Graham v. Virginia Supreme Courts
Filing
11
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 7/14/11. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
HORACE ANTHONY GRAHAM,
Petitioner,
v.
Civil Action No. 3:llcvl4
VIRGINIA SUPREME COURTS,
Respondent.
MEMORANDUM OPINION
Horace Anthony Graham, a Virginia inmate proceeding pro se, brings this petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss (Docket No. 4)
and a Rule 5 Answer (Docket No. 5), providing Johnson with appropriate Roseboro* notice (Docket
No. 7). Johnson responded. (Docket No. 8.) The matter is ripe for disposition.
L PROCEDURAL HISTORY
The procedural history of Graham's journey through the federal and state judicial and penal
systems drives the allegations in his petition for writ of habeas corpus.
A.
Graham's Arrest
The U.S. Drug Enforcement Administration arrested Graham on July 23,2004. United States
v. Graham, No. 3:04-cr-266 (E.D. Va.). The federal government held Graham in the Northern Neck
Regional Jail on federal drug charges. Graham was indicted on August 17, 2004 and arraigned on
August 30, 2004.
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
B.
Graham's State Charges and Plea
While in custody on federal charges, on October 4,2004, the Henrico County Circuit Court
("Circuit Court") sentenced Graham for possession with intent to distribute cocaine and possession
of heroin.2 The Circuit Court sentenced Graham to serve a fifteen-year term of imprisonment, with
eleven years suspended. The Circuit Court ordered that Graham's "sentences shall run consecutive
with all other sentences." (Br. Supp. Mot. Dismiss Ex. 1, at 1.) Graham was returned to the custody
of federal authorities at Northern Neck Regional Jail.
C.
Graham's Federal Charges, Plea, and Sentence
On October 15, 2004, Graham pleaded guilty in federal Court to possession with intent to
distribute cocaine. On October 28,2004, the Virginia Department of Corrections ("VDOC") lodged
a detainer with the U.S. Marshal Service.3 On January 20,2005, the federal Court sentenced Graham
to a 188-month term of imprisonment.
The Court's judgment specifically ordered the federal
sentence "to run concurrently with the present state sentence." Judgment in a Criminal Case at 2,
Graham, No. 3:04cr266 (E.D. Va. filed Jan. 20, 2005) (capitalization corrected). Graham began
serving time on the federal charges. On July 20,2005, the federal Bureau of Prisons sent VDOC a
detainer action letter confirming the placement of the VDOC detainer. On April 2,2009, this federal
Court reduced Graham's sentence to time served as of April 28, 2009.
Order, Graham,
No. 3:04cr266 (E.D. Va. entered Apr. 2, 2009).
2 Graham had been found guilty on August 28, 2003 (Br. Supp. Mot. Dismiss Ex. 1, at 1)
and the Circuit Court had issued a capias on September 26,2003 and a bond forfeiture summons on
December 11, 2003 (Br. Supp. Mot. Dismiss Ex. 1, at 2).
3 "A detainer is a notification filed with the institution in which a prisoner is serving a
sentence, advising that he is wanted to face pending criminal charges in another jurisdiction."
Commonwealth v. Venable, No. 1179-09-3, 2009 WL 3347087, at *3 (Va. Ct. App. Oct. 20, 2009)
(internal quotation marks, citations, and emphasis omitted).
D.
Graham's State Sentence
On April 29,2009, VDOC received custody of Graham from the U.S. Marshal. At that time,
Graham received his VDOC prisoner number. Graham began to serve the four-year state sentence
imposed by the Circuit Court.
II. GRAHAM'S CLAIMS
Graham raises three claims for relief:
Claim One
"Virginia Supreme Court lacked jurisdiction to modify the Petitioners Federal
concurrent sentence." (§ 2254 Pet. 6.)
Claim Two
"State Court violated Petitioners 14th Amendment under due process of law."
(§ 2254 Pet. 7.)
Claim Three
"The Lawyer of the Petitioner was ineffective." (§ 2254 Pet. 9.)
Respondent moved to dismiss on the grounds that Claims One and Two lack merit and Claim Three
is procedurally defaulted.
III. ANALYSIS
A.
Claims One and Two Lack Merit
In Claims One and Two, Graham alleges that his due process rights were violated because
the state court did not have the authority to modify the federal Court's order that his federal and state
sentences run concurrently. The factual underpinning of these claims is that because Graham was
sentenced by the state court first, he should have been serving his state sentence while also serving
on the federal charges. Graham presented a very similar claim to the Supreme Court of Virginia.
The Supreme Court held:
The record, including the sentencing order from Virginia, the petition for a writ of
habeas corpus and correspondence from the Department of Corrections to petitioner,
demonstrates that petitioner's Virginia sentences were ordered to be served
consecutively to all other sentences, that a detainer was lodged by the Virginia
Department of Corrections with the United States Marshal Service prior to
petitioner's sentencing in federal court, and that petitioner was not relinquished to the
custody of the Virginia Department of Corrections until he completed serving his
federal sentence.
Graham v. Director, No. 100237, at 2 (Va. Sept. 1,2010). Because the Supreme Court of Virginia
adjudicated this claim on the merits, this Court may not grant habeas relief thereon unless the
Supreme Court of Virginia's adjudication of the claim (1) "resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law," or (2) "resulted in
a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d).
Graham's argument rests on the faulty proposition that he was serving the state sentence at
the same time he was serving the federal sentence. This argument is foreclosed by the determination
that he was under the primaryjurisdiction offederal authorities when his state sentence was imposed.
Graham was under the primary jurisdiction of the federal government until April 29,2009.
Generally, where "an inmate has sentences imposed by federal and state authorities, the sovereign
that arrested him first acquires and maintains primary jurisdiction over him until the sentence
imposed by that sovereign has been satisfied." Sanchez v. Coakley, No. CCB-10-1585, 2011 WL
334692, at *3 (D. Md. Jan. 28, 2011) (citing United States v. Evans, 159 F.3d 908, 912 (4th Cir.
1998)); see also Reynolds v. Thomas, 603 F.3d 1144, 1152 (9th Cir. 2010) ("'Normally, the
sovereign which first arrests an individual acquires priority of jurisdiction for purposes of trial,
sentencing, and incarceration.'" (quoting United States v. Warren, 610 F.2d 680, 684-85 (9th Cir.
1980))); United States v. Poole, 531 F.3d 263, 271 (4th Cir. 2008). Thus, Graham was under the
primary jurisdiction of the federal authorities at the time his state sentence was imposed.4
When the state authorities "borrowed" Graham from the federal authorities in order to
prosecute him, the federal authorities did not relinquish that primary jurisdiction. See Thomas v.
Whalen, 962 F.2d 358,360-61 (4th Cir. 1992). Nor did the detainer effect a transfer ofjurisdiction
by operation of law. Id at 360. "Generally, a sovereign can only relinquish primary jurisdiction in
one of four ways: 1) release on bail; 2) dismissal of charges; 3) parole; or 4) expiration of sentence."
Papadapoulous v. Johns, No. 5:09-HC-2009-FL, 2011 WL 1104136, at *5 n.4 (E.D.N.C. Mar. 22,
2011) (citing United States v. Cole, 416 F.3d 894, 896-97 (8th Cir. 2005); McCollough v. O 'Brien,
No. 7:06-CV-712, 2007 WL 2029308, at *1 (W.D. Va. July 10, 2007)). Accordingly, the federal
authorities relinquished primary jurisdiction over Graham when his sentence expired on April 29,
2009.
In this instance, the sovereign with secondary jurisdiction—the Commonwealth of
Virginia—sentenced Graham first. Accordingly, that sentence did not begin to run until the entity
with primary jurisdiction—the Bureau of Prisons—relinquished jurisdiction.
United States v.
Cibrian, 374 F. App'x 524, 529 n.5 (5th Cir. 2010); Erin E. Goffette, Sovereignty in Sentencing:
Concurrent and Consecutive Sentencing ofa Defendant Subject to Simultaneous State and Federal
Jurisdiction, 37 Val. U. L. Rev. 1035, 1057 (2003) ("Therefore, the first sentence imposed is not
automatically the first sentenced served by a defendant."). Thus, the state court did not modify the
federal Court's order. The Supreme Court of Virginia's adjudication of this claim did not result in
4 Because Virginia did not maintain physical custody of Graham after his state conviction
in 2003, the United States obtained primary jurisdiction over him upon his arrest in July 2004.
Strand v. Schmittroth, 251 F.2d 590, 599-600 (9th Cir. 1957).
a decision that was contrary to, and did not involve an unreasonable application of, clearly
established federal law.
Nor did it "result[]t in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding." 28
U.S.C. § 2254(d)(2). Accordingly, Claims One and Two will be DISMISSED.
B.
Exhaustion and Procedural Default
State exhaustion '"is rooted in considerations offederal-state comity,'" and in Congressional
determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve
the policies of federalism.'" Slavek v. Hinkle, 359 F. Supp. 2d 473, 479 (E.D. Va. 2005) {quoting
Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion is "to
give the State an initial opportunity to pass upon and correct alleged violations of its prisoners'
federal rights." Picardv. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted).
Exhaustion has two aspects. First, a petitioner must utilize "all available state remedies before he
can apply for federal habeas relief." Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing
Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997)). As to whether a petitioner has used all
available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have
exhausted the remedies available in the courts of the State... if he has the right under the law of the
State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state courts an
adequate opportunity to address the constitutional claims advanced on federal habeas. "To provide
the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each
appropriate state court (including a state supreme court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(quotingDuncan v. Henry, 513 U.S. 364,365-66 (1995)). Fair presentation demands that '"both the
operative facts and the controlling legal principles must be presented to the state court."' Baker v.
Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (quoting Matthews, 105 F.3d at 911). Thus, "the
presentation to the state court of a state law claim that is similar to a federal claim does not exhaust
the federal claim." Id (citing Duncan, 513 U.S. at 366); see Gray v. Netherland, 99 F.3d 158,16264 (4th Cir. 1996) (concluding petitioner had not fairly presented his legal argument to the state
courts). "The burden ofproving that a claim has been exhausted lies with the petitioner." Matthews,
105 F.3d at 911 (citing Mallory v. Smith, 27 F.3d 991, 994 (4th Cir. 1994)).
"A distinct but related limit on the scope of federal habeas review is the doctrine of
procedural default." Breard, 134 F.3d at 619. This doctrine provides that "[i]f a state court clearly
and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner
has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S.
722, 731-32 (1991)).
A federal habeas petitioner also procedurally defaults claims when the
"petitioner fails to exhaust available state remedies and 'the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.l).5 The burden of pleading and
proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591
F.3d 707, 716 (4th Cir. 2010) (citing cases).
Absent a showing of cause and prejudice or a
5 Under these circumstances, even though the claim has not been fairly presented to the
Supreme Court of Virginia, the exhaustion requirement is "technically met." Matthews, 105 F.3d
at911 (citingSweezy v. Garrison, 694 F.2d 331, 331 (4th Cir. 1982)).
fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See
Harris v. Reed, 489 U.S. 255, 262 (1989).
C.
Claim Three is Procedurally Defaulted
In Claim Three, Graham alleges that his attorney was ineffective for failing to notify the state
court of Graham's federal sentence. (§ 2254 Pet. 9.) Graham never presented this claim to the
Supreme Court of Virginia. Were Graham now to attempt to present these claims to that court, they
would be barred by Section 8.01-654(B)(2) of the Virginia Code.
That provision provides, in
pertinent part, that a petition for writ of habeas corpus "shall contain all allegations the facts of
which are known to petitioner at the time of filing
No writ shall be granted on the basis of any
allegation the facts of which petitioner had knowledge at the time of filing any previous petition."
Va. Code Ann. § 8.01-654(B)(2). Section 8.01-654(B)(2) constitutes an independent and adequate
state procedural rule. See George v. Angelone, 100 F.3d 353,363-64 (4th Cir. 1996). Accordingly,
Claim Three is procedurally defaulted. Absent a showing of cause and prejudice or a fundamental
miscarriage ofjustice, this Court cannot review the merits of this defaulted claim. See Harris, 489
U.S. at 262. Graham does not assert any basis for excusing his default. Accordingly, Claim Three
will be DISMISSED.
IV. CONCLUSION
For the reasons stated above, Respondent's motion to dismiss (Docket No. 4) will be
GRANTED. Graham's claims will be DISMISSED. The petition for writ of habeas corpus will be
DENIED. This action will be DISMISSED.
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues
a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(l)(A). A COA will not issue unless a
8
prisoner makes "a substantial showing of the denial of a constitutional right."
28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). No law or
evidence suggests that Graham is entitled to further consideration in this matter. A certificate of
appealability will therefore be DENIED.
An appropriate Final Order will accompany this Memorandum Opinion.
/s/
Date:
Richmond, Virginia
John A. Gibney, Jr./ J
d
United States District Ju tee
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