Canale v. Clarke

Filing 16

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

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