Khavkin v. Clarke

Filing 21

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 07/26/2017. Copy mailed to petitioner.(tjoh, )

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JUL 2 6 2017
IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

|

k i) s

Richmond Division

DMITRIY KHAVKIN,

Petitioner,
V.

Civil Action No.

3:16CV576

HAROLD CLARKE,

Respondent.
MEMORANDUM OPINION

Dmitriy
counsel,

Khavkin,

a

Virginia

prisoner

proceeding

with

brings this petition for a writ of habeas corpus under

28 U.S.C.

§

2254

{"§ 2254

dismiss.

Khavkin has

Petition").

responded,

Respondent has moved to

and Respondent filed a

reply.

The Court attempted to review the § 2254 Petition and the Motion
to Dismiss.

manner

rules

in

However,

which

as discussed in greater detail below,

Khavkin

governing habeas

pled

his

petitions

claims

and

the

disregards

local

the

both

rules

the

for

the

Eastern District of Virginia and frustrates the Court's ability

to

analyze

Dismiss
directed

the

will
to

be

§ 2254
denied

submit

a

Petition.
without
§

2254

applicable rules for such actions.

Accordingly,
prejudice.
Petition

the

Motion

Khavkin
that

will

comports

to
be

with

THE

I.

Khavkin,
§ 2254

by

counsel,

Petition.

The

§

of
his

four

individual

2254

Gerald T.

2254

FACTUAL ALLEGATIONS"

§

PETITION

Zerkin,

filed

Petition contains a

that are not

claims.

{§

2254

linked
Pet.

the

instant

large section

in any manner to

HH

7-56.)

Khavkin

then raises the following claims for relief:^
Claim I:

"Petitioner was abandoned by his
choice,
as
guaranteed
by
the
Fourteenth

Amendments

to

the

counsel

Sixth

United

of
and

States

Constitution,
when
Mr.
Morrissey
ceased
communicating
with
and
representing
him,
substituting Mr. Maloney in his place, without
Petitioner's consent."
Claim II:

{§ 2254 Pet.

"Petitioner

the

of

was

counsel,

Fourteenth

denied

as

effective

guaranteed

Amendments

12.)

to

by

the

the

assistance

Sixth

United

and

States

Constitution, because his counsel had a conflict
of interest, which neither he nor the prosecutor

brought to the Court's attention."
Claim III:

(Id. at 14.)

"Petitioner was denied the effective assistance
of
counsel
because
his
conflicted
counsel

coerced him into a guilty plea and provided him
with erroneous advice as

to the

consequences of

a guilty plea, all in violation of the Sixth and
Fourteenth

Amendments

Constitution."

Claim IV:

in

violation

(Id.

^ The

Court

and

submissions.

to

the

United

States

at 16.)

"Because of, individually and collectively, his
compromised mental state, the limited time he
had to consider the proposed plea agreement and
the erroneous advice provided by his counsel,
Petitioner's plea was unknowing and involuntary,
Amendments

emphasis

(Id.

to

of

the

the

United

Fifth
States

and

Fourteenth

Constitution."

at 17.)

corrects

underlining

the
in

capitalization
the

quotations

and
from

omits

the

Khavkin's

Underneath

each

claim

is

short

statement

of

the

law

and

a

vague conclusion that Khavkin received ineffective assistance or
that

his

plea

Petition,

§ 2254

guilty

and

Dismiss.
to

was

involuntary.

Respondent

The

filed

a

Court

lengthy

served
Motion

the
to

In his Brief in Opposition to the Respondent's Motion

Dismiss

No. 12) ,

and

Brief

Khavkin

in

first

Support

(''Brief

provides

a

in

section

Opposition,"
entitled

ECF

''Facts

Alleged in Petition for Writ of Habeas Corpus" and "Respondent's
Statement of Facts"

specific claim.

that once again are a

narrative tied to no

Khavkin also provides a significantly expanded

legal analysis and different factual allegations with respect to
Claims

II

affidavit

and

III,

and

an

and

for

affidavit

the

first

from

time,

an

submits

examining

his

own

psychiatrist,

providing new factual allegations not originally included in the
initial § 2254

In addition,

Petition.

Petition.

(ECF No.

12-1,

Khavkin withdraws Claims I

at 1-2;

ECF No.

12-2.)

and IV from his

§ 2254

(ECF No. 12, at 9.)^

^ Even

though

he

significantly expanded and

changed his

factual allegations,
Khavkin failed to sign this Brief in
Opposition under penalty of perjury.
See Rules Governing § 2254
Cases

in

U.S.

District

Courts,

Rule

2(c)(5)

(requiring

that

petitions pursuant to 28 U.S.C. § 2254 "be signed under penalty
of perjury by the petitioner or by a person authorized to sign
i t for the petitioner under 28 U.S.C. § 2242.")
Moreover,
because Khavkin withdrew two claims,
a
large
portion of the factual allegations in his submissions no longer
support a claim pending before the Court.

II.

KHAVKIN'S

§

2254

PETITION FAILS TO COMPLY

WITH LOCAL RULES AND HABEAS

Rule

2 (d)

provides

of

that

an

the

Rules

RULES

Governing

application

for

Section

Cases

under

relief

2254

2254

"must

§

substantially follow either the foirm appended to these rules or
a

form

prescribed

by

a

local

district-court

Governing Section 2254 Cases, R.

2(d).

rule."

Moreover,

Rules

in the United

States District Court for the Eastern District of Virginia,

all

pro se petitions for writs of habeas corpora must be filed on a
set of

standardized forms.

"Counsel
use

a

filing

a

See

Va.

Loc.

Civ.

petition for writ of habeas

standardized

form,

essentially the

same

Id.

but

added) .

(emphasis

E.D.

any

information as
A pro

se

shall

forth

litigant

83.4(A).

corpus need not

petition

set

R.

contain

on said form."
or

an

attorney

proceeding in this district is required to follow the rules of
procedure.

See

4159737, at *2

The

Davidson

v.

Johnson,

No.

3:08CV4 06,

2008

WL

petition,

or

(E.D. Va. Sept. 9, 2008).

standardized

"PETITION UNDER 28

form

U.S. C.

for

§

PERSON IN STATE CUSTODY"

filing

a

§

2254

2254

FOR WRIT OF HABEAS

("standardized form"),^

CORPUS

BY A

requires that

^ The standardized foinn for filing § 2254 petitions in this
district
District

can

be found on
Court
for

the website for
the
Eastern

the

United States
District
of

Virginia, at http://www.vaed.uscourts.gov/formsandfees/documents
/A0241%20for%202254.pdf.
This form substantially follows the
standardized form set out in the Rules Governing Section 2254
Cases.

the petitioner set

the grounds

forth each level of

appeal

for appeal raised therein,

petitions he may have filed,

he pursued,

and

and any post-conviction

the grounds raised therein, and the

result of any proceeding.

Rules Governing Section 2254 Cases,

Appendix of Forms HH 8-11.

The standardized form also requires

the

inmate

to

set

forth

''GROUND ONE"

of

his

petition and then

"state the specific facts that support your claim."
The

instructions

facts

specifically

state,

(Do not argue or cite law.

that support your claim)."

Id.

to

provide

H 12.

"[s]upporting

Just state the specific facts

The inmate must also explain

why he did not exhaust his claim in state court.
inmate must

Id.

Id.

Next, the

identify exactly when and where in state court he

raised each individual claim and the result of that filing.

Id.

An inmate must complete a separate section for each ''GROUND" or
claim he wishes to raise.

Next,

after

an

inmate

sets

forth

his

claims,

he

must

identify whether "all grounds for relief that you have raised in
this petition
having

[have]

jurisdiction"

been presented to the highest state court
and

if

they

have

not,

the

inmate

must

identify "which grounds have not been so presented and give your

reasons(s) for not presenting them."
Khavkin's

directive
local

of

rules

§

the
that

Id. ^ 13.

2254

Petition

fails

Rules

Governing

Section

any

habeas

petition

to

comply

2254

filed

by

with

Cases
counsel

and

the

the

"shall

contain essentially the

same

information as

form."

Civ.

R.

E.D.

Va.

Loc.

Section 2254 Cases,

R.

2(d).

83.4(A);

set

see

forth on said

Rules

Governing

Khavkin's § 2254 Petition provides

a brief procedural history that is devoid of the specific claims
that

Khavkin

state court.

raised

during

his

post-conviction

in

Khavkin then provides a narrative section entitled

"FACTUAL ALLEGATIONS"

that

is not connected to any of

claims for relief he later sets forth.

Khavkin

proceedings

provides

argument

and

In his

cites

"specific facts that support [his]

law,

the

''CLAIMS"

and

four

section,

provides

claim[s]," as he must.

Governing Section 2254 Cases, Appendix of Forms H 12.

no

Rules

Khavkin

then fails to identify whether he exhausted each claim or why he
failed to exhaust the claim,

result of

the

filing

forth each claim,
he

raised

these

in state court.

Finally,

Khavkin once again fails
claims

before

jurisdiction and if not,
claims.

where he raised the claim,

Khavkin's

§

the

highest

or the

after setting

to identify whether
state

court

having

his reasons for not presenting these

2254

Petition

format as the standardized form,

does

not

follow

a

similar

lacks required information,

and

quite simply does not "contain essentially the same information
as set forth on said form."

"The
§ 2254

proper

petition

use

E.D.

of

the

results

in

Va.

Loc.

Civ.

standardized

R.

form

administrative

benefit to both the petitioner and the Court."

83.4(A).

for

filing

a

convenience

and

Davidson,

2008

WL

4159737,

the

Court

glean a
so.

at

and

*2.

the

Further,

here,

Respondent

to

Khavkin

sift

through his

factual basis for his claims.

Accordingly,

the

Court

will

apparently

expects

narrative

to

The Court declines to do

direct

Khavkin,

to

submit

a

§ 2254 Petition that complies with Eastern District of Virginia
Local

Civil

Rule

83.4(A)

and

information as set forth"
§ 2254
Loc.

"contains

essentially

R.

same

on the standardized form for filing a

Petition in the Eastern District of Virginia.

Civ.

the

E.D.

Va.

83.4(A).

Moreover,

Khavkin

significantly

expanded

the

factual

allegations in support of his claims in his Brief in Opposition
to

the

Motion

to

Dismiss.

The

Court

notes

that

Khavkin

must

adequately set forth his grounds for relief and those factual
allegations

in support of his

remaining claims

in his

§ 2254

Petition.

III.

CONCLUSION

Respondent's Motion to Dismiss

(ECF No.

7)

will be denied

without prejudice to renew after Khavkin files a § 2254 petition
that complies with Eastern District of Virginia Local Civil Rule
83.4(A)

and the Rules Governing Section 2254

will be directed,

hereof,

District

within thirty

to submit a

of

§

Virginia

(30)

days

2254 petition that

Local

Civil

Rule

of

Cases.

Khavkin

the date of entry

complies with Eastern

83.4(A).

Khavkin's

petition must
Rules

also

Governing

comply with Rule

Section

2254

Cases.

2(c)(5)

and

2(d)

Respondent

of

shall

the
have

thirty (30) days after Khavkin files his § 2254 petition to file
a responsive pleading.

Khavkin shall have fourteen (14) days to

file any reply.

The

Clerk

is

directed

to

send

copy

of

the

Memorandum

Opinion to counsel of record.
It

is

so ORDERED.

giL

/s/
Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date;