Garnett v. Clarke

Filing 64

OPINION. Signed by Senior Judge James P. Jones on 9/29/2022. (tvt)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
HOWARD Z. GARNETT,
Petitioner,
v.
HAROLD CLARKE, DIRECTOR,
DEPARTMENT OF CORRECTIONS,
Respondent.

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Case No. 7:14CV00452
OPINION
JUDGE JAMES P. JONES

Alexander L. Taylor, Jr., ALEX TAYLOR LAW, PC, for Petitioner; Matthew P.
Dullaghan, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Respondent.
Petitioner Howard Z. Garnett, by counsel, has moved, pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure, for reconsideration of this court’s 2015
dismissal of his habeas corpus petition under 28 U.S.C. § 2254. For the reasons
stated, I will deny the motion.
I. PROCEDURAL BACKGROUND.
Following a two-day jury trial, on February 19, 2004, a Madison County,
Virginia, jury convicted Garnett for the July 24, 2003, rape of victim VD, animate
object penetration, third-offense domestic assault, and abduction with intent to
defile. The jury acquitted Garnett of raping VD on January 19, 2003, and on April

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29, 2003. On December 1, 2004, the court imposed the jury’s recommended
sentence of 65 years.
After exhausting his state court direct appeals and state habeas remedies, on
August 26, 2014, Garnett, by counsel, timely filed his § 2254 petition in this court,
challenging the above convictions. His petition raised allegations of ineffective
assistance of counsel, denial of the right to testify on his own behalf, and due process
violations arising from prosecutorial misconduct in allegedly suppressing
exculpatory evidence. The court found that Garnett defaulted some of his ineffective
assistance claims. For the remaining claims, the state habeas court’s decision on
ineffective assistance of counsel and denial of the right to testify was based on a
reasonable determination of facts and a reasonable application of federal law. The
court also held that Garnett exhausted his state remedies on the prosecutorial
misconduct claim during his direct appeal.
On the prosecutorial misconduct claim, the Supreme Court of Virginia had
concluded that the Commonwealth had disclosed all material exculpatory and
impeachment evidence by providing summaries of VD’s interviews with law
enforcement, rather than verbatim transcripts, to the defense.

Garnett v.

Commonwealth, 657 S.E.2d 100, 108 (Va. 2008). The state court further held that
Garnett suffered no prejudice from not receiving the full transcripts of the
interviews, because the transcripts did not present impeachment evidence so
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different from the disclosed summaries that they raised a reasonable probability of a
different outcome. Id. at 112. Finding that the state court’s decision was based on a
reasonable determination of facts and a reasonable application of federal law, this
court dismissed the § 2254 petition.
Garnett filed a pro se motion for reconsideration under Rule 59(e) of the
Federal Rules of Civil Procedure, requesting the court to consider the deposition
transcript of VD’s testimony in a civil trial against him, taken the year after Garnett’s
criminal conviction. The deposition testimony differed from VD’s trial testimony
in several respects and contradicted one of her statements to investigators after the
initial investigation. Garnett asked the court to consider this evidence, along with
the previously argued evidence,1 to show prosecutorial misconduct in suborning
perjured testimony, in violation of his due process rights. Because the deposition
transcript had been provided to the state court and argued to the state court, but no
opinion rendered on that issue, the court reconsidered Garnett’s prosecutorial
misconduct claim de novo. The court held that the deposition transcript, added to

1

The previous evidence, attached as Exhibits to the original § 2254 petition,
included the full transcripts of VD’s interviews with Investigator Michael on July 24, 2003,
and July 31, 2003 (Ex. at 9 – 25, ECF No. 1-1) and copies of invoices and shipping tickets
from Spring Water Farm for purchases made by Garnett and VD on the afternoon of April
29, 2003. In her statement of July 31, 2003, VD told Investigator Michael that Garnett
forced her to drive to Spring Water Farm in Harrisonburg on April 29 after he raped her.
She did not mention the trip to Harrisonburg in her criminal trial testimony. In the state
habeas hearing, she testified that she did not believe she had gone to Harrisonburg with
Garnett on April 29. In her 2005 deposition, she denied going to Harrisonburg that day.
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the previous evidence and argument, did not change the analysis and did not create
a reasonable probability of a different outcome. In denying Garnett’s Rule 59(e)
motion, the court quoted from its previous opinion:
[A]ssuming . . . that all of the evidence Garnett claims was
missing from the trial had been presented to the jury, that
assumption still does not raise a reasonable probability
that the outcome would have been different. The
Commonwealth presented a good deal of evidence beyond
[VD’s] testimony, including physical and expert evidence,
that supported conviction. Defense counsel impeached
[VD] and challenged her credibility multiple times and
presented much evidence in support of its theory that [she]
was a disgruntled ex-girlfriend. The jury could reasonably
have credited all of the missing evidence and still
convicted Garnett based on the Commonwealth’s
presentation.
Garnett v. Clarke, No. 7:14CV00452, 2015 WL 7571949, at *4 (W.D. Va. Nov. 24,
2015) (Conrad, J.) (quoting Garnett v. Clark, No. 7:14-CV-00452, 2015 WL
5112967, at *8 (W.D. Va. Aug. 31, 2015)).
Garnett appealed the denial of his habeas petition and of his Rule 59(e)
motion. The court of appeals dismissed the appeal. Garnett v. Clarke, 642 F. App’x
(4th Cir. 2016) (unpublished).
Garnett next filed a pro se motion for reconsideration under Rule 60(b)(3) of
the Federal Rules of Criminal Procedure, alleging fraud by the Commonwealth and
by VD in procuring his criminal conviction. Explaining that Rule 60(b)(3) would
require proof of fraud on the federal habeas court, rather than fraud on the state court
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presiding over the criminal trial, the court construed Garnett’s motion as a
subsequent habeas petition, raising the same issues previously adjudicated in his
original habeas, and dismissed the pleading as required by 28 U.S.C. § 2244(b)(1).
Mem. Op. 2, Mar. 22, 2016, ECF No. 36. The court of appeals dismissed Garnett’s
appeal. Garnett v. Clarke, 670 F. App’x 111 (4th Cir. 2016) (unpublished).
In his current counseled motion, Garnett argues that the Supreme Court’s
opinion in Buck v. Davis, 137 S. Ct. 759 (2017), constitutes a change in law, such
that the Rule 60 motion previously filed should not have been dismissed as
successive.

Under the circumstances of this case, he argues, extraordinary

circumstances warrant the court in re-opening the previous habeas judgment and
granting relief on his Brady2 violation/prosecutorial misconduct claim. He further
argues that no procedural bars apply due to Garnett’s actual innocence, citing
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), and that review of all the evidence
would show, more likely than not, that no reasonable juror would have convicted
Garnett.
II. DISCUSSION.
Buck is inapplicable to this case. In Buck, the district court had dismissed an
ineffective assistance of trial counsel claim as procedurally defaulted, because the

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Brady v. Maryland, 373 U.S. 83 (1963) (recognizing a prosecutor’s duty, under
due process principles, to disclose potentially favorable evidence in its possession to the
defendant).
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claim had not been raised in the state court. Some years later, after the court’s
decisions in Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S.
413 (2013), the district court would have been able to consider Buck’s ineffective
assistance of trial counsel claim so long as the claim had some merit, because Texas
procedure effectively limited ineffective assistance claims to post-conviction
proceedings. Buck filed a Rule 60(b)(6) motion to reopen his habeas petition,
alleging extraordinary circumstances justifying relief. Buck, 137 S. Ct. at 772. The
extraordinary circumstances included the egregious nature of the defaulted
ineffectiveness claim,3 the new procedural rule that would now allow the defaulted
claim to be considered, and that the state had confessed error and waived procedural
defenses in six other cases raising the same underlying issue. The district court
denied relief. The Supreme Court held that Buck had demonstrated extraordinary
circumstances and was entitled to relief, noting that he would not have been entitled
to the relief unless Martinez and Trevino would govern the district court’s review of
the defaulted issue instead of the cause and prejudice standard in Coleman v.
Thompson, 501 U.S. 722, 752–53 (1991). Specifically, if the new standard set forth

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Buck’s attorney offered the testimony of a psychologist at the sentencing phase of
the trial who testified that Buck was statistically more likely to act violently because he
was black. The attorney specifically asked the doctor about the role of race. The
prosecution also asked about the racial issue on cross-examination and relied upon the
doctor’s answers in his closing argument. The doctor’s report, offered as an exhibit at trial,
contained the same statement, and a copy of the report was specifically requested by the
jury during deliberations. Buck, 137 S. Ct. at 764.
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in Martinez and Trevino would not govern, “his claim would remain unreviewable,
and Rule 60(b)(6) relief would be inappropriate.” Buck, 137 S. Ct. at 780.
In the present case, despite Garrett’s argument to the contrary, the Brady claim
was not defaulted. The claim was decided against him on the merits by the trial
court, the full Court of Appeals of Virginia, and the Supreme Court of Virginia. The
Brady issue was discussed in detail in both appellate opinions.4

Garnett v.

Commonwealth, 642 S.E.2d 782, 785–88 (Va. Ct. App. 2007); Garnett, 657 S.E.2d
at 106–12.

The trial court and the appellate courts compared the statement

summaries with the statement transcripts and with the trial testimony, concluding
that the Commonwealth had provided all material exculpatory evidence before trial.
In ruling on his original federal habeas petition, this court followed the
appropriate standard required by 28 U.S.C. § 2254(d), that relief cannot be granted
unless the state court’s opinion was an unreasonable determination of the facts,
contrary to clearly established law as set forth by the United States Supreme Court,
or an unreasonable application of federal law. That standard of review has not
changed. An unreasonable application of federal law is different from an incorrect
application of federal law. Williams v. Taylor, 529 U.S. 362, 410 (2000). An

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Garnett’s arguments in his habeas petition and in his motions for reconsideration
all track the logic of the dissenting opinion from the Court of Appeals of Virginia, which
held a different view on how to apply Brady to the facts of Garnett’s case. Garnett, 642
S.E. 2d at 789–97 (Haley, J., dissenting).
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unreasonable determination is a “substantially higher threshold,” more than just an
incorrect determination. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). This
standard of review promotes the principles of finality, comity, and federalism.
Coleman, 501 U.S. at 730–31. The state court’s decision must be given the benefit
of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
The standard of review that the district court is required to follow has not
changed. Therefore, as the court noted in Buck, Garnett’s request is inappropriate
for Rule 60(b) relief. His request is not directed to a procedural aspect of the
previous habeas decision; rather, Garnett seeks a different adjudication of the merits
of his claim. District courts are required to treat motions under Rule 60(b) as
successive § 2254 petitions when the motion seeks “an adjudication on the merits of
the petitioner’s claims.” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (citation
omitted). Because Garnett seeks adjudication of this claim on the merits, and it is
the same claim that has already been decided, the motion is a successive petition
raising a claim that was presented in his prior petition, and I must dismiss it under
28 U.S.C. § 2244(b)(1).
Further, Garnett has not met the criteria for moving forward with an actual
innocence claim. First, because he has already filed a federal petition challenging
his 2004 convictions and that petition was decided on the merits, 28 U.S.C. §
2244(b)(3)(A) requires authorization by the circuit court of appeals before a second
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or subsequent petition attacking the same conviction may be filed in the district
court. This preauthorization is required even if the petitioner asserts a claim of actual
innocence. 28 U.S.C. § 2244(b)(2)(B).
Second, Garnett has not offered new evidence to support his claim of actual
innocence, as required by Schlup v. Delo, 513 U.S. 298, 327 (1995). The new
evidence must be something that the petitioner could not have previously discovered
through the exercise of due diligence. 28 U.S.C. § 2244(b)(2)(B)(i). Nothing
offered with Garnett’s current motion is new. The transcripts of VD’s statements to
the police were attached to his original habeas. The state courts reviewed those
transcripts on direct appeal. VD’s medical records were provided to Garnett in
discovery. The transcript of VD’s 2005 deposition in the civil case was provided to
the state habeas court and was considered on the merits by this court in Garnett’s
Rule 59(e) motion. In short, Garnett has not offered anything new in support of a
claim for actual innocence. Further, even if the evidence were new, the court already
decided, in ruling on the Rule 59(e) motion, that the evidence is not sufficient to
show a reasonable probability that the results would have been any different, the
second requirement of an actual innocence claim, as explained in Schlup.
III. CONCLUSION.
Garnett’s Rule 60(b) motion seeks adjudication of his original habeas claim
on the merits and as such, it is a successive habeas petition that must be dismissed.
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Further, he has not obtained preauthorization from the court of appeals to file a claim
based on newly discovered evidence showing actual innocence, nor could he obtain
such authorization because he has offered no new evidence. Accordingly, his motion
is construed as a successive habeas petition, presenting the same issue raised in his
previous petitions, and I will dismiss it.
I decline to issue a certificate of appealability because Garnett has not made a
substantial showing of the denial of a constitutional right and reasonable jurists
would not find the court’s procedural ruling to be debatable or wrong.
A separate Final Order will be entered herewith.
DATED: September 29, 2022
/s/ JAMES P. JONES
Senior United States District Judge

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