Martinez,
or
the
ineffective assistance
failed to appoint
collateral proceeding,
proceeding
inquiry,
review.
state must have
(2012),
conviction must
ineffective assistance
collateral
Although
the
1309
for determining whether
for defaulting on an
state
Ct.
ineffective
commitment
assistance
hearing
United States
v.
is
claims
a
Baker,
from
civil
45
F.
procedural
rather
3d
837,
842
is premised on the Sixth Amendment's
of
counsel
defendants
See
id.
317
in
criminal
should have a
("A
than
criminal
(4th Cir.
right
proceedings
default
because
matter.
1995).
to effective assistance
and
inability to
See
Martinez
the
principle
fair opportunity to vindicate that
prisoner's
a
present
a
that
right.
claim of
trial
error is of particular concern when the claim is one of ineffective
assistance
of
foundation
counsel.
for
our
.
.
.
adversary
[T]he
system.
right
Defense
prosecution's case to ensure that proceedings
adjudicating guilt or innocence,
person
charged.").
Martinez
where
It
no
would,
to
counsel
serve the
while protecting the
therefore,
underlying
be
the
tests
counsel
is
the
function of
rights of the
inapposite
constitutional
right
to
to
apply
counsel
exists.
The Virginia Supreme Court has held that
involuntary civil
all significant
commitment
process
Jenkins v.
Rehab.,
453,
corpus
S.E.2d
relief
does
not
lie
502 U.S.
62,
764,
(1990)).
The U.S.
Amendment's
right
to
67
460
McGuire,
780
the
subject
right
stages of the judicial proceedings,
appellate process."
624
has
"the
Dir.
(Va.
for
(1991)
of the Va.
2006).
errors
Ctr.
However,
of
state
(quoting Lewis v.
of the
to counsel
at
including the
for Behavioral
"federal
law."
habeas
Estelle
Jeffers,
v.
497 U.S.
Supreme Court has not extended the Sixth
counsel
to
individuals
-10-
in
civil
commitment
proceedings.
at 497-500
(4th Cir.
an
See Vitek,
(Powell,
1995)
445 U.S.
J.,
in
a
civil
(citing Vitek,
Cooper v.
Heyman,
8
Dec.
of
facing civil
counsel,
Clause,
or
in a
445
2007)
U.S.
civil
Petitioner had no
("[T]he
commitment
even
due
at
494-96)
not
the
at
has
not
under
held
right
the
*7-
that
a
assistance
Due
Process
Accordingly,
commitment proceeding.").
commitment proceeding or on direct appeal,
to
2007 WL 4287682,
counsel,
federally cognizable
right
opinion);
entitled to effective
of
guarantee
(plurality
Supreme Court
assistance
does
proceeding
06-4523,
is
id.
45 F.3d at 843 & n.3
process
commitment
Civil Action No.
4,
(plurality opinion);
concurring);10 Baker,
counsel)
person
496-97
(acknowledging that
individual
(D.N.J.
at
because
to counsel during his
he cannot avail himself
of Martinez to prove cause for procedural default.11
Although there
is
assistance of counsel
had
counsel.12
assistance
prong—that
10
In
Yet,
claim
his
Vitek,
involuntary
counsel,
the
controlling
satisfied
adviser
who
is
11 Once again,
commitment
civil
still
because
he
commitment
cannot
cannot
Justices
445
to
U.S.
a
497;
the
not
a
provision
lawyer."
Petitioner
proceeding.
Id.
supra
that
health
a
at
12 See supra notes 7 and 11.
-11-
his
Petitioner
ineffective
Martinez's
a
prisoner
facility
Justice
qualified
third
was
facing
entitled
Powell,
to
who wrote
"due process may
and
independent
4 99.
counsel
note
to effective
have merit—because
believed that
of
did have
See
claims
however,
concurring opinion,
by
out
establish
believed
mental
at
right
proceeding,
make
ineffective assistance
transfer
be
federally cognizable
in a
he
four
Vitek,
no
7.
during
the
underlying
he has failed to make a colorable showing that
deficient or that
683 F.3d 489,
131
S.
Ct.
it caused him prejudice.
504
(4th Cir.
770,
787
2012)
(2011).
representation was
See Winston v.
Pearson,
(quoting Harrington v.
Richter,
An
attorney's
representation
is
deficient if it falls below objective standards of reasonableness.
Id.
The central question in this inquiry is
representation
amounted
professional norms,'
to
incompetence
Washington,
466
U.S.
131 S.
668,
690
Ct.
is strongly presumed to have
significant
professional
investigation
of
law
and
If a petitioner
but
for
still prove
is
that
counsel's
in
facts
able
the
is
a
Petitioner's
Petitioner
has
not
who
bring
"counsel
this
errors,
at
options
are
690.
substantial burden,
probability
the
Stickland,
result must be
reasonable
after thorough
plausible
"reasonable
unprofessional
Id^ at
to
44 6 U.S.
to overcome
there
of
choices made
Strickland,
likelihood of a different
conceivable."
Petitioners
exercise
relevant
proceeding would have been different."
"The
(quoting Strickland
heavy burden because
and "strategic
virtually unchallengeable."
he must
'prevailing
rendered adequate assistance and made
decisions
judgment,"
at 788
(1984)).
ineffective assistance claims bear a
all
under
not whether it deviated from best practices or
most common custom." Richter,
v.
"whether an attorney's
that,
result
of
the
4 66 U.S.
at
694.
not
just
substantial,
7 92.
Claim
(A) (1)
identified
fails
any
-12-
under
this
unreasonable
standard
acts
or
because
omissions
that
resulted
attorney,
law.
Mr.
See
from
the
Haines,
Strickland,
was
ignorant
procedure
the
Supreme
petition
on
Court
civil
Petitioner's
at
filing
fact
690.
It
that
act
commitment
that
direct
granted
Petitioner
appeal
rules
is
deficient.
habeas
identify
any
resulted from Mr.
in matters
Accordingly,
civil
however,
first
to
or omission that may have
Haines
of
process;
failed
proceedings.
Mr.
appeal because
Petitioner's
has
commitment
field of criminal
true
failure to gain sufficient expertise
commitment
civil
Virginia's
civil
ground.
is
Petitioner's
Virginia
of
that
U.S.
the
the
other unreasonable
Haines's
for
of
governed
that
practiced primarily in the
466
missed the deadline
he
fact
Claim
related to
(A) (1)
lacks
merit.
Claim
Mr.
Haines
(A)(2)
failed
Petitioner has
of evidence
not
that,
to
in
a
claim
Petitioner's
Petitioner
was
Petitioner
never
without
found
merit.
that
a
investigate
attempted to
if
outcome of the civil
merit
similarly
so
argued or
Petitioner
available
identify a
Claim
(A)(3),
sexually
agreed
First,
Petitioner
in
violent
to
waive
Respondent
met
the
The
articulation
that
trial
and
right
and
however,
or piece
cannot
find
support.
stipulated that
{"SVP")
to
that
changed the
factual
even
trial,
Petitioner's
statutory
-13-
court
counsel
predator
his
defense
would have
commitment proceeding.
lacking
defenses;
single
introduced,
claims
definition
though
is
also
experts
both
of
an
SVP.
In
light of the experts'
about
an
counsel's
SVP
and
conditional
there
assuming
focus
the
argument
the
than
in
Petitioner has
civil
appellate
stipulation
as
the
§§
in
failure
no
to make
a
trial
trial
Claim
he
on
Claim
would
the
(A)(3)
(B),
trial
colorable
ineffective
Act
are
or
diagnosis
about
the
their defense
individual
meets
not
Even
of
the
constituted
evidence
have
of
been
an
SVP,
suggests
an
showing
SVP.
that
or
whether
claim
to
without
have
an
risk assessment
treatment of
merit.
the
definition
-14-
had
his
Petitioner
It
"expert,"
of
sex
of
trial
an
is
to
well-
Sexually
who
is
a
and "who is
offenders
sex offenders,"
and to testify at
-908.
outcome
relating
licensed clinical psychologist
and
that
without merit.
also
entitled
the
Because
the
different
of
assistance
is
not
Court
question
is
is
facing civil commitment under Virginia's
the
37.2-907,
that
definition
counsel,
knowledgeable
assist
belief
the
SVP,
did
this alleged failure prejudiced him in any
meets
to
Moreover,
Petitioner
offered
fact,
Predators
in
has
690.
stipulation.
this
the
licensed psychiatrist
skilled
and that
Petitioner's
Petitioner
apprise
Petitioner
commitment
an
to
at
the
and
failed
Individuals
Violent
failed
of
court
Petitioner's
13
that
consequences
Petitioner was
securing
this
attorney proceeded
qualified
on
Strickland,
Petitioner's
before
Petitioner,
efforts
that
record suggesting
counsel
of
stipulate
U.S.
indicating that
Other
his
the
nothing unreasonable
466
performance,
evidence
of
in
See
tactical
that
deficient
defense
release.
consequences
way.
strategic decision to
is nothing
understand
findings,13 there was
and
appointed to
regarding whether
SVP.
Va.
Code
Ann.
established that
even
right
in
to
habeas
551,
counsel
corpus
555
right
to
Court).
criminal
non-capital
proceedings.
(1987)
proceedings),
in
(no
counsel
for
Accordingly,
See
v.
Pennsylvania
to
Torna,
455
fact
that
Petitioner
effective
ineffective
did
not
assistance
have
of
a
during
proceeding or on appeal.14 Baker,
1995)
(citing
existed,
Vitek,
445
Petitioner
cannot
procedurally defaulting
his
at
ineffective
1318.
Judge's
his
at
show
finding that
Petitioner's
procedurally defaulted
(C) (1)
addressed
on
pertaining
to the
is
the
are
the
U.S.
(no
Supreme
state-appointed
remedies
cannot
494-96).
cause,
civil
843
if
under
assistance
to
(4th Cir.
such
rights
Martinez,
claims
Martinez,
objections
the
to
commitment
& n.3
Even
right
for
because
132
S.
Ct.
Magistrate
OVERRULED.
only
merits.
claim
Although
arguments presented in his petition,
11,
U.S.
ineffective assistance claims are
claim are merely a
14 See supra notes 7,
his
lack merit.
Petitioner's
481
(1982)
cognizable
F.3d at
ineffective
assistance claims
Accordingly,
Claim
U.S.
45
federal
claim.
federally
counsel
the
federal
assistance
and
587
Petitioner's
counsel on direct appeal declined to pursue
form the basis of an
in
federal
post-conviction
586,
petition
no
Finley,
in
U.S.
is
appeal
v.
counsel
certiorari
the
there
discretionary
right
Wainright
proceedings
and 12.
-15-
that
the
Magistrate
Petitioner's
recitation
of
Judge
objections
the merit-based
the Magistrate Judge analyzed
the
claim under
petition
Respondent
is
it
(C)(1)
rather
than
§
2254.
the
same
(C)(1)
the
whether the
however,
asserts
it
at
the
Virginia
Petitioner's
stipulation
that
civil
he
was
(plurality opinion),
and
Claim
run
would
trial
commitment
an
SVP
176
found that
afoul
of
F.3d
249,
263
Lane,
determine
claim
on
whether
direct
unreasonable
the
appeal
application
was
of,
489 U.S.
Supreme
§
The
Fourth Circuit
2254(d)(l).
resolving
Teague,
Weeks,
[a]
such
176
claim in
a
F.3d
266
is
1999).
of
also
Court's
to,
United
observed
-16-
against
Magistrate
favor
is
required
denial
of
the
involved
an
Federal
that
on
See Weeks
States."
impermissible
n.9.
the
or
established
the
has
review.
Had
(1989)
relief
he would have been
Supreme
[Petitioner's]
decision
at
Court
288
prohibition
clearly
the
The Magistrate
Teague's
"contrary
determined by
inquiring
Petitioner
2254,
Virginia
violated
granting
(4th Cir.
Judge analyzed the claim under §
to
As
hearing when
without
announcing new constitutional rules on collateral
Angelone,
the
necessary to
court
knowing and voluntary.
Judge analyzed this claim under Teague v.
v.
is
that
the ultimate disposition of Claim
that
stipulation was
(C) (1)
2254,
found
under each provision.
due process
accepted
§
Having
under the appropriate statutory framework.
recognizes,
Claim
federal
2241
is properly cognizable under
analyze Claim
(C)(1)
§
"if
law,
28
a
§
U.S.C.
decision
impermissible
under
as
under
2254(d)."
The
court
analysis.
the
It
finds
is
clear
Magistrate
committees
rights,
rights
also,
(concluding that
attach
to
Sexually
a
prisoner,
that
not
he
due
process
(1979)
prove
facts
denied
legal
in
a
is
equally
requirement
guilty
civil
plea
that
court
is
knowing
Boy kin
v.
v.
Supreme
and
129
the Constitution does not
health
395
63,
68
45
F.3d at
372
(1986)
not
under
Illinois's
496-99
(outlining
of
good
Texas,
proceeding
an
indigent
cause
441
Court
to
and was
U.S.
418,
"clear
reasonable
has
extended
that
a
Raley,
242
Cir.
1997)
It
the
defendant's
entered
506 U.S.
(1969);
to
and
doubt").
not
stipulations
238,
(2d
by
require a court to elicit a
-17-
procedural
required the government
Parke v.
U.S.
process
facility and concluding
showing
voluntary
F.3d
at
record showing
See
364,
transferring
"beyond a
create a
Alabama,
Pelensky,
for
commitment
the
445
Addington v.
rather than
that
U.S.
conducted
due process
commitment proceedings.
(1992);
States
that
clear
a
upon
the
in
civil
self-incrimination did
Vitek,
to a mental
civil
convincing evidence"
Act);
counsel);
(holding
See Baker,
478
cited
due
defendants.
against
hearing
procedural
with
Illinois,
Teaque
prospective
coincident
requirements
involuntarily,
could be
of
not
Judge's
precedents
although
proceeding
Persons
Court
range
privilege
commitment
entitled to
432-33
the
Magistrate
that,
a
v.
the
Supreme
criminal
Allen
Dangerous
procedural
to
are
afforded to
see
in
Report
entitled
these
842-43;
error
from the
Judge's
are
protections
no
cf_;_
20,
in
29
United
(holding
that
formal waiver
of procedural
committed
a
due
from a defendant who
supervised
precedents,
found
rights
the
court
process
release
agrees
to
violation).
that
require
stipulates
the
that
U.S.
In
light
Supreme
courts
that
make
of
Court
an
he has
these
has
not
on-the-record
determination that a prospective civil committee has knowingly and
voluntarily waived procedural
to
facts predicate
the
right
Supreme
that
federal
denial
of
Because
asserts
that
his attorney stipulates
in
no precedent
Claim
claim
on
(C)(l),
direct
or an unreasonable application of,
law.
objections
commitment.
Petitioner
Court's
contrary to,
to
rights when
28
as
U.S.C.
to Claim
§
2254(d)(1).
(C)(1)
establishes
the
Virginia
appeal
was
not
clearly established
Accordingly,
Petitioner's
are OVERRULED.
B. Petitioner' s Motion for Appointment of Counsel and Issuance of
a Certificate of Appealability
Petitioner's Motion
a
Certificate
respect
court
to
notes
499
(1987).
counsel
to
28
(4th
that
467,
Although
§
request
is
habeas
495
the
represent
U.S.C.
Cir.
there
federal
U.S.
to
Appealability
Petitioner's
non-capital
Zant,
of
for Appointment
1968),
the
for
corpus
has
see
appointment
Penn v.
of
right
Finley,
in
Bowman v.
-18-
No.
See
481
here
civil
White,
has
Issuance of
27.)
to
not
the
counsel
in
McCleskey
v.
U.S.
to
litigation
388
With
counsel,
discretionary power
party
petitioner
and
(ECF
proceedings.
the
indigent
1915(e)(1),
DENIED.
constitutional
(1991);
court
an
no
is
of Counsel
F.2d
551,
555
appoint
pursuant
756,
alleged
761
any
"exceptional
counsel
Cir.
in this matter.
1975);
1985),
circumstances"
Griffin
aff'd,
780
See Cook v.
v.
Virginia,
F.2d
decision).
to appoint
counsel
1018
Accordingly,
Petitioner
that
demonstrate
different
deserve
676,
at
that
a
COA
or
683
(4th Cir.
petitioner
must
constitutional
denies
demonstrate
see
"at
28
cite
any
resolved
Slack,
law
in
a
529
or
issues
manner
table
discretion
on
a
failed,
have
that
U.S.
at
of
argument
favorable
to
him,
of
Lee,
When
the
to
F.3d
473,
that
denial
of
a
a
the district
would
must
find
it
the denial
of reason would find it
in
Petitioner
that
a
252
petitioner
reason
to
529 U.S.
the
the
in
adequate
(explaining
correct
Because
any
however,
a valid claim of
jurists
-19-
v.
McDaniel,
grounds,
court was
484.
Rose
of
Judge's
resolved
were
granted).
jurists
right and that
been
showing
COA to be
certificate
has
2253(c)(2)
procedural
a
Magistrate
further.
§
file
presented
substantial
for
make
its
the
He
should
U.S.C.
debatable whether the district
ruling."
to
(quoting Slack v.
least,
constitutional
Va.
(unpublished
to
debatable whether the petition states
of a
(4th
(E.D.
943
exercise
of
780
941,
not
issue.
proceed
"a
right"
relief
the
to
make
F.2d 779,
1985)
right
object
not
that
2001)
(2000));
518
appointment
Supp.
Cir.
his
petition
encouragement
483-84
court
and
the
manner
F.
the
Petitioner.
("COA")
recommendation
606
(4th
exercised
appealability
Bounds,
the court will
for
has
that would warrant
the
its
procedural
has
failed
to
petition
could
be
court
denies
his
motion
for
issuance
Magistrate
of
a
Judge's
COA.
Petitioner's
recommendation
objections
that
a
COA
regarding
not
issue
the
are
also
findings
with
OVERRULED.
III.
Having
reviewed
to
Report,
to which the parties
AND
therein,
delete
under
the
28
court
2254(d)(l),
denial
of
contrary
that
to,
established
United
the
or
that
and
claim
law,
as
is,
therefore,
and modified herein.
shall
be
Respondent.
or
of
page
and
is
the
hereby
set
forth
25,
"a
the
12,
"have."
Petitioner's
set
decision
Supreme
Claim
forth
Supreme
application
determined by
line
properly cognizable
Virginia
not
2012,
does
precedes
review
unreasonable
ORDERED
DENIED AND DISMISSED WITH
16)
at
reviewed
was
court
31,
in
Court's
that
of,
was
clearly
Court
of the
States."
It
Report
that
appeal
an
the
May
recommendations
petition
having
FINDS
involved
Federal
the
novo
Judge's
"would"
standard
on
de
modification:
2254,
court
and
follows
the
made
Magistrate
findings
that
to
and
have objected,
FINDS
§
pursuant
the
following
"not"
U.S.C.
of
the
the
word
the
(C) (1)
§
APPROVE
with
Further,
portions
record
respect
ADOPT
the
the
CONCLUSION
Amend
GRANTED,
It
is
Judgment
and
that
PREJUDICE
the
for
No.
the
judgment
shall
26)
-20-
be
to
10)
stated
Dismiss
entered
Respondent's
be DENIED,
(ECF No.
reasons
Respondent's Motion
further ORDERED that
(ECF
petition
in
the
(ECF No.
favor
Motion
Respondent's
in
be
of
to Alter
Motion
to
Amend
Her
Motion
to
Objection
Appoint
Petitioner
this
this
(ECF No.
Virginia
date
entry
from
judgment.
substantial
U.S.C.
of
§
the
showing
2253(c)(2).
Federal
of
Petitioner's
Motion
(ECF
be
No.
335-36
27)
of
23510,
of
within
denial
DENIED.
See
shall mail
a
Miller-El
to
days
v.
from
the
hereby
right."
to
declines
Certificate
appeal
demonstrate
pursuant
is
of
to
600 Granby
constitutional
it
a
notice
(30)
failed
Procedure,
of
pursuant
Courthouse,
thirty
court,
and
Issuance
a
Petitioner's
entered
written
has
of
the
Civil
a
and
DENIED.
States
Petitioner
the
be
judgment
United
appealability,
for
the
GRANTED,
filing
Therefore,
Rules
certificate
27)
court,
Norfolk,
of
be
Order by
Street,
of
28)
appeal
Final
with the Clerk of
No.
Counsel
may
Opinion and
(ECF
Rule
to
"a
28
22(b)
issue
ORDERED
a
that
of Appealability
Cockrell,
537
U.S.
322,
(2003).
The Clerk
Petitioner
IT
IS
and
SO
to
counsel
copy of
of
record
this
Opinion and
for
Final
Order
to
Respondent.
ORDERED.
/S/
Rebecca Beach Smith
~~
United States District Judge -6Kr
REBECCA
CHIEF
Norfolk,
Virginia
SeptemberO ,
2012
•21-
BEACH
UNITED
SMITH
STATES
DISTRICT
JUDGE
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