Garner v. Clarke

Filing 18

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 12/26/2012. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MICHAEL E. GARNER,
Petitioner,
v.
HAROLD CLARKE,
Respondent.

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Civil Action No. 7:12-cv-00340

MEMORANDUM OPINION
By:

Hon. Michael F. Urbanski
United States District Judge

Michael E. Garner, a Virginia inmate proceeding pro se, filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss, and
petitioner replied, making the matter ripe for disposition. After reviewing the record, the court
dismisses the petition because petitioner is not entitled to relief.
I.
The Circuit Court of Washington County sentenced petitioner in February 2010 to, inter
alia, twenty-two years’ imprisonment after a jury convicted him of driving under the influence,
driving with a revoked license, and aggravated involuntary manslaughter. Petitioner’s counsel
noted an appeal, filed a petition for appeal pursuant to Anders v. California, 386 U.S. 738 (1967),
a motion for leave to withdraw as counsel, and a motion for an extension of time for petitioner to
file a pro se supplemental petition for appeal. The Court of Appeals of Virginia granted
petitioner more time to file his supplemental pro se petition, which argued the claims raised in
counsel’s Anders petition plus nine additional claims. The Court of Appeals of Virginia
ultimately determined that the appeal was wholly frivolous, granted counsel’s motion to
withdraw, and told petitioner he was now proceeding pro se and without the assistance of
counsel on any further proceeding or appeal.

Upon petitioner’s motion, the Supreme Court of Virginia granted petitioner extensions of
time to file a notice of appeal and a petition for appeal but refused to appoint counsel for
petitioner. Petitioner timely filed a notice of appeal but failed to file a petition for appeal, and
the Supreme Court of Virginia dismissed the appeal and subsequently denied petitioner leave to
file a delayed appeal, pursuant to Virginia Code § 19.2-321.2.
Soon thereafter, petitioner filed a state habeas petition with the Supreme Court of
Virginia, arguing six claims:
(A) Counsel abandoned petitioner by filing a motion to withdraw as counsel on appeal;
(B) Petitioner did not waive his right to appellate counsel and the appellate courts should
have appointed him counsel;
(C) Petitioner had obtained an extension of time to note his appeal from the Supreme
Court of Virginia, and he noted his appeal within that time period;
(D) Petitioner was not informed by any court of his “absolute, constitutional right to
counsel” on appeal;
(E) Petitioner was denied due process and equal protection under the federal and state
constitutions because the Supreme Court of Virginia did not appoint an attorney to
represent him “throughout the appeals process”; and
(F) The Supreme Court of Virginia erred by denying petitioner’s motion “for leave to
pursue a delayed appeal” because petitioner was in a wheelchair and had difficulty
accessing the basement law library in the correctional institution where he was
incarcerated.
The Supreme Court of Virginia reviewed petitioner’s claims and dismissed the petition for a writ
of habeas corpus on January 26, 2012. Petitioner timely filed the instant federal petition, arguing
the same six claims presented to the Supreme Court of Virginia.
II.
A federal court may grant habeas relief from a state court judgment “only on the ground
that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). After a state court addresses the merits of a claim also raised in a
federal habeas petition, a federal court may not grant the petition unless the state court’s
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adjudication of a claim is contrary to, or an unreasonable application of, clearly established
federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
The evaluation of whether a state court decision is “contrary to” or “an unreasonable
application of” federal law is based on an independent review of each standard. Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). A state court determination is “contrary to” federal law if
it “arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a
question of law or if the state court decides a case differently than [the United States Supreme]
Court has on a set of materially indistinguishable facts.” Id. at 413.
A federal court may also issue the writ under the “unreasonable application” clause if the
federal court finds that the state court “identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. This reasonableness standard is an objective one. Id. at 410. A Virginia court’s
findings cannot be deemed unreasonable merely because it does not cite established United
States Supreme Court precedent on an issue if the result reached is not contrary to that
established precedent. Mitchell v. Esparza, 540 U.S. 12, 16 (2003). Furthermore, “[a]
state-court factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290,
___, 130 S. Ct. 841, 849 (2010).
A federal court reviewing a habeas petition “presume[s] the [state] court’s factual
findings to be sound unless [petitioner] rebuts ‘the presumption of correctness by clear and
convincing evidence.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C.
§ 2254(e)(1)). See, e.g., Lenz v. Washington, 444 F.3d 295, 300-01 (4th Cir. 2006). Finally,

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“review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 1398
(2011).
A.
Petitioner argues in claim (A) that counsel abandoned petitioner by filing a motion to
withdraw as counsel on appeal, presumably in violation of the Sixth Amendment. A petitioner
claiming ineffective assistance of counsel in violation of the Sixth Amendment must satisfy the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of
Strickland requires a petitioner to show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment[,]” meaning that
counsel’s representation fell below an objective standard of reasonableness.1 Strickland, 466
U.S. at 687-88. The second prong of Strickland requires a petitioner to show that counsel’s
deficient performance prejudiced him by demonstrating a “reasonable probability that, but for
counsel=s errors, the result of the proceeding would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to undermine the confidence of the outcome.”
Id.
The Supreme Court of Virginia’s dismissal of claim (A) did not violate federal law.
Counsel satisfied the Sixth Amendment by filing an Anders petition and seeking permission to
withdraw from representation of a “wholly frivolous” appeal. See Anders, 386 U.S. at 741-42
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If a petitioner has not satisfied one prong of the Strickland test, a court does not need to inquire whether he has
satisfied the other prong. Id. at 697. “[A]n attorney’s acts or omissions that are not unconstitutional individually
cannot be added together to create a constitutional violation.” Fisher v. Angelone, 163 F.3d 835, 852-53 (4th Cir.
1998). Strickland established a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance[.]” Strickland, 466 U.S. at 689. “Judicial scrutiny of counsel’s performance must be highly
deferential” and “every effort [must] be made to eliminate the distorting effects of hindsight . . . and to evaluate the
[challenged] conduct from counsel’s perspective at the time.” Id. “[E]ffective representation is not synonymous
with errorless representation.” Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978).

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(discussing procedural requirements for counsel to properly seek withdrawal from a frivolous
appeal without violating the Sixth Amendment). Accordingly, petitioner fails to identify
counsel’s deficient performance, and this claim must be dismissed.
B.
Petitioner’s claims (B), (D), and (E) all relate to Virginia’s appellate courts not
appointing counsel to aid an appeal to the Supreme Court of Virginia.2 The Supreme Court of
Virginia’s dismissal of these claims did not violate federal law. “[A]n indigent defendant who
has his appeal dismissed because it is frivolous has not been deprived of ‘a fair opportunity’ to
bring his appeal, for fairness does not require either counsel or a full appeal once it is properly
determined that an appeal is frivolous.” Smith v. Robbins, 528 U.S. 259, 278 (2000). Because
the Court of Appeals of Virginia determined petitioner’s appeal was wholly frivolous, petitioner
was no longer entitled to counsel and could proceed only pro se. Furthermore, petitioner was
entitled to the assistance of counsel in a first appeal of right but was not entitled to counsel on a
second or discretionary appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). Unlike petitioner’s
appeal of right to the Court of Appeals of Virginia, his appeal to the Supreme Court of Virginia
was a discretionary, second-level appeal. See VA. CODE §§ 17.1-406, 17.1-411. Thus, petitioner
received all the equal protection and due process afforded by the United States Constitution, and
claims (B), (D), and (E) must be dismissed.

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Respondent argues that claims (B), (D), (E), and (F) should be considered procedurally defaulted due to the
holding in Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974). A federal court may enforce a
procedural default if the state court explicitly relies on the procedural ground to deny petitioner relief and that state
procedural rule is an independent and adequate state ground for denying relief. Ford v. Georgia, 498 U.S. 411,
423-24 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991); Harris v. Reed, 489 U.S. 255, 259-61 (1989).
However, the Supreme Court of Virginia did not explicitly find claims (B), (D), (E), and (F) procedurally defaulted
under Slayton, and thus, the court similarly does not find these claims procedurally defaulted under Slayton.

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C.
Petitioner complains in claim (C) that he obtained an extension of time to note his appeal
from the Supreme Court of Virginia, noted the appeal within that time period, and yet the
Supreme Court of Virginia dismissed the appeal. Petitioner complains in claim (F) that the
Supreme Court of Virginia erred by denying petitioner’s motion for leave to pursue a delayed
appeal. The Supreme Court of Virginia dismissed both claims.
In order to perfect an appeal from the Court of Appeals of Virginia, the Rules of the
Supreme Court of Virginia required petitioner to note an appeal with the Court of Appeals of
Virginia and to file a petition for appeal with the Supreme Court of Virginia. Va. Sup. Ct. R.
5:14 (a), 5:17. Petitioner did not timely file a petition for appeal per state law. Furthermore,
petitioner did not qualify for a delayed appeal, pursuant to Virginia Code § 19.2-321.2(D),
because he was proceeding pro se when he failed to perfect an appeal.
“Matters of state law which do not implicate federal constitutional protections are not
cognizable under § 2254.” Inge v. Procunier, 758 F.2d 1010, 1014 (1985). See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (holding that it is not the province of federal habeas to
reexamine state law decision on state law questions). The Supreme Court of Virginia’s dismissal
of claims (C) and (F) pursuant to state procedural laws is not reviewable under § 2254(a), and
claims (C) and (F) must be dismissed.
III.
For the foregoing reasons, the court grants respondent’s motion to dismiss and dismisses
the petition for a writ of habeas corpus. Based upon the court’s finding that petitioner has not

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made the requisite substantial showing of a denial of a constitutional right as required by 28
U.S.C. § 2253(c), a certificate of appealability is denied.
The Clerk is directed to send a copy of this Memorandum Opinion and the accompanying
Order to petitioner and counsel of record for respondent.
Entered: December 26, 2012

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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