Canale v. Clarke

Filing 20

MEMORANDUM OPINION. See for complete details. It is so ORDERED. Signed by District Judge Robert E. Payne on 11/27/2017. (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CHARLES FRANK CANALE, JR.,
Petitioner,

v.

Civil Action No. 3:16CV400

HAROLD W. CLARKE,
Respondent.
MEMORANDUM OPINION

Charles Frank Canale, Jr., a Virginia inmate proceeding with
counsel,

submitted

a

28

U.S.C.

§

2254

petition

(hereinafter

"§ 2254 Petition," ECF No. 1) challenging his 2012 convictions in

the Circuit Court of the City of Williamsburg and County of James
City ("Circuit Court").

By Memorandum Opinion and Order entered

on August 11, 2017, the Court dismissed Canale's
(ECF Nos. 16, 17.)

§

2254 Petition.

On August 16, 2017, the Court received from

Canale a motion seeking relief under Fed. R. Civ. P. 59(e)

("Rule

59(e) Motion," ECF No. 18).
The United States Court of Appeals for the Fourth Circuit
"(1)

to

law;

(2)

to

or

(3)

to

recognizes three grounds for relief under Rule 59 (e) :
accommodate
account

an

for

correct a

intervening

new

evidence

clear error of

change
not

in

controlling

available

at

trial;

law or prevent manifest

injustice."

Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993)
Weyerhaeuser Corp.

v.

Koppers Co.,

771 F.

Supp.

1406,

(citing
1419

(D.

Md. 1991); Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626
(S.D.

Miss.

discussed

1990)).

below,

Canale relies upon the third ground.

to

the

extent

appropriate for Rule 59(e)

that

Canale

raises

As

arguments

relief or that seek to vindicate his

rights, he fails to demonstrate that the dismissal of his

2254

§

Petition rested upon a clear error of law or that vacating that
dismissal is necessary to prevent a manifest injustice.
At

this

juncture,

a

proceedings is helpful.

brief

appeal,

and

Canale was

throughout

his

proceedings by the same counsel.
habeas

proceedings,

the

relevant

state

As set forth more fully in the Court's

prior Memorandum Opinion,
direct

summary of

Canale

represented at
state

and

trial,

federal

on

habeas

In Claim One of his federal

asserted

that

the

trial

court

had

violated his right to due process when it denied his motion to
inspect the original computer used by the detective in his online
The Court noted that, on direct

chat conversation with Canale.

appeal to the Supreme Court of Virginia,
upon state

law in arguing that

the

Canale relied entirely

trial

allowing him to inspect the computer.

court

erred in not

Therefore, the Court found

that Canale had not exhausted the due process aspects of Claim
One on direct appeal.
On state habeas

in the

Circuit

Court,

Canale

once again

raised the claim that the Circuit Court had erred in denying his
motion

to

inspect

the

computer.
2

Although

he

mentioned

due

process once in the context of a quote, the thrust and substance
of the claim remained based on state discovery and evidentiary
principles.

Furthermore, Canale informed the Circuit Court that

he was raising, once again, the same claim that had been rejected
on direct appeal .
unsurprisingly,
could

not

Given that

rejected

use

a

habeas

the

information,

claim on

corpus

the

petition

the Circuit Court, ground

already decided against him on direct review.

Canale

reli tigate

to

that

issues

The Supreme Court

of Virginia refused Canale's collateral appeal.
The main thrust of Canale's Rule 59(e) Motion is devoted to
counsel's

sentiment

that

the

Court

has

somehow

disparaged

counsel's name, not to vindicating the rights of his client.

In

particular,

as

counsel 1

characterizes

"questioning Canale' s counsel [' s]
59(e)

Mot.

2.)

It

is

correct

the

Memorandum

integrity."
that

(Mem.

the

Opinion

Supp. Rule

Memorandum

Opinion

addresses points made by counsel in his briefs and explains that
certain claims were defaulted by counsel.

And,

it is correct

that the Memorandum Opinion faults counsel for citing an altered
quotation

to

this

injustice occurred,

Court.

Counsel

claims

in part,

because

"the Court's analysis

that

a

manifest
is

tainted by certain unfortunate comments related to the character

The Court imputes these arguments to counsel and not to
Canale, because they have nothing to do with advancing Canale's
rights under Rule 59(e).
The Court therefore refers to counsel,
and not Canale, in this discussion.
1

3

and integrity of Canale' s

counsel.

These unfortunate comments

originate as a result of a typographical error in the citation
portion of an otherwise accurate quote."

(Id. at 1-2.)

Counsel

argues that "[t]ypographical errors happen occasionally" and that
"[i] t
an

is very disappointing and unfortunate that the Court used

unintended

citation

error

as

[a]

basis

to

question

integrity of a member of the Virginia State Bar."
Counsel's

def ini ti on of

a

"typographical

error"

the

(Id. at 2.)
stretches

the

meaning of that term.
In the discussion of the due process portion of Claim One,
the Court explained that the record before it made it difficult
for the Court to ascertain whether that portion of the claim was
procedurally defaulted.

(Mem. Op. 8-10, ECF No. 16.)

The Court

also stated that counsel had demonstrated a lack of candor with
the Court in arguing that the due process portion of Claim One
was exhausted.
the

state

Counsel now attaches as exhibits,

courts

process claim,

to

prove

that

he

did,

indeed,

filings from
raise

a

due

and that what appeared to be a quote edited by

counsel to prove his point was actually an accurate quote from
the Pe ti ti on for Appeal from the Court of Appeals of Virginia.
(See

ECF No.

19-1,

at

12;

see also Mem.

Op.

9-11.)

Counsel

indicates that he provided the wrong citation in his Memorandum
in Opposition to Respondent's Motion to Dismiss to Exhibit 3,
page 16,

or ECF No.

12-3,

at 16,
4

which was an exhibit to the

Brief in Support of Motion to Dismiss.
59(e)

Mot.

text

from

2.)

Apparently,

an exhibit

(See Mem.

Supp.

Rule

counsel intended to cite and quote

attached

to a

different

filing,

Exhibit

Number 1, page 13, or ECF No. 13-1, at page 13, of the Memorandum
in Opposition to the Respondent's Motion to Dismiss.

However, in

the Memorandum in Opposition to Respondent's Motion to Dismiss,
counsel also expressly represented to the Court that this quote
was from the "Petition for Appeal filed with the Supreme Court of
Virginia," which it was clearly not.
5, ECF No. 13.)

(Mem. Opp'n Mot. Dismiss 4-

Thus, the Court reasonably searched the Petition

for Appeal filed in the Supreme Court of Virginia for the quoted
text, not an entirely different exhibit, attached to a different
filing in this Court, which was filed in a different state court,
the Court of Appeals of Virginia.

While it is possible that

counsel may not have intended to mislead the Court, counsel made
several errors in presenting the due process aspect of Canale's
claim in this Court, and he refuses to accept responsibility for
failing

to

exhaust

his

client's

due

process

claim

in

state

court. 2

However, the Court's comments about counsel's errors are

not a clear error of law, and certainly do not amount to manifest
injustice.

This is precisely why the Court reviewed the merits of the
due process aspect of Claim One notwithstanding any default
caused by counsel.
2

5

Moreover,

to the extent that counsel argues that he truly

raised the due process aspect of the claim by pointing to an
argument made in the Petition for Appeal in the Court of Appeals
of Virginia,

this

fails

to prove that

the

claim was properly

exhausted.

To the contrary, in determining whether this claim is

exhausted,

the

issue

is not whether Canale mentioned the due

process aspect of his claim in the Court of Appeals of Virginia.
The issue is whether the claim must be fairly presented to the
Supreme Court of Virginia.
(2004)

Baldwin v.

Reese,

541 U.S.

(quoting Duncan v. Henry, 513 U.S. 364, 365

27,

29

(1995)).

As

the Court previously identified, and the Court further explains
below,

the

Petition for Appeal

filed

in the Supreme Court of

Virginia failed fairly to present a federal due process claim.
Canale next engages in a fairly extended analysis about how
he really did exhaust the due process aspect of Claim One.
Supp.

Rule

59(e)

Mot.

Canale submits

3-5.)

records

(Mem.

from his

state habeas proceedings - his Response to Motion to Dismiss that
he filed in the Circuit Court

(ECF No. 19-2), and, his Petition

for Appeal of the denial his habeas petition filed in the Supreme
Court of Virginia

(ECF No.

19-3)

-

to again make the argument

that he sufficiently raised a due process claim for exhaustion
purposes.
Court

The Response to Motion to Dismiss filed in the Circuit

includes

the

No. 19-2, at 1-4.)

words

"due

process"

several

times.

(ECF

However, as the Court previously explained,
6

Canale misled the Circuit Court in his state habeas petition when
he indicated that he was raising the same claims that he had
raised on direct appeal.
representation,
ground

that

the

it

(See Mem. Op. 12-13.)

Circuit

had

Court

already

rejected

been

decided

the
on

Because of this
claim

on

direct

the

appeal.

Therefore, the due process aspect was not fairly presented to the
Circuit Court in the state habeas petition filed with the Circuit
Court.
The Petition for Appeal of the denial of the state habeas
petition filed in the Supreme Court of Virginia did not include a
due

process

aspect

of

the

claim

in

assignments of error in the petition.
Canale only incorporated the words,
a

brief

due

process

argument,

the

recitation

of

the

(See ECF No. 19-3, at 2.)

"Due Process," and presented
for

the

first

time

in

the

recitation of the assignment of errors that appeared in the body
of the Petition for Appeal.

(See id. at 9-11.)

However, to the

extent that Canale now argues that he raised a due process claim
in the Supreme Court of Virginia in the Petition for Appeal from
the Circuit Court's denial of the state habeas petition, he fails
to demonstrate that the claim was exhausted.
not

fairly

raise

an issue

if

she or he

A "petitioner does
seeks

review of

federal claim for the first time on discretionary appeal."
v. Moore,

386. F.3d 896,

918

(9th Cir. 2004)

Casey

(citations omitted)

(discussing Castille v. Peoples, 489 U.S. 351 (1989)).
7

the

Canale's

attempt to cobble together pieces of a due process claim from
various portions of the state court record fails to demonstrate
that

the

claim

was

fairly

accordance with Virginia' s

presented

to

the

state

"chosen procedural scheme."

courts

in

Mallory

v. Smith, 27 F.3d 991, 995 (4th Cir. 1994).
Despite

counsel's

focus

on

proving

exhaustion

here,

the

Court will not engage in an extended re-evaluation of exhaustion
and procedural default in analyzing the Rule 59(e) Motion.

This

is because the Court ultimately reviewed the due process aspect
of Claim One on the merits, notwithstanding any default caused by
counsel.
Canale now asserts that dismissal of Claims One and Two on
the merits was an error of law.

That challenge lacks merit.

Canale suggests that the merits review of Claims One and
Two,

"contains errors of law."

First,

(Mem. Supp. Rule 59(e) Mot. 6.)

Canale contends that the Court "essentially adopted the

analysis of the Virginia Court of Appeals,
gravamen

as

a

discovery

claim."

classifying Canale's
Contrary

to

this

assertion, the Court did not examine Canale's claim based solely
on state discovery rules.

As previously explained, to the extent

Canale' s claim was based on "just

discovery rules, "

the

Court explicitly stated that those determinations of state law
are

not

reviewable

on

federal

habeas.

Canale' s Rule 59 contention is,
8

(Mem.

Op.

as was Claim One,

17

n.7.)

whether the

metadata from the police computer should have been provided to
the

defense.

The

discovery claim.

Court

fails

to discern how that

is

not

Although Canale insists that the failure

a
to

turn over this evidence to the defense violates due process, as
explained previously in the Court's August 11,
Opinion,

2017 Memorandum

the Constitution simply does not provide some general,

due process right to discovery beyond what Brady v. Maryland, 373
U.S.

83,

86-88

(1963)

152, 168 (1986).

requires.

Gray v.

Netherland,

518 U.S.

Canale, therefore, fails to identify any clear

error of law in the Court's dismissal of Claim One.
Second,
Canale does

Canale

argues

not offer a

'generally asserts

that

full

that

some

"[a]ccording,

to

the

analysis of analogous
broad

federal

Court,

cases and

due process

right

exists that entitled him to inspect the original electronic chat
files.'"

(Mem. Supp. Rule 59(e) Mot. 6 (quoting Mem. Op. 19.))

Canale argues that there are "not many cases that are analogous
to the fact pattern presented herein," as an explanation for why
he

could not muster a

stronger due process

argument.

(Id.)

Canale' s due process claim fails not because of the absence of
case law similar to the facts of this case, but because he cannot
demonstrate that the prosecution suppressed material, exculpatory
evidence
police
Opinion,

when

it

computer.
the

due

refused
As

to

turn over

previously

process

clause
9

the

metadata

explained

in

requires

the

the

from

the

Memorandum

government

to

disclose any material exculpatory or impeachment evidence in its
possession.

Giglio

(1972); Brady,

v.

United

373 U.S.

States,

at 86-88.

examining the evidence he sought,

405

U.S.

150,

Canale claims that,

153-55
without

there is no way that he could
(Mem.

demonstrate that the evidence was material or exculpatory.
Supp. Rule 59(e) Mot. 7.)
In his

§

2254

This is simply not true.

Petition,

Canale

argued

that

there

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. "

(Mem.

Supp.

§

2254

Pet.

6,

ECF No.

2.)

Canale fails to identify what "genuine issue" existed beyond this
vague statement .

He pointed to no concrete evidence that the

chats did not take place, or that the content and timing of the
conversations were at issue.

Additionally, Canale identified no

specific argument based on any fact in the record that could call
into

question

conversations.

the

accuracy

of

the

transcripts

of

the

chat

In sum, as explained previously, Canale did not

demonstrate that metadata from the police computer was material
or exculpatory.

Nor did Canale

demonstrate

that

there

is

a

reasonable probability that, had the computer data been disclosed
to the defense, the result of Canale's criminal proceeding would
have been different.
(1995).

Kyles v.

Whitley,

514

U.S.

419,

433-34

Instead, Canale seeks to breathe into the Constitution
10

some

greater,

general

due

beyond what Brady requires.

process

right

to

discover

evidence

Canale fails to demonstrate a clear

error of law or that altering the Court's Opinion is necessary to
avoid a manifest injustice.
With respect to Claim Two, Canale argues that,
[i]n its analysis of the sufficiency of the evidence,
the Court does not address another central issue, the
context in which the purported chats occurred.
Such
analysis is necessary in order to understand whether
the words uttered during these chats were in fact a
manifestation of intent to commit a crime or simple
role play.
(Mem. Supp. Rule 59(e) Mot. 8.)

Canale again argues that because

the Yahoo.com profile showed that ridergurl80 was over the age of
eighteen,

and because Canale' s

computer showed that he viewed

that profile,

"[t]he evidence therefore showed Canale had reason

to know that

ridergurl80 was over 18-years-old."

Court

fails

"context"

to

discern,

and

Canale

fails

to

(Id.)

The

explain,

what

the state courts and this Court failed to consider.

Canale engaged in communications with a

victim who identified

herself as fourteen-years-old and clearly acted as if she was
under

fifteen

years

of

The

age.

Court

concluded

that

no

unreasonable application of law and no unreasonable determination
of fact existed in the state court's determination that Canale
knew

or

had

reason

fifteen years old.

to

believe

that

"ridergurl80"

was

under

Canale has shown no clear error of law in the

Court's dismissal of this claim.
11

Accordingly, Canale's Rule 59(e) Motion (ECF No. 18) will be
denied.

The Court will deny a certificate of appealability.

The Clerk is directed to send a

copy of this Memorandum

Opinion to counsel of record.
It is so ORDERED.

/s/

/2-e--f

Robert E. Payne
Senior United States District Judge

q.,

Richmond, Virginia
Date: November

2017

12