Matherly v. Director
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 7/27/2017. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LAWRENCE MATHERLY, JR.,
DIRECTOR, V.A. D.O.C.,
CASE NO. 7:16CV00459
By: Norman K. Moon
Senior United States District Judge
Lawrence Matherly, Jr., a Virginia inmate proceeding pro se, filed this petition for a writ
of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a
judgment by the Danville City Circuit Court for forcible sodomy, consensual sodomy, and
indecent liberties by a custodian. Respondent filed a motion to dismiss Matherly’s § 2254
petition, and Matherly responded, making the matter ripe for disposition. After review of the
record, I grant the motion to dismiss.
Factual and Procedural Background
In February 2013, the victim’s mother discovered troubling Facebook messages between
the victim,1 and Matherly.2 At Matherly’s trial, the victim testified that, in September 2012,
Matherly had rubbed her breasts over and underneath her shirt, rubbed her vagina over and
underneath her underwear, and then he rubbed his penis “next to my pussy.”3 Trial Tr. vol. 2, 37
The victim was a fifteen year old girl that “had serious medical conditions and a
‘significant intellectual deficiency.’ As a result of her mental disability, the victim’s ‘mental
age’ was approximately ‘seven years old.’ She had ‘an inability to understand a lot of life
situations . . . appropriate to her age level.’” Matherly v. Commonwealth, No. 128-14-3, 2 (Va.
Ct. App. Oct. 28, 2014).
At the time, Matherly was the victim’s step-father because he was married to the
Matherly had taught her the term. Matherly, No. 128-14-3, at 2-3.
(Sep. 25, 2013). Further, the victim stated that Matherly had touched her butt with his hand and
had put “his dick . . . in [her] butt,” and that Matherly had put “[h]is private in [her] butt” again
in January. Trial Tr. vol. 2, at 39. She said that each time Matherly went “[i]n and out” of her,
and that she bled when she used the bathroom afterward. Id. at 50.
After a bench trial, the Danville City Circuit Court convicted Matherly of two counts of
forcible sodomy, two counts of consensual sodomy, and three counts of indecent liberties by a
custodian, and sentenced him to an active sentence of twenty-four years. Matherly appealed, but
the Virginia Court of Appeals and the Virginia Supreme Court denied his petitions. In 2015,
Matherly filed a habeas petition in the Virginia Supreme Court, which the court dismissed on
June 29, 2016.
Matherly raises six claims in his current petition:
1. Petitioner was convicted twice for the same offenses in violation of the
Double Jeopardy Clause;
2. The Commonwealth presented no evidence corroborating the complaining
3. The Commonwealth did not prove the mental incapacity of the complaining
witness in violation of the Due Process Clause;
4. The Commonwealth did not prove that a third party was involved in the
forcible sodomies in violation of the Due Process Clause;
5. The Commonwealth did not prove that the petitioner was acting in a custodial
capacity when he committed the indecent liberties offenses in violation of the
Due Process Clause; and
6. The prosecution did not disclose exculpatory evidence under Rule
3A:11(b)(1), RPC Rule 3.8(d), and Brady v. Maryland 373 U.S. 83 (1963) in
violation of the Due Process Clause.
Respondent has conceded that Matherly has exhausted his claims in state court.
Standard of Review
To obtain federal habeas relief, a petitioner must demonstrate that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Under 28 U.S.C. § 2254(d), however, the federal habeas court may not grant a writ of habeas
corpus based on any claim that a state court decided on the merits unless that adjudication:
(1) Resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) Resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). “Where, as here, the state court’s application of governing federal law is
challenged, it must be shown to be not only erroneous, but objectively unreasonable.”
Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
Under this standard, “[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so long as fair-minded
jurists could agree on the correctness of the state court’s decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011) (omitting internal quotations).
A. Procedural Default
The United States Supreme Court has long held that a state prisoner’s habeas claims may
not be entertained by a federal court “when (1) ‘a state court [has] declined to address [those]
claims because the prisoner had failed to meet a state procedural requirement,’ and (2) ‘the state
judgment rests on independent and adequate state procedural grounds.’” Maples v. Thomas, 565
U.S. 266, 280 (2012) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)). A procedural rule is
adequate “if it is regularly or consistently applied by the state court,” and independent “if it does
not ‘depend on a federal constitutional ruling.’” Yeatts v. Angelone, 166 F.3d 255, 260 (4th
Cir. 1999) (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
On habeas review, the Virginia Supreme Court found Claims 2 through 6 procedurally
defaulted under Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). Parrigan is an adequate and
independent state procedural bar that arises when a petitioner could have raised an issue at trial
and on direct appeal, but failed to do so. See Vinson v. True, 436 F.3d 412, 417 (4th Cir. 2006)
(Parrigan is an adequate and independent bar.). Matherly failed to bring Claims 2 through 6 at
trial or during his direct appeal proceedings; therefore, they are procedurally barred under
“If a claim is defaulted, then petitioner must fail on that claim unless he can show that
cause and prejudice or a fundamental miscarriage of justice might excuse his default.” Bell v.
True, 413 F. Supp. 2d 657, 676 (W.D. Va. 2006) (citing Fisher v. Angelone, 163 F.3d 835, 844
(4th Cir. 1998)).
The “cause” prong requires a petitioner to demonstrate that there were
“objective factors,” external to his defense, which impeded him from raising his claim at an
earlier stage. Murray v. Carrier, 477 U.S. 478, 488 (1986). The “prejudice” prong requires a
petitioner to show that the alleged constitutional violation worked to his actual and substantial
disadvantage, infecting his entire trial with error of a constitutional magnitude. Id. at 495.
Meanwhile, the fundamental miscarriage of justice exception requires a petitioner to prove his
actual innocence. Schlup v. Delo, 513 U.S. 298, 324-25 (1995).
Matherly never offers any information regarding his failure to prevent his default;
therefore, Claims 2 through 6 are barred from federal habeas review.4
In Matherly’s only undefaulted claim, he contends that the trial court violated the Double
Jeopardy Clause by sentencing him twice for the same offenses under Va. Code
§§ 19.2-67.1(A)(2) and 19.2-361(B).
The Fourth Circuit has set forth the principles of the Double Jeopardy Clause as follows:
The Double Jeopardy Clause states that no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb.” In the context of a single
criminal prosecution, the clause “protects against multiple punishments for the
same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969). This
guarantee simply prevents “the sentencing court from prescribing greater
punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366
(1983); United States v. Martin, 523 F.3d 281, 290 (4th Cir. 2008). It does not,
however, prohibit the legislature from punishing the same act or course of
conduct under different statutes. Albernaz v. United States, 450 U.S. 333, 344
Thus, when a defendant violates more than one statute in a single course
of conduct, a court may impose multiple punishments without violating the
Double Jeopardy Clause if the legislature authorizes it to do so. United States v.
Terry, 86 F.3d 353, 355 (4th Cir. 1996). Ultimately, our “only task is to
determine whether Congress intended to impose multiple punishments.” United
States v. Chandia, 514 F.3d 365, 372 (4th Cir. 2008). For “the power to define
criminal offenses and to prescribe the punishments to be imposed upon those
found guilty of them  resides wholly with the Congress.” Whalen v. United
States, 445 U.S. 684, 689 (1980).
To make that determination, we are guided by the Supreme Court’s
decision in Blockburger v. United States, 284 U.S. 299 (1932). “[W]here the
In his Response, Matherly states that the state court’s decision was contrary to, or
involved an unreasonable application of, federal law, and was based on an unreasonable
determination of facts. Further, he asks the court to excuse his default because of the failure of
his court-appointed attorney to raise the issues during his direct review proceedings. However,
he asserts no evidence in support of his claims. “Bare allegations” of constitutional error are not
sufficient grounds for habeas relief; the petitioner must proffer evidence to support his claims.
Nickerson v. Lee, 971 F.2d 1125, 1135 (4th Cir. 1992). Therefore, the court need not address
potential excuses for his default. See Burket v. Angelone, 208 F.3d 172, 183 n.10 (4th Cir. 2000)
(holding that as petitioner bears burden to raise cause and prejudice or actual innocence, a court
need not consider either if not asserted by petitioner).
same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires a proof of a fact which the other does not.” Id. at
304. When applying this test in multiple punishment cases, our “exclusive focus”
is “upon the elements of the statutory provisions in question,” not the particular
facts of the underlying case. United States v. Allen, 13 F.3d 105, 109 n.4 (4th Cir.
1993). If each provision requires proof of a distinct element, “then multiple
punishments are presumed to be authorized absent a clear showing of contrary
Congressional intent.” Terry, 86 F.3d at 356 (citing Albernaz, 450 U.S. at 340).
United States v. Ayala, 601 F.3d 256, 264-65 (4th Cir. 2010).5
The Virginia Court of Appeals discussed the issue at length:
[Matherly] was indicted for and convicted of forcible sodomy, in violation of
Code § 18.2-67.1(A)(2), and sodomy, in violation of Code § 18.2-361(B). See R.
at 71. The crime of forcible sodomy prohibits “cunnilingus, fellatio, anilingus, or
anal intercourse when “[t]he act is accomplished against the will of the
complaining witness, by force, threat or intimidation of or against the
complaining witness or another person, or through the use of the complaining
witness’s mental incapacity or physical helplessness.” Code § 18.2-61.1(A)(2).
The Commonwealth prosecuted [Matherly] for forcible sodomy due to the
victim’s mental incapacity. The crime of sodomy under Code § 18.2-361(B)
prohibits carnal knowledge “by the anus or by or with the mouth” of a victim who
is the “daughter or granddaughter, son or grandson, brother or sister, or father or
mother” of the perpetrator. Step-parents and step-children are included in the
definitions of parent and child. Code § 18.2-361(C). Furthermore, “[t]he term
‘carnal knowledge’ has been construed to include ‘any sexual bodily connection,
not simply sexual intercourse.’” Santillo v. Commonwealth, 30 Va. App. 470,
483, 517 S.E.2d 733, 740 (1999) (quoting Shull v. Commonwealth, 16 Va. App.
667, 669, 431 S.E.2d 924, 925 (1993), aff’d 247 Va. 161, 440 S.E.2d 133 (1994)).
Thus, while both Code §§ 18.2-67.1(A)(2) and 18.2-361(B) prohibit
sodomy, § 18.2-67.1(A)(2) requires “the use of the complaining witness’s mental
incapacity” or other “force, threat or intimidation,” and § 18.2-361(B) requires
one of the listed familial relationships. In the absence of the victim’s mental
incapacity, [Matherly] could not be convicted under Code § 18.2-67.1(A)(2).
Likewise, in the absence of the familial relationship between [Matherly] and the
victim—that of step-father and step-daughter—[Matherly] could not be convicted
under Code § 18.2-361(B). Each provision requires an element that the other
does not. It is possible for a perpetrator to violate either one of the provisions
In Ayala, the Fourth Circuit decided that murder conspiracy under 18 U.S.C. §
1959(a)(5) and racketeering conspiracy under 18 U.S.C. § 1962(d) were separate offenses under
RICO because “each offense requires proof of at least one fact that the other does not. That is, a
jury could find a defendant guilty of one offense without necessarily finding him guilty of the
other and vice-versa.” 601 F.3d at 265.
without violating the other. In this case, therefore, [Matherly]’s acts of
sodomizing his mentally incapacitated step-daughter satisfied the elements of two
separate offenses: forcible sodomy, in violation of Code § 18.2-67.1(A)(2), and
sodomy, in violation of Code § 18.2-361(B).
To the contrary, [Matherly] asserts that this Court has already held that
convictions under both Code §§ 18.2-67.1 and 18.2-361, “when they constitute
the same criminal act, violate Double Jeopardy provisions.” Pet. for Appeal at 15;
see Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff’d
upon reh’g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994). However, since
Chaine was decided, Code § 18.2-361 has been amended three times. As
applicable at the time Chaine was decided, Code § 18.2-361 stated:
If any person shall carnally know in any manner any brute animal,
or carnally know any male or female person by the anus or by or
with the mouth, or voluntarily submit to such carnal knowledge, he
or she shall be guilty of a Class 6 felony; provided, that if a parent
commits such an act with his or her child, and such child is at least
thirteen but less than fifteen years of age at the time of the offense,
such parent shall be guilty of a Class 3 felony.
Code § 18.2-361 (1992) (emphasis added). Chaine held that “every instance of
cunnilingus, fellatio, anallingus [sic], or anal intercourse in violation of Code §
18.2-67[.1](A) also constitutes a violation of Code § 18.2-361.” 17 Va. App. at
185, 436 S.E.2d at 191. “By adding the language of the ‘provided’ clause, the
legislature merely decreed an enhanced punishment,” as opposed to a separate
offense, “for a defined class of ‘any person’ (i.e., a parent) who shall commit the
proscribed act with a defined class of persons (i.e., his or her child at least thirteen
but less than fifteen years of age).” Id. at 184, 436 S.E.2d at 190 (first emphasis
added). The Chaine court explained further by noting, “That the proviso does not
create a separate offense is manifest by the use in the proviso of the terms ‘such
an act’ and ‘the offense,’ both of which relate back to the offense defined in the
main portion of the statute. Id. In a situation in which “the defendant is a parent
who sodomized his thirteen or fourteen year old child[,] . . . the defendant is
guilty under the main portion of [Code § 18.2-361],” but the proviso will function
“to enhance the punishment.” Id. at 184-85, 436 S.E.2d at 190. Thus, when
Chaine, who raped and sodomized his thirteen year old daughter, was convicted
of forcible sodomy, in violation of Code § 18.2-67.1, “[proof of no additional
fact [was] required to sustain a conviction under Code § 18.2-361.” Id. at 185,
436 S.E.2d at 190-91. His punishment simply would have been enhanced under
Code § 18.2-361. For that reason, the Chaine court concluded “that Chaine
suffered multiple punishments for the same offense in violation of double
jeopardy protections.” Id.
However, in 1993 (after the prosecution of Chaine had already begun), the
legislature divided Code § 18.2-361 into two subsections. Subsection (A)
prohibited carnal knowledge “in any manner” of “any brute animal” and carnal
knowledge of “any male or female person by the anus or by or with the mouth,”
while subsection (B) prohibited carnal knowledge “by the anus or by or with the
mouth” of the perpetrator’s “daughter or granddaughter, son or grandson, brother
or sister, or father or mother,” with an enhanced penalty provision based on the
victim’s age. Code § 18.2-361 (1993). When the legislature separated the statute
into two subsections, it deleted the “provided” clause containing the terms “such
an act” and instead defined the relevant act in each subsection. In 2005, the
legislature again amended Code § 18.2-361 to add subsection (C), which specified
that step-parents, step-grandparents, step-children, and step-grandchildren were
included in the familial relationships mentioned in subsection (B). Code
§ 18.2-361 (2005). Finally, in 2014 (after the prosecution of [Matherly]), the
legislature amended Code § 18.2-361 to eliminate sodomy from subsection (A),
leaving on bestiality in subsection (A), without changing subsections (B) or (C).
Code § 18.2-361 (2014). That most recent amendment came after the United
States Court of Appeals for the Fourth Circuit held that the portion of Code
§ 18.2-361(A) that “prohibit[ed] sodomy between two persons without any
qualification” was unconstitutional in light of the United States Supreme Court’s
decision in Lawrence v. Texas, 539 U.S. 558 (2003). MacDonald v. Moose, 710
F.3d 154, 166 (4th Cir. 2013). The Fourth Circuit, recognizing the distinction
between subsections (A) and (B) of Code § 18.2-361 (2013), specifically noted
that subsection (B), “which criminalized incestuous sodomy involving both
minors and adults,” as well as the portion of subsection (A) “that outlaws
bestiality,” “might well survive review under Lawrence.” Id. at 167.
The post-Chaine amendments of Code § 18.2-361 completely change the
double jeopardy implications of the statute. While the text analyzed by Chaine
was one section subject to an enhanced punishment proviso, the text under which
[Matherly] was prosecuted had two distinct subsections. Each subsection defined
the specific elements required for a conviction without cross-referencing the other
subsection. Because he sodomized his step-daughter, [Matherly] was indicted for
and convicted of sodomy, in violation of Code § 18.2-361(B), which required a
familial relationship not relevant to Code § 18.2-67.1(A)(2). Because he took
advantage of his step-daughter’s mental incapacity, he was also indicted for and
convicted of forcible sodomy, in violation of Code § 18.2-67.1(A)(2), which
required the victim’s mental incapacity—an element wholly irrelevant to Code
§ 18.2-361(B). Therefore, [Matherly] was convicted of two separate offenses,
and his convictions do not violate double jeopardy protections.
Matherly, No. 128-14-3, 6-9.
I agree with the state court’s comprehensive analysis.
At the time of Matherly’s
prosecution, both Va. Code §§ 18.2-67.1(A)(2) and 18.2-361(B) criminalized the same particular
sex acts; however, under Blockburger, Matherly’s convictions do not violate the Double
Jeopardy Clause because each statutory provision required the Commonwealth to prove “a fact
that the other does not” regarding the circumstances of the sex act. 284 U.S. at 304. Forcible
sodomy pursuant to Va. Code § 18.2-67.1(A) made sodomy with a mentally or physically
incapacitated person illegal. Meanwhile, Va. Code § 18.2-361(B) requires the Commonwealth to
prove that the sodomy occurred within specific familial relationships, subject to enhancement for
victims in a defined age range.
I conclude that the state court’s adjudication was not contrary to, or an unreasonable
application of, federal law, or an unreasonable determination of facts. Therefore, I grant the
motion to dismiss as to Claim 1.
For the reasons stated, I GRANT the motion to dismiss.
Matherly’s petition is
procedurally defaulted as to Claims 2 through 6, and fails on the merits as to Claim 1. An
appropriate order will enter this day.
The Clerk is directed to send copies of this memorandum opinion and accompanying
order to Matherly and to counsel of record for Respondent. Further, concluding that petitioner
has failed to make a substantial showing of the denial of a constitutional right as required by 28
U.S.C. § 2253(c)(1), a certificate of appealability is DENIED.
ENTER: This _____ day of July, 2017.
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