Talbert v. Clarke
Filing
30
FINAL ORDER. It is ORDERED that 2 Motion for the Judicial Notice of Petitioner's Assertion of His Actual Innocence be DENIED; 7 Motion to Dismiss be GRANTED; and Petitioner's 1 Petition for Writ of Habeas Corpus be DENIED and DISMIS SED. It is further ORDERED that judgment be entered in favor of Respondent. The Clerk shall mail a copy of this Final Order to Petitioner and counsel of record for Respondent. Signed by Chief District Judge Rebecca Beach Smith on 2/18/2014. Copies mailed 2/19/2014. (jmey, )
UNITED
FOR THE
STATES
DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
RICHARD M.
TALBERT,
#1150117,
Petitioner,
ACTION NO.
HAROLD CLARKE,
Dir.
2:13cvl99
VDOC,
Respondent,
FINAL
Petitioner,
Petition
§ 2254
of
for
a
Writ
(ECF No.
28
of
convictions
County
of
Virginia
Habeas
Assertion
U.S.C.
violation
of
a
inmate,
Corpus
has
pursuant
submitted
to
28
U.S.C.
of
§ 2254
(ECF
federal
on
March
Middlesex,
His
No.
rights
22,
2010,
for
Actual
2).
Innocence
The
pertaining
in
the
speeding,
Petition
to
Circuit
refusal
in Accordance
to
alleges
Petitioner's
Court
for
submit
to
blood/breath test, driving under the influence, and assault.
a
result
of
a
1) , along with a Motion for the Judicial Notice
Petitioner's
with
previously
ORDER
the
convictions,
Petitioner
was
sentenced to
the
a
As
serve
three years and nine months in the Virginia penal system.
The matter was referred to a United States Magistrate Judge
pursuant to
and Rule
72
the
of
provisions of
the
Rules
of
the
28 U.S.C.
United
§ 636(b)(1)(B)
States District
and
Court
(C)
for
the Eastern District of Virginia for report and recommendation.
The
Report
and
recommends
actual
that
Petitioner's
innocence
granted,
denied,
was
Recommendation,
be
denied,
Petitioner's
filed
motion
January
for
Respondent's
27,
judicial
motion
petition for writ of
notice
to dismiss
habeas
and the claims be dismissed with prejudice.
advised
of
his
right
to
file
written
findings and recommendations made by
February 6,
2014,
2014,
corpus
of
be
be
Each party
objections
to
the Magistrate Judge.
the
On
the court received Petitioner's objections to
ECF No. 29. The court makes a de
the Report and Recommendation.
nova review with respect to these objections.
Petitioner's
enforcement
objections
officer's
focus
failure
to
primarily
give
on
Miranda
the
warnings
law
to
Petitioner prior to requiring Petitioner to take a breath test.
Obj. 5-14.
As
stated
Petitioner raised this issue in Claims (109)-(112).
in the Report
and
Recommendation,
these
claims
are
procedurally defaulted. Report and Recommendation 15-16.
Further,
to
raise
counsel,
procedural
Petitioner argues his appellate counsel's failure
this
issue
and
constitutes
default.
on
Obj.
appeal
was
"cause"
17-19.
ineffective
to
excuse
Appellate
assistance
Petitioner's
counsel
discretion to determine the issues to raise on appeal.
Barnes, 463 U.S. 745, 751-52 (1983).
2
of
has
the
Jones v.
As discussed in the Report
and Recommendation,
the
court
Virginia reasonably applied
this case,
finds
that
the holding
the
Supreme
Jones
in
v.
of
Barnes to
and Petitioner has not shown he was denied effective
assistance of appellate counsel under Strickland v.
466
Court
U.S.
668
(1984).
Report
and
Washington,
Recommendation
26-27.
Consequently,
appellate counsel's failure to raise the issue on
appeal
not
does
constitute
"cause"
to
excuse
Petitioner's
procedural default. Murray v. Carrier, All U.S. 478, 488 (1986).
Next,
Petitioner
Recommendation
failed
correctly
to
address
Petitioner's form petition.
Obj.
hearing
court.
Form
defaulted,
to
litigate
Pet.
7.
his
Report
(2) ,
In Ground
raised
(2), Petitioner
(2),
Amendment
however,
claim
is
§ 8.01-675.3,
see also Dorsey v.
This
court
cannot
Angelone,
consider
544
and as a successive
298
(1989) .
procedurally
Accordingly,
defaulted.
that
Teague v.
Ground
Additionally,
3
S.E.2d 350,
claims
procedurally defaulted in state court.
288,
state
procedurally
petition under Virginia Code § 8.01-654 (B) (2) . See Va.
2001).
in
and any attempt to raise it now would be barred as
untimely under Virginia Code
5A:6;
in
because it was not brought as a separate claim in the
state courts,
R.
and
when he was denied a full and
Fourth
Ground
the
Ground
17.
asserts he was denied due process,
fair
notes
the
(2)
Sup.
352
would
Lane,
is
court
Ct.
(Va.
now
be
489 U.S.
DENIED
notes
as
that
review
of
Powell,
facts
the
428
to
Fourth
U.S.
465
support
Amendment
(1976),
his
claim
because
contention
is
barred
Petitioner
that
he
opportunity for full and fair litigation of
by
has
did
Stone
v.
offered no
not
have
the
the claim in state
court.
The
court,
having
reviewed
the
record
and
examined
the
objections filed by Petitioner to the Report and Recommendation,
and having made
objected
to,
novo findings
de
does
hereby
adopt
with respect
and
approve
to
the
the portions
findings
and
recommendations set forth in the Report and Recommendation filed
January 27,
Motion
DENIED;
for
2014.
It
Judicial
is,
Notice
therefore,
of
Actual
Respondent's Motion to Dismiss
ORDERED
that Petitioner's
Innocence
(ECF No.
(ECF
7)
and Petitioner's petition for writ of habeas corpus
be DENIED and DISMISSED.
No.
be
2)
be
GRANTED;
(ECF No.
1)
It is further ORDERED that judgment be
entered in favor of Respondent.
Specifically,
Grounds
(1)
and
(2)
are DENIED because
were not raised before the Supreme Court of Virginia,
they
and would
be procedurally defaulted in state court if raised now, and thus
Grounds
(1)
and
(2)
are
simultaneously
exhausted
and
procedurally defaulted.
Claims
(48),
claim
(1)
through (39), claim (40) (a) , claims
(49)(a),
claims
(50)
4
through
(67),
(41) through
claims
(69)
through (71), claim (81), claim (84), claim (87)(a), claim (89),
claim (92) (a) , and claims
the claims
(100) through (112) are DENIED because
are procedurally defaulted,
and Petitioner's actual
innocence claim does not provide a gateway through which
this
court can review his claims that were procedurally defaulted in
state
court.
Claims
(85),
(97)
(40)(b),
(86),
(49)(b),
(87) (b),
through
(99),
(88),
and
(75)
through
(90),
(80),
(92) (b),
(83),
through
(93)
(82),
(95),
(113)1 are DENIED because the Supreme
Court of Virginia's dismissal of these ineffective assistance of
counsel
claims
was
not
contrary
to
or
an
unreasonable
application of Strickland, and did not rest upon an unreasonable
finding of facts.
Petitioner has
of
the
court
denial
of
declines
pursuant
Procedure.
to
See
a
to
Rule
failed to demonstrate
constitutional
issue
22(b)
Miller-El
any
of
v.
a
right
substantial
and,
certificate
the
Federal
Cockrell,
therefore,
of
Rules
537
showing
U.S.
the
appealability
of
Appellate
322,
335-36
(2003) .
Petitioner is hereby notified that he may appeal from the
judgment
entered
pursuant
to
this
Final
written notice of appeal with the Clerk of
Order
by
filing
this court,
1 There are no substantive claims in the petition numbered 68, 72-74,
96.
a
United
91, or
States Courthouse,
600 Granby Street,
Norfolk,
Virginia 23510,
within 30 days from the date of entry of such judgment.
The
Clerk
shall
mail
a
copy
of
this
Final
Order
Petitioner and counsel of record for Respondent.
M.
-m
Rebecca Beach Smith
Chief
United States District Judge
Norfolk, Virginia
February
\Q^ , 2014
to
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?