Canale v. Clarke
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
CHARLES FRANK CANALE, JR.,
Civil Action No. 3:16CV400
HAROLD W. CLARKE,
Charles Frank Canale, Jr., a Virginia inmate proceeding with
"§ 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.)
On August 16, 2017, the Court received from
Canale a motion seeking relief under Fed. R. Civ. P. 59(e)
59(e) Motion," ECF No. 18).
The United States Court of Appeals for the Fourth Circuit
recognizes three grounds for relief under Rule 59 (e) :
clear error of
law or prevent manifest
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993)
Md. 1991); Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626
Canale relies upon the third ground.
appropriate for Rule 59(e)
relief or that seek to vindicate his
rights, he fails to demonstrate that the dismissal of his
Petition rested upon a clear error of law or that vacating that
dismissal is necessary to prevent a manifest injustice.
proceedings is helpful.
proceedings by the same counsel.
As set forth more fully in the Court's
prior Memorandum Opinion,
In Claim One of his federal
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,
law in arguing that
Canale relied entirely
allowing him to inspect the computer.
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
raised the claim that the Circuit Court had erred in denying his
process once in the context of a quote, the thrust and substance
of the claim remained based on state discovery and evidentiary
Furthermore, Canale informed the Circuit Court that
he was raising, once again, the same claim that had been rejected
on direct appeal .
the Circuit Court, ground
already decided against him on direct review.
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 name, not to vindicating the rights of his client.
"questioning Canale' s counsel [' s]
addresses points made by counsel in his briefs and explains that
certain claims were defaulted by counsel.
it is correct
that the Memorandum Opinion faults counsel for citing an altered
"the Court's analysis
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.
and integrity of Canale' s
These unfortunate comments
originate as a result of a typographical error in the citation
portion of an otherwise accurate quote."
(Id. at 1-2.)
argues that "[t]ypographical errors happen occasionally" and that
is very disappointing and unfortunate that the Court used
integrity of a member of the Virginia State Bar."
def ini ti on of
(Id. at 2.)
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
(Mem. Op. 8-10, ECF No. 16.)
also stated that counsel had demonstrated a lack of candor with
the Court in arguing that the due process portion of Claim One
Counsel now attaches as exhibits,
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 also Mem.
indicates that he provided the wrong citation in his Memorandum
in Opposition to Respondent's Motion to Dismiss to Exhibit 3,
or ECF No.
which was an exhibit to the
Brief in Support of Motion to Dismiss.
counsel intended to cite and quote
Number 1, page 13, or ECF No. 13-1, at page 13, of the Memorandum
in Opposition to the Respondent's Motion to Dismiss.
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
However, the Court's comments about counsel's errors are
not a clear error of law, and certainly do not amount to manifest
This is precisely why the Court reviewed the merits of the
due process aspect of Claim One notwithstanding any default
caused by counsel.
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
to prove that
claim was properly
To the contrary, in determining whether this claim is
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.
(quoting Duncan v. Henry, 513 U.S. 364, 365
the Court previously identified, and the Court further explains
Petition for Appeal
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.
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
to again make the argument
that he sufficiently raised a due process claim for exhaustion
The Response to Motion to Dismiss filed in the Circuit
No. 19-2, at 1-4.)
However, as the Court previously explained,
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.
(See Mem. Op. 12-13.)
Because of this
Therefore, the due process aspect was not fairly presented to the
Circuit Court in the state habeas petition filed with the Circuit
The Petition for Appeal of the denial of the state habeas
petition filed in the Supreme Court of Virginia did not include a
assignments of error in the petition.
Canale only incorporated the words,
(See ECF No. 19-3, at 2.)
"Due Process," and presented
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.
she or he
A "petitioner does
federal claim for the first time on discretionary appeal."
386. F.3d 896,
(9th Cir. 2004)
(discussing Castille v. Peoples, 489 U.S. 351 (1989)).
attempt to cobble together pieces of a due process claim from
various portions of the state court record fails to demonstrate
accordance with Virginia' s
"chosen procedural scheme."
v. Smith, 27 F.3d 991, 995 (4th Cir. 1994).
Court will not engage in an extended re-evaluation of exhaustion
and procedural default in analyzing the Rule 59(e) Motion.
is because the Court ultimately reviewed the due process aspect
of Claim One on the merits, notwithstanding any default caused by
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
"contains errors of law."
(Mem. Supp. Rule 59(e) Mot. 6.)
Canale contends that the Court "essentially adopted the
analysis of the Virginia Court of Appeals,
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, "
Court explicitly stated that those determinations of state law
Canale' s Rule 59 contention is,
as was Claim One,
metadata from the police computer should have been provided to
to discern how that
Although Canale insists that the failure
turn over this evidence to the defense violates due process, as
explained previously in the Court's August 11,
the Constitution simply does not provide some general,
due process right to discovery beyond what Brady v. Maryland, 373
152, 168 (1986).
Canale, therefore, fails to identify any clear
error of law in the Court's dismissal of Claim One.
not offer a
analysis of analogous
exists that entitled him to inspect the original electronic chat
(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
could not muster a
stronger due process
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
disclose any material exculpatory or impeachment evidence in its
examining the evidence he sought,
Canale claims that,
there is no way that he could
demonstrate that the evidence was material or exculpatory.
Supp. Rule 59(e) Mot. 7.)
This is simply not true.
"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
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
In sum, as explained previously, Canale did not
demonstrate that metadata from the police computer was material
Nor did Canale
reasonable probability that, had the computer data been disclosed
to the defense, the result of Canale's criminal proceeding would
have been different.
Instead, Canale seeks to breathe into the Constitution
beyond what Brady requires.
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.
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
(Mem. Supp. Rule 59(e) Mot. 8.)
Canale again argues that because
the Yahoo.com profile showed that ridergurl80 was over the age of
and because Canale' s
computer showed that he viewed
"[t]he evidence therefore showed Canale had reason
to know that
ridergurl80 was over 18-years-old."
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
unreasonable application of law and no unreasonable determination
of fact existed in the state court's determination that Canale
fifteen years old.
Canale has shown no clear error of law in the
Court's dismissal of this claim.
Accordingly, Canale's Rule 59(e) Motion (ECF No. 18) will be
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.
Robert E. Payne
Senior United States District Judge
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