Khavkin v. Clarke

Filing 21

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

Download PDF
l! L :•] 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 /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;

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?