Canale v. Clarke

Filing 16

MEMORANDUM OPINION. See for complete details. Signed by District Judge Robert E. Payne on 08/11/2017. (nbrow)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division IL AUG I I 20!7 CHARLES FRANK CANALE, JR., CLERK, U.S. DISTRIC I COURT RICHMOND, VA Petitioner, v. Civil Action No. 3:16CV400 HAROLD W. CLARKE, Respondent. MEMORANDUM OPINION Charles Frank Canale, Jr. , a with counsel, submitted a 28 U.S.C. "§ 2254 Petition," ECF No. 1) Virginia § inmate proceeding 2254 petition (hereinafter challenging his 2012 convictions in the Circuit Court of the City of Williamsburg and County of James City ("Circuit Court"). Canale argues that he is entitled to relief on the following grounds: 1 Claim One: "The trial court erred in denying Canale' s motion to inspect the original computer evidence - Due Process and Sixth Amendment violations." (Mem. Supp. § 2254 Pet. 4.) Claim Two: "The trial court erred in upholding the trial court's decision to deny Canale's motions to strike because the Commonwealth had not proved beyond a reasonable doubt that Canale knew or should have known that "ridergurl80" was under 15-years-old insufficient evidence under the Fourteenth Amendment." (Id. at 8.) The Court corrects the capitalization in quotations from Canale's submissions. 1 Clarke has moved to dismiss the action. has responded. Claim One review is (ECF No. 13.} As (ECF No. 10.} discussed below, procedurally defaulted and here. Additionally, Claims One thus and is Two Canale Canale' s barred lack from merit. Thus, for the reasons that follow, the Motion to Dismiss will be granted. I. PROCEDURAL HISTORY After a bench trial, the Circuit Court convicted Canale of six counts of soliciting sex with a child less than 15 years of age by using a liberties. computer and one count (See ECF No. 12-1, at sentenced Canale to 120 years of suspended. (Id. at 2.} Canale of attempted indecent 1.} The Circuit Court incarceration with 65 years appealed his convictions, raising there the following two assignments of error that are relevant here: 1. The Trial Court Erred in Denying Canale' s Inspect Investigator Gibbs' Computer 2. The Trial Court Erred in Denying Canale' s Motion to Strike and Renewed Motion to Strike Because the Commonwealth Had Not Proved Beyond a Reasonable Doubt that Canale Knew or Should Have Known that "ridergurl80" was Under 15-Years-Old Petition for Appeal 5, Canale v. (Va. Ct. App. Apr. 1, 2013}. Commonwealth, No. Motion to 2349-12-1 The Court of Appeals of Virginia denied the petition for appeal . (ECF No. 12-2, at 1.} The Supreme Court of Virginia refused the subsequent petition for 2 appeal. Canale v. Commonwealth, No. 131763, at 1 (Va. Mar. 28, 2014) . Canale, petition by for counsel, a writ of Domingo habeas J. Rivera, corpus in Esq., the filed Circuit a Court raising the same two claims as he presented as Assignments of Error 1 and 2 in his petition for appeal in the Court of Appeals of Virginia. v. Clarke, Circuit Petition for Writ of Habeas Corpus 5, No. Court "Canale' s CL15-736 (Va. Cir. dismissed Canale' s Ct. June habeas because appeal or 2015). petition finding as habeas a corpus forum in may which not to serve 265 Va. 246, 249, 211 Va. 91, 576 S.E.2d 495, 496 175 S.E.2d 271 as reli tigate decided against Canale in prior proceedings. 2.) Canale The that claims are the same as those he presented on direct appeal Cox, 2, 10, an additional issues already Henry v. Warden, (2003); see also Hawks v. (1970) ." (ECF No. 12-4, at 1- The Supreme Court of Virginia dismissed the petition for appeal. (ECF No. 12-5, at 1.) Thereafter, pending § again by counsel Rivera, filed the 2254 Petition. II. A. Canale, BASIC PRINCIPLES GOVERNING HABEAS PETITIONS Exhaustion And Procedural Default The exhaustion requirement "'is rooted in considerations of federal-state comity,'" and in the 3 Congressional determination reflected adequate in the state federalism.'" Va. 2005) federal remedies habeas will statutes 'best "that exhaustion of serve the policies of Slavek v. Hinkle, 359 F. Supp. 2d 473, 479 (E.D. (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 n. 10 (1973)). & The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Connor, 404 omitted). U.S. 270, 275 (1971) Exhaustion has two aspects. (internal Picard v. quotation marks First, a petitioner must use all available state remedies before he can apply for federal habeas relief. (1999) . See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 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 State to presented." . if he has the right under the law of the raise, by 28 U.S.C. any available procedure, the question 2254(c). § The second aspect of exhaustion requires a petitioner to have offered the address state courts "'opportunity'" the constitutional claims advanced on federal Baldwin v. Reese, 541 U.S. Henry, 513 U.S. 364, 365 marks an adequate omitted) . 'opportunity,' "To 27, (1995)) provide 29 4 habeas. (quoting Duncan v. (additional internal quotation the the prisoner must (2004) to State with 'fairly present' the necessary his claim in each appropriate state court with powers of (including a discretionary review) , thereby court to the federal nature of the claim." 513 U.S. at petitioner Fair 365-66). must present state supreme court Id. the that (quoting Duncan, presentation "'both alerting demands operative that facts and a the controlling legal principles' associated with each claim" to the state courts. 2004) Longworth v. Ozmint, 377 F.3d 437, 448 (quoting Baker v. 2000)). Corcoran, 220 F.3d 276, 289 (4th Cir. (4th Cir. The burden of proving that a claim has been exhausted in accordance with a with the petitioner. "state's chosen procedural scheme" lies Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994). Virginia's seeking habeas statute. chosen relief procedural to See Va. Code Ann. use § a scheme requires standard 8.01-655 form prisoners prescribed by The "form (West 2017). is divided into sections, each of which contains simple prompts directing the petitioner to provide failure to basic Mallory, necessary to review his conviction." The the complete properly the information 27 F.3d at 992. form with respect to a particular claim may preclude a finding that the inmate fairly presented the claim to the Virginia courts. "A distinct but related limit on Id. at 995-96. the scope of habeas review is the doctrine of procedural default." Pruett, 134 F.3d 615, 619 (4th 5 Cir. 1998). This federal Breard v. doctrine provides that, "[i] f a state court clearly and expressly bases its of dismissal procedural rule, a and habeas petitioner's that claim rule procedural on a state provides independent and adequate ground for the dismissal, an the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. A federal Thompson, 501 U.S. 722, 731-32 (1991)). habeas petitioner also procedurally defaults claims when he or she "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.'" 501 U.S. at 735 n.1). Id. (quoting Coleman, The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. 2010) Sussex I State Prison, (citing cases) . 591 F. 3d 707, 716 (4th Cir. Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989) . B. Applicable Constraints On Federal Habeas Review In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 u.s.c. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's 6 authority to grant relief by way of a Specifically, writ of habeas corpus. "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, (citing 28 U.S.C. § § 529 F.3d 220, 2254(e) (1)). 228 (4th Cir. 2008) Additionally, under 28 U.S.C. 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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). not The Supreme Court has emphasized that the question "is court's determination determination threshold." whether was Schriro a federal was incorrect unreasonablev. court Landrigan, believes but the state whether that a substantially higher 550 U.S. (2007) 465, 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). These general principles, and the claim specific precepts guide the resolution of Canale's petition. III. ANALYSIS OF CLAIM ONE Canale was convicted of conduct internet in a so-called "chat room." 7 that occurred on the In sum, Canale thought he was arranging a sexual liason with a minor woman when, in fact, he was communicating with a law enforcement officer, William R. Gibbs ("Gibbs"). communications, Gibbs used a police computer during the and it is access to that computer that is the issue raised in Claim One. 2 In that claim, in denying [his] one by used Canale argues that the "[t] rial court erred motion to inspect the original computer Gibbs] Due violations." (Mem. Canale to exhaust failed Canales did not Supp. include § Process 2254 Pet. Claim One a claim of and 4.) as Sixth [the Amendment Clarke argues that presented here because due process or the Sixth Amendment in either his direct appeal or in his habeas petition. It is undisputed that Canale did not include the words process" or "Sixth Amendment" in Assignment of Error One. 3 respect to Claim One, the due process "due With Canale counters that he did indeed raise aspect of the current claims in the state A full recitation of the evidence is set out in the analysis of Claim Two. That recitation is not necessary to the analysis of Claim One. 2 Clarke also argues that Canale failed to exhaust Claim Two here, because he did not include a due process claim in his direct appeal or habeas petition. With respect to Claim Two, Canale did not need to use the words "due process" in state court to raise a federal challenge to the sufficiency of the evidence. Instead, " [a] ny challenge to the sufficiency of the evidence to convict in a state prosecution is necessarily a due process challenge to the conviction." West v. Wright, 931 F.2d 262, 266 (4th Cir. 1991) (citations omitted) , rev' d on other grounds, 505 U.S. 277 (1992). Accordingly, Clarke has not demonstrated that Claim Two is defaulted. 3 8 courts. As explained below, this argument is riddled with problems making it difficult for the Court to decide whether the due process portion of this claim is defaulted. A. In The Due Process Aspect Of Claim One support of Claim One, and Assignment of Error One, Canale relies principally on Jones v. Sussex I State Prison, 591 F.3d 707, 713 (4th Cir. 2010), for the proposition that a "litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for claim . Id. example, by citing in conjunction with the a case deciding such a claim on federal grounds. (citation omitted) . single occasion, Canale argues that, because, a in the body of his supporting argument of the "Petition for Appeal with the Supreme Court of Virginia, cited to a on 11 case that mentioned "due process, 11 11 he and because he cited one state case that cited a federal due process case, he has "properly claim. 11 (Mem. alerted the Opp' n Mot. state courts Dismiss 4-5, of his ECF No. Due 13.) Process Counsel then provides a quote and a citation to "Respondent's Motion to Dismiss, Exhibit 3, p.16 11 to support the argument that he indeed raised a due process claim in state court. (Id. at 5 (emphasis omitted) . ) As an initial matter, intends to cite here. it is unclear what document Canale To the extent that he intends to cite to 9 Clarke's Brief in Support of Motion to Dismiss, the Court finds that Exhibit 3, page 16 does not contain the quoted text on which Canale relies. (See ECF No. 12-3, at 16.) Even assuming that Canale intended to cite to the previous page of Exhibit 3, which is the Petition for Appeal filed in the Supreme Court of Virginia on November 8, 2013, the quoted language in the Memorandum in Opposition to Clarke's Motion to Dismiss is not a direct quote from that page of the Petition for Appeal. (Compare Mem. Opp'n Mot. Dismiss 5, ECF No. 13, with ECF No. 123, at 15.) Instead, it appears that Canale's counsel has edited the quoted text by adding new citation information that was not That impropriety appears included in the Petition for Appeal. to be an attempt to show that Canale truly raised a due process claim in state court. In so doing, counsel has demonstrated a lack of candor with the Court, but he has not proved his point. In the Petition for Appeal filed by Canale in the Supreme Court of Virginia on November 8, assignment of error, the 2013, opening in support of the first paragraph provided following: The right of a defendant to call for evidence in his favor "is central to the proper functioning of the criminal justice system. It is designed to ensure that the defendant in a criminal case will not be unduly shackled in his effort to develop his best defense." Massey v. Commonwealth, 230 Va. 436, 442 (1985) . Article 1, § 8 of the Constitution of Virginia states this "includes the right to prepare for trial by procuring both testimonial and 10 the documentary evidence." Gilchrist v. Commonwealth, 227 Va. 540, 545 (1984) (internal citations omitted). "[T]he right to call for evidence in his favor, including the right to prepare for trial . . and to ascertain the truth . . lie at the heart of a fair trial, and when they are abridged, an accused is denied due process." Id. at 547 (internal citations omitted). "[A] criminal trial is fundamentally unfair if the State proceeds against [a] defendant without making certain that he has access to the raw materials integral to the building of an effective defense." Henshaw v. Commonwealth, 19 Va. App. 338, 334 (1994) (emphasis added) . "[A] 11 relevant facts must be available to both the prosecution and the defense in order to preserve the [adversarial] system's integrity." Id. (ECF No. 12-3, at 15.) The remainder of the argument contains references to the Virginia Code, the Rules of the Supreme Court of Virginia, and state court cases about the "reasonableness" of his motion to inspect. All of those authorities are cited in support of the contention that "[t]he Court of Appeals erred in holding the trial court did not abuse its discretion by denying Canale' s motion to inspect Investigator Gibbs' which he used to allegedly chat with Canale." work computer, (Id. at 16-20.) None of those authorities are offered in connection with a due process argument. It is unsurprising that the Court of Appeals of Virginia dismissed the earlier version of this claim without mentioning due process or the United States Constitution, finding instead that the claim lacked merit under state rules. (ECF No. 12-2, 11 at 1-2.) The Supreme Court of Virginia summarily refused Canale's petition for appeal. In his state Petition for a Writ of Habeas Corpus, Canale raised the same underlying claim as in his direct appeal. Using the statutorily prescribed form, claims raised therein " [were] appeal proceedings." 4 Canale was represented that the presented during Canale' s direct Petition for Writ of Habeas Corpus 11-12, Canale v. Clarke, No. CL15-736 response to the question (Va. Cir. Ct. June 2, 2015). [in the form], "[i] f In any ground set forth in 14 has not been presented to a court, list each ground and the reason Applicable." In Corpus, why it was not, " counsel stated: "Not See id. at 12. the body of the state counsel mentioned the context of a quote, however, Petition term for Writ "due process" of Habeas once in the the thrust and substance of the claim is based on state discovery and evidentiary principles. See id. at 5-9. The Circuit Court dismissed Canale' s habeas petition finding that Canale' s claims are the same as those he presented on direct appeal. The Court holds that habeas corpus may not serve as an additional appeal or as a forum in which to relitigate issues already decided against Canale in prior proceedings. Henry v. Warden, 2 6 5 Va. 2 4 6 , 2 4 9, 5 7 6 S . E . 2 s 4 9 5 , 4 9 6 ( 2 OO3) ; Counsel appears to have typed the entire Petition for Writ of Habeas Corpus in his own format, but the Court will assume that it follows the statutorily prescribed form required by the Virginia Code. 4 12 see also {1970). {ECF No. Hawks v. 12-4, at 1.) Cox, this record, Va. 91, 175 S.E.2d 271 The Supreme Court of Virginia dismissed the petition for appeal. On 211 {ECF No. 12-5, at 1.) the Court cannot find that the federal constitutional aspect of Claim One was fairly presented to the state courts in accordance with Virginia's Mallory v. scheme." On direct appeal, state law. Smith, 27 F.3d 991, Claim One was "chosen procedural 995 {4th Cir. presented as a 1994). violation of Although counsel raised this claim again in state habeas, he represented that these were the same claims that had been raised on direct appeal {i.e., violations of state law) . Petition for Writ of Habeas Corpus 11-12, Canale, No. CL15-736. Understandably, the Circuit Court rejected this claim on the ground that it had been previously decided on direct appeal. 5 In light of Canale's representation on the statutorily prescribed form, the Court cannot find that any reference to due process in Canale' s submissions to the Circuit Court in his state habeas "would suffice to fairly present the constitutional aspect of 2009 WL [this] 3109856, claim[] . " at *4 Reyes v. {E.D. Va. Kelly, Sept. No. 3: 09CV23-HEH, 25, 2009) {citing Because the Circuit Court was the last reasoned state court decision on this point, its reasoning is imputed to the Supreme Court of Virginia, which refused further review without discussion of the claims. See Ylst v. Nunnemaker, 501 U.S. 797, 803 {1991) . 5 13 Mallory, 27 F.3d at 996} (explaining that it was "unlikely" that petitioner had fairly presented federal of claims in accordance with constitutional aspects Virginia's "chosen procedural scheme" under similar circumstances} . For the first time in Claim One of this 2254 Petition, § counsel inserts at the beginning of the supporting argument two federal Pet. (Mem. cases pertaining to due process. 4-5.} After that introduction, Supp. the argument 2254 § from state court is repeated complete with citation to rules of the Supreme Court of Virginia and relies almost exclusively state law cases. (Id. at 5-8.} Counsel argues that the due process aspect of the claim is not defaulted because he "expressly claimed that a due process violation had occurred Commonweal th to (Mem. 5.} Opp' n raised a cause when the or permit Counsel also Court the contends he of a fair trial, and 547 [(1984}] ." (Mem. when "expressly" counsel argues that he: 14 "[T] he including the right to they are [Gilchrist v. Opp' n Mot. the evidence." . lie at . and to ascertain the truth accused is denied due process. 540,] that Order due process claim by quoting the following: prepare for trial heart to inspection of right to call for evidence in his favor, the refused Dismiss. abridged, an Comm., 227 Va. 5.} Finally, cited federal due process cases to support his assignments of error in the Virginia courts. Petitioner's due process argument was based, inter alia, in Henshaw v. Commonweal th, 19 Va. App. 3 3 8 (1994). Henshaw [sic] quotes Ake v. Oklahome [sic], a federal due process case, for supporting its ruling that due process is denied when a defendant is denied access to the 'raw materials integral to the building of an effective defense. ' Henshaw, 19 Va. App. at 344. Furthermore, the Henshaw due process analysis is further predicated in other federal Constitutional due process decisions. (Id. at 5.) Although it is correct that Henshaw the federal case, Ake v. Oklahoma, (a state case) 470 U.S. 68, 77 cites (1985), in one portion of its discussion of due process, the appellant, in Henshaw, actually process argument." Ct. App. 1994). had raised a "Virginia Henshaw v. Comm., constitutional 451 S.E.2d 415, 418 due (Va. Indeed, in its holding in Henshaw, the Court of Appeals of Virginia explained: "We hold that the due process rights of Article I, Section 8 of the Virginia Constitution give a criminal defendant a right to view, measurements of the crime scene contrary to counsel' s suggestion here, photograph, " Id. and at 419. take Thus, the citation to Henshaw does not satisfy the example found in Jones, that a "litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief . . . by citing in conjunction with the claim . such a claim on federal grounds." 15 Jones, . a case deciding 591 F.3d at 713 (citation omitted) . makeshift needles Id. Canale did little more than "scatter some in the haystack of the state court record." (citation omitted) Pethtel v. Ballard, (internal quotation marks omitted); 617 F.3d 299, (4th 306 Cir. see 2010) ("Presenting the substance of the claim requires that the claim be presented face-up and squarely; the federal question must be Oblique references which hint that a plainly defined. may be lurking in the woodwork will not turn the (citation omitted) (internal quotation marks omitted) . ) the record as a fairly present Claim One, whole, to the the Court finds state courts trick." Viewing that Canale failed to the due process aspect of and accordingly Claim One from review here. theory is defaulted and barred See Reyes v. Kelly, No. 3:09CV23-HEH, 2011 WL 5149975, at *3-4 (E.D. Va. Sept. 20, 2011) . 6 Although the due process aspect of Claim One was defaulted, his counsel claim in was at state fault court. for failing Counsel in properly to this represented Canale in state court in his and refuses on collateral review, simply case, raise that who also criminal proceedings to acknowledge his responsibility for defaulting the federal constitutional aspects Furthermore, "[w] hen the appeal is to a constitutional guarantee as broad as due process, it is incumbent upon a habeas petitioner to refer to the particular analysis developed in cases and not just due process in general in order to present his claim." Gray v. Netherland, 99 F.3d 158, 162 (4th Cir. 1996) (internal quotation marks omitted) . 6 16 of Claim One. {2012) that However, and Trevino v. counsel assistance of proceeding" this Thaler, have counsel Martinez provided at Martinez , Canale's addresses the 566 due v. Ryan, 133 S. Ct. 1911 may establish cause claim. Court may under for U. S . process Canale 566 {2013), with U.S. 1 the fact ineffective "initial-review collateral the procedural default of at 1 7 -18 . aspect of Accordingly, this the claim on its merits. B. Merits Review Of Due Process Aspect Of Claim One In Claim One, erred in computer {Mem. denying evidence" Supp. Canale's it is Canale's amounting 2254 § right now argued Pet. to due 4.) motion to a to "[t] he inspect violation And, process that it was is trial the of original due process. now contended violated court when he that was prohibited "from inspecting the most essential item of evidence offered by the prosecution, namely the electronic version of the chat logs. " 7 {Id.) Upon review of the record, the Court fails to discern a violation of due process. Because Canale did not raise the due process aspect of this claim in the state courts, the Court's review of the due process portion of Claim One is not pursuant to § 2254 {d) . Moreover, to the extent that Canale challenges the state court's determinations of the denial of the motion to inspect on the basis of state law, that he cannot do. The Circuit Court's purported error provides no basis for federal habeas corpus relief. Id. {"[I] t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Lewis v. Jeffers, 497 U.S. 764, 780 {1990) {citing 7 17 The Court of Appeals of Virginia aptly summarized the state law aspect of this claim as follows and found that it lacked merit: The Commonwealth provided appellant with documents transcribing the on-line chats between appellant and an on-line minor persona, "ridergurl1180" [sic] ("the victim"), created by Investigator Gibbs. Gibbs testified he copied and pasted the contents of the chats and then printed them as a word document. He stated he reviewed the printouts for accuracy in context, dates, and times as compared to what appeared on the computer screen depicting the exchanges between the appellant and the victim. Appellant had the opportunity to cross-examine Gibbs concerning the information and the procedures he used to create the documents. However, appellant sought to have access to what he ref erred to as the "raw evidence" contained on the police computer used by Gibbs and metadata in order to determine whether there were any inconsistences in the time frames or any alterations or modifications between the evidence as contained on the computer and the copies of the chats the Commonwealth provided to appellant. There is no general constitutional right to discovery in a criminal case, even where a capital offense is charged. While a defendant has the right to exculpatory evidence in the Commonwealth's possession upon request, Rule 3A: 11 defines the other discovery available to the accused in a felony case. Under Rule 3A: 11, a felony defendant is entitled to his own "written or recorded statements" made to law enforcement personnel, certain written reports in the possession of the Commonwealth, and "tangible objects within the possession, custody, or control of the Commonwealth" which "may be material to the cases for the proposition that "federal habeas corpus relief does not lie for errors of state law"). Accordingly, any state law aspect of Claim One will be dismissed. 18 preparation 3A: 11 (b) . [the] of defense." Rule Juniper v. Commonwealth, 271 Va. 362, 394, 626 S.E.2d 383, 404 (2006) (case citations omitted). Appellant makes no allegation that the evidence was exculpatory. In addition, appellant "does not assert that any additional discoverable material actually exists or that he has any reason to believe that there is any which has not been disclosed." See id. at 394, 626 S.E.2d at 405. Appellant failed to show the evidence would be material to the preparation of his defense. As in Juniper, appellant's request was "a speculative search for evidence" which was not authorized by statute or rule of court. See id. at 394-95, 626 S.E.2d at 405. Accordingly, the trial court did not abuse its discretion by denying appellant's request. (ECF No. 12-2, at 1-2 (alteration added).) In support of the due process aspect of Claim One presented here, Canale cites predominantly state law and generally asserts that some broad federal due process right exists that entitled him to inspect the original electronic chat files. "[T] he Due Process amount of Gray v. Clause discovery which Netherland, has little the 518 u. S. to parties 152, say must 168 regarding be (1996) the afforded." (citation omitted) . The Due Process Clause does require the government to disclose to the defense prior to trial evidence in its possession. 150, 153-55 (1972); Brady any exculpatory Giglio v. v. 19 impeachment United States, Maryland, (1963). or 373 U.S. 405 U.S. 83, 86-88 Brady and conviction its and progeny order a "require[] new trial a if court it to vacate finds that prosecution suppressed materially exculpatory evidence." States v. King, 628 F.3d 693, 701 (4th Cir. 2011). in order to obtain relief under Brady, a a the United Accordingly, litigant must "(1) identify the existence of evidence favorable to the accused; (2) show and that the suppressed government the evidence; (3) demonstrate that the suppression was material." Monroe v. Angelone, 323 F.3d 286, 299 (4th Id. (citing Cir. 2003)). Undisclosed evidence is material when its cumulative effect is such that evidence "there been is a reasonable disclosed to the probability defense, U.S. 419, 433-34 682 667, (1995) (1985)). the result the had of the Whitley, 514 Bagley, 473 Kyles v. proceeding would have been different." U.S. that, (quoting United States v. A reasonable probability U.S. at 434. Nevertheless, "[t]here is one Kyles, sufficient to undermine confidence in the outcome. is 514 general no constitutional right to discovery in a criminal case, and Brady, which addressed only exculpatory evidence, did not create one." Gray, 518 U.S. at 168 (internal quotation marks omitted) (citation omitted) . Canale process computer when believes it that denied evidence" of the his the Circuit motion to electronic 20 Court denied inspect chat the files him due "original on Gibbs' computer. (Mem. Supp. § 2254 Pet. 4.) The asserted purpose of the requested inspection was to examine the metadata in the file that reflects the conversation between Gibbs and Canale. Canale argues that "[t] here was a genuine issue as to the quality of what occurred in the chats across multiple days and times - not simply whether the chats took place, but that if they did occur, what exactly was said and when it was said." That argument lacks merit firstly (Id. at 6.) because Canale has proffered no material, exculpatory evidence that a review of the electronic copies of the chat conversations would have yielded. Moreover, Gibbs testified that he verified each transcript of the chat conversation line-by-line for accuracy with the files in electronic copy. of the online "accurate As the Circuit Court found, the transcripts chats that transcript[s] of were the entered online To the extent that Canale evidence, were conversations don't think there's any question of that." 182.) into (Sept. wished to 5, I 2012 Tr. receive the electronic version of the chat conversation to search for some unspecified inconsistency, the request for the inspection of the electronic chat logs is merely a speculative fishing expedition. Canale has not demonstrated that, if he had been allowed to inspect the original computer files of the electronic chats, reasonable probability existed that the result criminal proceedings would have been different. 21 of a Canale's Kyles, 515 U.S. at 433-44. Accordingly, Claim One would fail for lack of substantive merit, even if it had been properly presented to the state courts. Thus, the due process aspect of Claim One will be dismissed. C. The Sixth Amendment Aspect of Claim One Combined with his due process claim, argues that Canale also tersely "[t] he trial court violated Canale' s Sixth Amendment rights by prohibiting the defense from inspecting the most essential item of evidence offered by the prosecution, (Mem. namely the electronic version of the chat logs." § 2254 Pet. interference 4.) He with the contends defense that "the investigation Supp. Commonwealth's and the trial court's endorsement of the same deprived Canale of his right to effective assistance of counsel." (Id.) Clarke correctly asserts that Canale never raised a Sixth Amendment challenge in state court, thus, barred review from that portion of Claim One is defaulted and here. In response, Canale argues "petitioner's defense was shackled by lack of absence critical evidence preparation . that [t] his the Virginia courts . " counsel argument was (Mem. required [sic] Opp'n Mot. Dismiss 7.) to trial repeatedly presented never raised the Sixth Amendment in state court, reason alone, for that to Canale and for that the Sixth Amendment aspect of Claim One must be dismissed. 22 Even if a Sixth Amendment challenge had been properly presented to the state court, 8 Canale has not provided in this case anything other than a terse, conclusory argument for the unique and untenable proposition that court can cause a Sixth Amendment counsel claim in this context. 9 the actions of a ineffective trial assistance of Those conclusory and unsupported Because Canale did not raise a Sixth Amendment claim in state court, the Court's review of this portion of Claim One is not pursuant to§ 2254(d). 8 Canale cites to Brown v. Dixon, 891 F. 2d 490, 495 (4th Cir. 1989) and United States v. Cronic, 466 U.S. 648, 662 (1983), with little explanation, shifting the burden to the Court to discern the applicability of these cases in the first instance. (Mem. Opp'n Mot. Dismiss 7.) In Brown, the United States Court of Appeals for the Fouth Circuit affirmed in part, and reversed in part, the district court with minimal discussion of the ineffective assistance of counsel claim which contained many components not relevant here. 891 F.2d at 494-95. Turning to the underlying district court opinion, the petitioner argued that his defense team rendered ineffective assistance and the prosecution interfered with his criminal proceedings thereby violating his right to effective assistance of counsel. Brown v. Rice, 693 F. Supp. 381, 398 (W.D.N.C. 1988). In its brief discussion of this claim, wherein it found that the "state did not render defense counsel ineffective," id., the district court stated: "[T]he state violates the right to effective assistance of counsel when it interferes with the ability of counsel to conduct the defense. Strickland [ v. Washington], 466 u. S. [668,] 686 [1984]. Such interference is presumed when the state's conduct causes an actual breakdown of the adversarial process. [United States v. ] Cronic, 466 U.S. [648,] 657 [1984] . " Id. Here, Canale faults the Circuit Court, not the state, for, in essence, causing counsel to perform ineffectively. Canale fails to provide any argument indicating how and why Brown can be extended to the actions of the trial court. Moreover, to the extent that Brown has some application to this case, as discussed in conjunction with the merits review of Claim One, Canale wholly fails to demonstrate that "the interference was [] 9 23 assertions do not present a Cf. Sanders v. cognizable Sixth Amendment claim. United States, 373 U.S. denial of habeas appropriate where it conclusions Accordingly, with the no supporting 1, 19 {1963) {finding "stated only bald legal factual Sixth Amendment aspect of allegations"). Claim One will be dismissed. IV. Claim Two is a CLAIM TWO challenge to the sufficiency of the evidence, a claim that must be assessed with the trial evidence in mind. In perspective of the trial record, the application of the controlling legal principles shows that Claim Two must be dismissed. of a sufficient magnitude to give rise to presumption that the adversarial process broke down." Id.; see also Cronic, 466 U.S. at 659-62. In Cronic, the Supreme Court evaluated whether the state court's refusal to grant a continuance to counsel in a capital trial resulted in a denial of the effective assistance of counsel. In that case, the state court selected a random attorney who practiced real estate law, who had never tried a case, and who was barred in a different state, and also had indicated to the court that he was unwilling to represent the defendant on such short notice. Id. at 660, 665. The court appointed him anyhow and allowed him only 25 days to prepare when the Government had taken more than four years to investigate the case. Id. at 649, 660. Canale cites this case for the proposition that "[o]nly when circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial." {Mem. Opp' n Mot. Dismiss 7 {citing Cronic, 466 U.S. at 662).) Contrary to Canale's vague assertion, this is not such a case where the "surrounding circumstances justify a presumption of ineffectivess." Cronic, 466 U.S. at 662. 24 A. Evidence Elicited At Trial William R. Gibbs, a Senior Investigator with the James City County the Southern Virginia Internet Crimes Against Children Task Force, testified that, Police on Department, November 30, and 2011, an agent he with initiated (Sept. investigation involving internet chatting. 7-8.) the an undercover 5, 2012 Tr. Gibbs used an Apple iMac located in a secure office in police department. (Sept. 5, 2012 Tr. 8-9.) Gibbs registered an account on Yahoo! Chat under the name Claire Marie Gately, with a date of birth of July 9, Tr. 9.) (Sept. 1980. 5, 2012 Gibbs explained that he registered a date of birth of over eighteen years of age because individuals must state that they are at least (Sept. 5, 2012 Tr. into chatroom, the "Ridergurl80." eighteen 9-10.) to access chat rooms on Yahoo! . On November 30, 2011, Gibbs entered "Virginia romance" (Sept. 5, 2012 Tr. 12.) under the screen name, At 8:37 p.m., Gibbs was contacted by a person with the screen name "headhunterq2, " an account registered to Canale. 10 (Sept. 5, 2012 Tr. 12.) Gibbs chatted with that person seven times between November 30 and It is undisputed that "headhunterq2" or "Chuck C." were the screen names used by Canale for all seven recorded chat conversations. Accordingly, when it makes sense to do so, the Court refers to Canale by name instead of to his online screen name. The Court also uses Gibbs's name or the term "the victim" in place of the screen name "Ridergurl80." 10 25 December 15, 2011, and always police department. used the same computer at the (Sept. 5, 2012 Tr. 12-13, 15.) Gibbs enabled chat logging which allowed him to save the conversations that he engaged in. (Sept. 5, 2012 Tr. 13.) Gibbs copied and pasted the conversations into a Microsoft Word document, printed "individual line" "accurately them, and (Sept. captured 5, the reviewed then 2012 Tr. 18) each Word, Gibbs [he] communication instead of copied printing and pasted each (Sept. (Sept. 15, 2012 Tr. 16.) that 5, 2012 conversations the directly with had into through software from the chat on his screen, because " [i] t to read." by to ensure that they particular person on those dates and times." Tr. 13-14.) chat the Yahoo! was easier For some conversations, Gibbs "did a screen capture showing my screen with the actual chat being conducted." printed the (Sept. conversation 5, 2012 either the Tr. 16.) same Gibbs night then as the conversation took place or the following morning and provided the copies Attorney. of the conversations were conversation to the Commonwealth's (Sept. 5, 2012 Tr. 14-15, 17.) During trial, trial chat that Gibbs confirmed that the print-outs of the the accurate Commonwealth's and that he had Attorney engaged introduced in no at other conversations with Canale other than those introduced at trial. (Sept. 5, 2012 Tr. 14-15.) 26 1. On November 30, 2011 Conversation November 30, 2011, Canale asked for Gibbs' s (Sept. 5, which is chat terminology for age, sex and location." 2012 Tr. 21.) Gibbs responded that 14 "I'm and live Williamsburg" to which Canale responded "oh," and then, here." must (Sept. think replied: you." 5, I'm "no, 2012 some why?" (Sept. 5, kind 21-22.) of creep or 2012 Tr. 22.) something, " in "31, guy Canale later asked: Canale replied: Canale again stated: Tr. 22.) Tr. "A. S. L. and "you Gibbs "I'm so much older than Nearly forty minutes "I'm kind of old for you." later, (Sept. 5, 2012 Canale asked Gibbs to send him a photograph, and Gibbs forwarded a photograph of a female police officer taken when she was younger. (Sept. 5, 2012 Tr. 23.) Gibbs told Canale that the photograph was "from last summer . Tr. 24.) Canale represented as "a subsequently 'pie' of sent me." II a (Sept, photograph 5, Canale then asked Gibbs "you ever take nude responded "[j]ust one time." the conversation, Gibbs (Sept. 5, explained that (Sept. 2012 Tr. that he 25-26.) following Later in exchange occurred: [T] he individual stated to me that he had long fingers to which I applied 'k' which is short for okay. And then he went on the next question was you ever finger your pussy? I replied, yeah. To which he replied you like it? I replied, yeah, I call it tickling my pearl. He replies, LOL, which 27 2012 'pies?'" and Gibbs 2012 Tr. 26.) the 5, is shorthand for laughing out loud to which he replied I would like to lick your pearl. (Sept. 5, 2012 Tr. 26-27.) 11 2. December 1, 2011 Conversation On December 1, 2011, (Sept. 5, 2012 Tr. 27.) each other it changed Because Canale and Gibbs "had friended [Canale' s] (Sept. 5, 2012 Tr. 27.) Gibbs discussed the (Sept. Chuck C stated: pervert, to which I screen name difference 5, between 2012 Tr. "you could have Chuck C." Canale and the 27.) Gibbs explained said, no, replied 30 is not old, replied your old, 14." [to] Again, on December 1, 2011, Canale and age undercover persona. that Canale resumed his chat with Gibbs. I'm an old to which Chuck C. (Sept. 5, 2012 Tr. 27-28.) Gibbs then explained that the following exchange occurred: Chuck C stated that I want to run my hands all over you and kiss every inch of your body. To which I replied, "k" which is shorthand for, okay, that gave me goosebumps. To which Chuck C replied is that good or bad? To which I replied good and he replied with a smiley face. I replied to that I guess I got a good imagination, I can feel you doing it, to which Chuck C replied, nice, and then he went on to say I hope to do it and I reply, awe, more goosebumps. To which Chuck C replied handcuff you to a bed, fully clothed, then pull your shirt up so you're blindfolded. I would then slowly strip, massage, kiss For the quotations from the September 5, transcript, the Court does not alter the text punctuation, spelling or grammatical errors. 11 28 2012 trial to correct and touch your whole body, heard a horn, be right back. to which I replied just (Sept. 5, 2012 Tr. 28.) 3. December 5, 2011 Conversation On December 5, 2011 through the early hours of December 6, 2011, Canale Tr. 28-29.) resumed his chat with Gibbs. (Sept. 5, 2012 Gibbs recounted the following exchange took place: Starting at approximately 11: 48: 20 p. rn. Chuck C state[d] would you want me to touch you? To which I replied you would have to handcuff me to the bed and to which he replied, LOL. You like that idea? And to which I replied I told you I have a taking risks part of me and that's like, a real big thing. To which he replies with a smiley face of a devil, to which I reply with a smiley face of an angel rtext to a devil. 11:56:48 p.rn. Chuck C states I'll hold you down and feel you all over and to which I reply I hope my morn doesn't wake up, I' rn probably red all over. To which Chuck C replies, LOL, or laugh out loud. To which Chuck C replies I will be []tempted to stick my dick in your pussy. I reply she's a pretty good sleeper when she goes to bed. That's how I have been able to sneak out of the house some, to which Chuck C replies good. And I reply and I would be tempted to - - oh, I wouldn't be able to anything about it. To which he replies would you like it if I grabbed you and fingered your pussy for a while? Which I replied again I wouldn't be able to nsugar tingles" do anything about it now would I. Then I asked him would handcuffs hurt? To which he replied, nope. And then I replied I mean would well, I guess I'm getting sleepy. And then I asked how would you do it? Chuck C replied handcuff you, question mark, to which I replied, yep. And then I also stated I'm trying to draw the picture in my mind to which Chuck C - and by this time we are in the early morning hours 12:03:28 a.rn. 29 Chuck C states, well, you want me to force you or would you hold your hands out? To which I replied I would hold my hands out. And Chuck C replied I would put you on your stomach and handcuff you behind your back and then I replied "k" which is shorthand for okay, to which Chuck C replied and do whatever I wanted to you. Q: Okay. Again what did you respond? A: I replied would I have clothes on? Chuck C replied, at first, I replied "k," which Chuck C replied I don't know. I tend to go as it happens. And then Chuck C replied do you want to suck my dick? Which I replied "k" I guess it's more fun that way. I would be at your mercy. I haven't tried that but then I haven't been with anyone that I wanted to. (Sept. 5, 2012 Tr. 29-31.) During the same chat, Gibbs discussed meeting one another. (Sept. 5, Chuck C and 2012 Tr. Gibbs testified: At 11:33:55 p.m. Chuck C talks or writes you like the idea of us meeting? To which I applied [sic] if we can do it and not get caught. At 12:22:34 a.m. Chuck C writes where would you want to meet? To which I replied - and this is sometime while sending messages back and forth. Somebody may be typing faster from the other person so you some time get conversations that are a little disjointed so I want to apologize for that. Chuck C says where would you want to meet? I reply what you going to do, take my cell phone? Which he replies, LOL. Then I reply that little park near my house is really good after the library closes. There is no one there and it's real secluded. There's nothing but park benches though and he replies okay. What park is it? And I replied that it's not really a park, it's like a little path and a little garden type thing that's beside the library in Crocker . . . . Chuck C replies what's your I reply you can't come to my house. I of my mom busting us. It would have else and Chuck C replies I'm trying to 30 address? Which would be afraid to be somewhere find that park. 31.) And I reply, oh, it's at the Crocker Library and I live in the area across the street from it. Chuck C then states, I see, I think I found it. (Sept. 5, 2012 Tr. 32-33.} 4. On December 7, 2011 Conversation December conversation. 7, 2011, Canale and Gibbs resumed their Gibbs testified that he stated: [Y] ou know, I don' t even know your name, except it might be Chuck C, mine's Claire. And if you're mad at me for being stern, its Claire Marie, and if you' re about to beat my butt it's Claire Marie Gately. At that point Chuck C replies it's Chuck and I replied I thought it might be. (Sept. 5, 2012 Tr. 33.} Gibbs also testified that the discussed meeting again: At 9:25:55 p.m. Chuck C replies, thanks. When would you want to meet? To which I replied, oh, emoticons with an angel next to a devil. Chuck C said I would meet tonight if it wasn't raining and I had other things to do. 9: 26: 57 I stated I really would have better luck on a school night or probably best on a Friday night . . Then Chuck C then asked is Friday good? And then I reply, yeah, and then where is the jumping up and down and tingling button meaning the emoticon? He replies, LOL, and I replied, well, I don't know if I can type state, meaning straight, and then I go I mean straight, and he replies with a smiley face emoticon. Then I reply how would you want to meet and stuff? And Chuck says, "IDK" which is short hand for I don't know, dot, dot, dot, that place by the library. And I reply my mom should be in bed around 10 or 11 for sure and I wouldn't have a problem getting out of the house. Then I say "k" that will be the best and then what? Then Chuck C replies, okay, cool, what would you want to do? 31 two To which I reply what would you want me to wear and would you want me to bring anything? I would be at your command. Chuck C then replies "IDC," which I take to mean I don't care what you wear. What could you bring? And I reply I don't know me and he replies LOL. At that point I then say I guess I got that from my mom when she goes somewhere to see somebody she always asks if she can bring something which she replies, LOL, okay. Then I replied tell me what you will do to me? And he replies I don't know. And I reply it will give you something to think about. He replies kiss you, touch you. . . . . He replies wherever I felt like. And then I went tell me. And then he goes - I go I'm getting wet thinking about it. Chuck C replies your chest, butt, pussy, and I replied, oh, and then I replied and what else? Which Chuck C replies your neck and hair and at which point I say, oh, and what else? And then Chuck C says, hey, I'm sorry, got to go. (Sept. 5, 2012 Tr. 33-35.) 5. December 8, 2011 Conversation On December 8, 2011, the chat conversation resumed. 5 , 2O12 Tr . 3 5 . ) (Sept. Chuck C asked "you want to leave me a pair of your panties for me to find?" (Sept. 5, 2012 Tr. 36.) Gibbs explained that she would not be able to meet up with Canale as planned because her mother and father switched weekends of custody and she would be at a party with her father that night and with her father all weekend. (Sept. 5, 2012 Tr. 36.) Gibbs agreed to "leave a pair, meaning the panties, in my little park for you to get but you have to leave me of you." (Sept. 5, 2012 Tr. 36.) 32 . something to remind Gibbs indicated that they could not "sit and talk tonight" because tomorrow and I will be a wreck if I 36.) "I've got did." (Sept. 5, a test 2012 Tr. Gibbs testified that he went to Walmart after the chat ended, and purchased women's panties, perfume that's "a stuffed white panties, a supposed to smell pony, a pair size five bottle of Walmart knock-off like Victoria Secret, glitter pen and a high school ruled notebook." Tr. 37-38.) of (Sept. purple 5, 2012 Gibbs testified: I take the i terns to the picnic bench located in the little park area and I write a short note basically saying that I'll miss you with purple glitter pen. I then take the horse, spray a little bit of perfume on it, take the panties and ruffle them up a bit so they don't look new out of the package and spray a little perfume on those. I had the horse positioned so his front legs are holding the panties and this was done at approximately 10:30 p.m. (Sept. 5, 2012 Tr. 38.) Gibbs testified that he returned to the (Sept. park area the next morning and the items were gone. 5, 2012 Tr . 3 8 . ) 6. December 11, 2011 Conversation On December 11, Canale. (Sept. 5, 2011, 12 Gibbs again resumed his chat with 2012 Tr. 38.) Gibbs and Canale agreed to meet on Friday, because "[t]eachers are loading us up with tests this week because of being Christmas" after 10 p.m., 12 The trial transcript states that this (Sept. 5, 2012 Tr. occurred on December "llOth." evident from the record that this conversation December 11, 2011. 33 "so my mom conversation 38.) It is occurred on is good and asleep." conversation, Gibbs (Sept. 5, 2012 Tr. 39.) sent Canale an In that same chat unopenable file supposed to contain a nude photograph of the victim. 2012 Tr . 4 0 - 41. ) Canale replied: of my cock." In response to a that was (Sept. 5, request for a photograph, "[T] his is a new laptop, I just have a picture (Sept. 5, 2012 Tr. 41.) Gibbs explained that Chuck C then says or asks want to see? Which I reply if you want to. It won't scare me into meeting you, will it? It won't, like, split me in two, will it? And he replies it might. Q: Okay. And did you then receive - did that person send you a photograph? A: Yes, he did. (Sept. 5, 2012 Tr. 41-42.) Gibbs testified that he took a screen capture of the photograph of male genitalia and the chat of the text conversation displayed on his printed it out. (Sept. 5, 2012 Tr. 42.) computer and Gibbs explained that after he received the photograph Chuck C writes your pussy might be too small. I replied to that I don't know, it's wet though. To which Chuck C replies I don't want to hurt you. Which I reply, awe, if it would hurt you would stop if I asked you even though you had me handcuffed? Which he replied if you asked me to stop I would. Which I reply I believe you. Which Chuck C replied I want you to suck on it to which I reply you're nice and like me and I know you now and I trust you, okay, and then I go on to say and I like you. And then I go I don't think I can handle it all in my mouth though which Chuck C replies that's okay. Chuck C then goes on to say or asks would you be mad if I came in your mouth? To which I replied "us" would have to teach me what to do. 34 then Then I go on to say what would it taste like? Would it be all yucky and stuff and that's where guys pee? Chuck C replies I don't know what it tastes like. I hear it's kind of salty tasting. I reply, "k," I like salt. Then I add wouldn't get pregnant that way and Chuck C replies not in your mouth and then I reply I know silly which he replies LOL. (Sept. 5, 2012 Tr. 44-45.) 7. December 13, 2011 Conversation On December 13, 2011, Gibbs and Canale resumed their chat conversation and discussed what the victim would wear. 5, 2O12 Tr . 4 5 - 4 6 . ) [her] pussy," (Sept. Canale indicated that he wanted to "finger and he told her that the next time they met "I might take you to a hotel room with a hot tub and we can fool around in there 8. " (Sept. 5, 2012 Tr. 46.) December 15, 2011 Conversation On December 15, 2011, the night before the two were meet, Gibbs and Canale again had a chat conversation. 2012 Tr. 47.) (Sept. 5, Gibbs explained: I asked Chuck C are you excited about tomorrow night? He replied yes. I reply me, too, he replied LOL. I reply I can't believe I don't have to sneak out either. He replies cool. And I said, oh, I got a B on my Algebra test, he replies nice job. And I reply for me in math that's good and I get a smiley face from him. I then ask when do you get off work tomorrow? He replies I don't know yet. And I reply, oh, it's one of those type jobs, my mom's is kind of like that and he says, yeah, it depends on what is going on and I reply "k" for okay. 35 to I then state will you still be able to see me? And he replies, yeah, I just don't know when I' 11 be there right now. And I reply "k." How will I know to meet you? And he replies when will it be good for you? And I reply, well, 7 will be good if you could. I thought the library didn't close until 9 but it closes at 6 on Friday. He replies I don't know if I can be there that early. And then he asks does 8 or 9 work for you? I replied "k." When you think could - when you think you could? It's supposed to rain some and I didn't want to hang out in the rain waiting and then I [re] plied 8 is great. And then I asked I hope you have a comfy car because it's going to suck sitting out in the rain and he replies I will see you at 8 . . . I then say how will I know it's you? And he replies I'll have your horse and I go awe. I said are you taking good care of little Cash, Cash being the name of my stuffed horse? And he replies, yep. I then ask are you feeding him good? He replies I am. (Sept. 5, 2012 Tr. 47-49.) 9. On Scheduled Meeting and Arrest Friday, December 16, Gibbs 2011, and five other investigators waited at Crocker Library for Canale to arrive. At approximately 8:00 p.m., Canale arrived in a 2009 red Mini Cooper and drove near the library. Gibbs and Investigator Shadrix (Sept. 5, 2012 Tr. 50-51.) immediately approached the stopped vehicle and Gibbs saw the person he recognized from the photographs Canale had sent him in the car by himself. 5, 2012 Tr. identified Canale 51.) from driver's license. his was placed Department (Sept. 5, 2012 36 of Tr. under Navy 52.) arrest (Sept. and was identification and A search of the vehicle yielded the stuffed horse and women's panties that Gibbs had dropped (Sept. 5. off at 2012 Tr. the provider The 55-56.) package of nylon rope . service location (Sept. provided 5, near the Crocker Library. search also yielded an open 2012 Tr. Gibbs with The internet 56.) the street address associated with the IP address that the individual used to chat with Gibbs. (Sept. 5, 2012 Tr. Gibbs 59.) then obtained a search warrant for the address and the officers found an open box of Fire and Ice condoms on the floor of his bedroom that were consistent with the Fire and Ice condom found on Canale' s person after his arrest. carpet in Canale' s (Sept. bedroom had a 5, 2012 Tr. 61, 98.) The pattern consistent with the carpet in the background of the photograph of the male genitalia sent to Gibbs. Lietenant (Sept. 5, 2012 Tr. 62.) Scott Little, a digital forensics expert, testified that he examined two laptops, an iPad, and iPhone that were found in Canale's home. (Sept. 5, 2012 Tr. 119-20.) Little testified that the user names on the laptops were "Chuc" and "headhunter." (Sept. 5, 2012 Tr. 122.) Scott also explained that Yahoo! messenger builds a folder for every person that a person "ridergurl80" chats and with Canale and had the searched "ridergurl80" in his internet browser. 24.) laptop had a using folder the for term (Sept. 5, 2012 Tr. 123- Little also found thousands of hits when he searched the 37 term "ridergurl80" on the laptop for including, example, remnants of chat messages between "headhunter" and "ridergurl80" with a message sent by "ridergurl80" that 'pie' was me standing in the bathroom. stated, (Sept. II 5, 2012 Tr. the My hair is the same as My boobies aren't it was in my Putney 'pie.' It's shorter now. big. "well, 126.) Little also testified that he found images of prepubescent child pornography on the laptops and laptops. a (Sept. photograph 5, 2012 Tr. videos of a "younger, on the iPhone. of male 29, genitalia 134-35.) on one of the Little found three if not prepubescent, child masturbating, " (Sept. 5, 2012 Tr. 137.) The Circuit Court found that overwhelming evidence existed to convict Canale of all seven indictments. B. Claim Two: Sufficiency of the Evidence A federal habeas petition warrants relief on a challenge to the sufficiency of the evidence only if "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). The relevant question in conducting such a review is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a Johnson v. Louisiana, reasonable doubt . " 406 U.S. 356, 362 Id. (1972)). at 319 (citing The critical inquiry on review of the sufficiency of the evidence to support 38 a criminal reasonably doubt." conviction is support finding a "whether of the record guilt evidence beyond a could reasonable Id. at 318. In Claim Two, Canale argues that "[t] he trial court erred in upholding the trial court's decision to deny Canale's motions to strike reasonable because doubt "ridergurl80" was the that Commonwealth Canale under had knew or 15-years-old under the Fourteenth Amendment." (Mem. not proved should have known insufficient Supp. beyond a that evidence § 2254 Pet. 8.) In finding that the claim presented in the state court lacked merit, the Court of Appeals of Virginia explained the following: "On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). Code§ 18.2-374.3(C) provides: It shall be unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child less than 15 years of age to knowingly and intentionally: 1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person; 39 2. Propose that any such child feel or fondle the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; 3. Propose to such child the performance of an act of sexual intercourse or any act constituting an offense under § 18.2-361; or 4. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions. The evidence showed appellant conversed with the on-line persona created by Gibbs in an internet chat room. Transcripts of the conversations between appellant and the victim were admitted into evidence. One of these documents showed appellant asked the victim her age and she responded she was fourteen years old. In other conversations, appellant remarked that he was "so much older" than the victim and "I'm kind of old for you." He also referred to the victim' s age as fourteen. Upon appellant's request for a photograph, Gibbs testified he sent appellant a photograph of an officer that was taken when the officer was approximately fourteen years old. When appellant requested an item that belonged to the victim, Gibbs provided a stuffed animal. The courts of this Commonweal th have long recognized that " [c] ircumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Moreover, "[t]he Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). From the evidence presented, the trial court could conclude appellant knew or should have known the victim was fourteen years old. Accordingly, the 40 evidence was sufficient to prove this element of the offenses beyond a reasonable doubt. (ECF No. 12-2, at 2-3.) decision no unreasonable application determination unreasonable § of 2254 (d) (1) - (2) . conclude The Court discerns in the state court that Indeed, Canale was the any aware of the facts. See rational that law and u. S • C • 28 factfinder "ridergurl80" no would was under fifteen years old. The transcripts of the chats are replete with evidence that would have fourteen. reasonably led Canale to believe The victim identified herself as the victim fourteen, was sent a photograph of an underage female as a representation of herself, frequently made references to her homework, exams, her parents, sneaking out, and generally seemed sexually naive. Thus, after reviewing the evidence and credibility determinations light most favorable to the prosecution, [a] "in the rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 406 U.S. at 362). Jackson, 443 U.S. at 319 (citing Johnson, Accordingly, Claim Two lacks merit and will be dismissed. V. CONCLUSION For the foregoing reasons, No. 10) will be granted. Clarke's Motion to Dismiss Canale' s 41 § 2254 Petition will (ECF be denied and the action will be dismissed. A certificate of appealability will be denied. The Clerk is directed to send a copy of this Memorandum Opinion to counsel of record. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: August 2017 lf-1 42

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