Warwick v. Clarke

Filing 19

OPINION. Signed by Judge James P. Jones on 10/16/2017. (tvt)

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

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Case No. 7:17CV00023
OPINION
By: James P. Jones
United States District Judge

Michael G. Warwick, Pro Se Petitioner; Robert H. Anderson, III, Senior
Assistant Attorney General, Richmond, Virginia, for Respondent.
In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254,
the petitioner Michael Warwick, a Virginia inmate, challenges the validity of his
confinement on a judgment by the Nelson County Circuit Court. After review of
the record, I conclude that the respondent’s Motion to Dismiss must be granted,
because Warwick’s petition is partially procedurally barred and ultimately without
merit.
I. BACKGROUND.
On August 16, 2013, Warwick was recovering from spinal surgery at the
Lovingston Health and Rehabilitation Center, a nursing home facility. Lakisha
Townes, the director of discharge at the facility, entered Warwick’s room to

discuss his scheduled discharge on August 18.1 Townes also told Warwick that the
center intended to move him into a different room. Even after staff offered to help
pack, Warwick became increasingly agitated and began cursing and shoved
Townes. Townes left the room and a nurse called 911. While waiting for the
police, nurses continued trying to calm Warwick.
When Deputy Sheriff Brooks arrived, Warwick was pacing back and forth
between his room and the nursing station. After attempting to speak to Warwick
multiple times, Brooks finally placed a hand on Warwick’s arm to prevent him
from moving. Warwick swung his arm backwards to break free of Brooks’ grasp
and threw several punches, striking Brooks in the face. Brooks informed Warwick
that he was under arrest, then disengaged and waited for backup.
Shortly after, Sergeant Davis responded to the call, and the two officers
moved to arrest Warwick. Davis and Brooks attempted to gently force Warwick to
the floor, but a violent struggle ensued and Warwick struck Brooks in the chest and
face and Davis in the face. Brooks testified that Warwick struck him eight or nine
times but that he did not incur any lasting injuries. At some point during the
scuffle, Warwick also kicked Davis in the face, breaking the sergeant’s glasses.
The struggle on the floor lasted approximately two to three minutes. Neither

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The facts are taken from the state court record.
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officer knew what medications Warwick was taking nor his overall psychological
state — they only knew that he appeared extremely agitated.
Warwick testified that he remembered taking painkillers and being asked by
the nurses to move several times, but that he did not recall Brooks asking him to
calm down or put his arms down. He did recollect Brooks grabbing him by both
arms and pushing his back into an ice machine, which Warwick said was
extremely painful because he still had stitches in his back. He claimed that he did
not understand why Deputy Brooks was there, and that he had approached the
nurses’ station to request that they empty blood out of his medical pouch. He
asserted that he complied with the officers’ demand to put his arms behind his
back, but that he was hurt badly when Brooks and Davis wrestled him to the
ground. He testified that he did not remember much of the struggle due to his
medication, but that he knew that he did not intend to strike Brooks or Davis.
Warwick described the interaction as an example of police brutality.
The jury convicted Warwick and the Nelson County Circuit Court sentenced
him to six years in prison. Warwick appealed, but both the Court of Appeals of
Virginia and the Supreme Court of Virginia denied his petitions. Warwick did not
raise any of his present allegations during his direct appeals; however, he did raise
the claims in a habeas petition in the Supreme Court of Virginia, which was
denied.

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On January 19, 2017, Warwick filed a Petition for a Writ of Habeas Corpus
in this court, alleging the following:
1. Warwick’s due process rights were violated because the circuit
court order book did not contain an entry that the grand jury had
properly indicted petitioner, as required under Virginia law;
2. Trial counsel was ineffective for failing to inspect the grand jury
record, thus not realizing that the record was defective; and
3. Trial counsel was ineffective for not interviewing Warwick’s
surgeon and not reviewing or subpoenaing Warwick’s medical
chart to show that Warwick’s physical health was such that he
could not have committed the offenses.
Respondent moves to dismiss Warwick’s petition as procedurally barred and
without merit.
II. Discussion.
A. 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). 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:

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(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 ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To state a constitutional claim for ineffective assistance of counsel, a
petitioner must satisfy the two-pronged Strickland v. Washington test by showing
(1) “that counsel’s performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” 466 U.S. 668, 686-687 (1984). “Judicial
scrutiny of counsel’s performance must be highly deferential,” id. at 689, and
counsel is “permitted to set priorities, determine trial strategy, and press those
claims with the greatest chances of success,” United States v. Mason, 774 F.3d
824, 828 (4th Cir. 2014).

When reviewing a Strickland claim under the

Antiterrorism and Effective Death Penalty Act of 1996, the court’s review is
“doubly” deferential. See Harrington, 562 U.S. at 105.
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For Strickland’s first prong, a petitioner must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687-88.

“The

question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or
most common custom.” Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S.
at 690).
For the second prong, a petitioner must demonstrate that, but for counsel’s
alleged error, there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
Lastly, an attorney’s “[f]ailure to raise a meritless argument can never
amount to ineffective assistance” because the result of the proceeding would not
have been different had the attorney raised the issue. Moore v. United States, 934
F. Supp. 724, 731 (E.D. Va. 1996).
B. Exhaustion and Procedural Default.
Warwick properly exhausted his current claims when he presented them to
the Supreme Court of Virginia in his state habeas petition. See Baker v. Corcoran,
220 F.3d 276, 288 (4th Cir. 2000).

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However, Claim 1 is procedurally defaulted under Slayton v. Parrigan, 205
S.E.2d 680 (1974), because Warwick could have raised the claim at trial or on
direct appeal, but failed to do so. Parrigan is an adequate and independent state
law procedural ground that precludes federal habeas review from considering the
merits of claims. Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998).
“If a claim is procedurally 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, 163 F.3d at 844). The “cause” prong requires a petitioner
to demonstrate that there were “objective factor[s],” 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.
“[T]he ‘cause and prejudice’ test is framed in the conjunctive, the absence of cause
makes unnecessary an inquiry into prejudice.” Davis v. Allsbrooks, 778 F.2d 168,
176 (4th Cir. 1985). Meanwhile, the fundamental miscarriage of justice exception
requires a petitioner to proffer a colorable claim of actual innocence. See Schlup v.
Delo, 513 U.S. 298, 324-25 (1995).

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Warwick has not demonstrated cause and prejudice or a miscarriage of
justice to excuse his default. He has not proffered evidence that he was unable to
comply with the state procedural rule or a colorable claim of actual innocence.
Therefore, Claim 1 is procedurally barred under Parrigan.
C. Merits.
In Claim 2, Warwick contends that counsel was ineffective for failing to
discover that the indictments were deficient. However, on habeas review, the
Supreme Court of Virginia determined:
The record, including the circuit court’s January 28, 2014 grand jury
order and grand jury action report of the same date, demonstrates the
grand jury, after deliberating, returned to open court and announced it
had returned true bills Case Nos. CR 13000209-00 and CR 1300021000, from which petitioner’s convictions arise. Moreover, the clerk of
the circuit court recorded these indictments electronically, as [Va.]
Code § 17.1-124 and -240 permit.
Warwick v. Clarke, No. 160219, slip op. at 2 (Va. Aug. 3, 2016). 2 It is clear from
the record that Warwick’s allegation is unfounded, and an attorney’s failure to
raise a meritless argument cannot form the basis of an ineffective assistance of
counsel allegation. See Moore, 934 F. Supp. at 731. Therefore, I conclude that the
state court’s adjudication of Claim 2 was not contrary to, or an unreasonable
interpretation of, Strickland, or an unreasonable determination of facts.

2

The Supreme Court of Virginia’s opinion is an exhibit to Warwick’s petition at
ECF No. 1-2.
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In Claim 3, Warwick asserts that counsel was ineffective for failing to
interview the doctor who performed his spinal fusion surgery. Warwick argues
that, if counsel had interviewed the doctor, counsel would have known to subpoena
Warwick’s medical records. He contends that the records would have shown that
Warwick was physically unable to commit the charged offenses.
On habeas review, the Supreme Court of Virginia ruled that Warwick’s
claims did not satisfy either prong of Strickland because: (1) a nurse testified that
Warwick was “able to jump on top of a radiator, reach for an item in his closet, and
jump to the floor flat-footed,” (2) counsel, in a sworn affidavit, stated that
Warwick never mentioned “issues regarding loss of mobility,” (3) multiple
witnesses observed the altercation and testified that Warwick physically engaged
the responding officers, and (4) counsel pursued the alternative argument that
Warwick lacked the intent to commit assault and battery because of his painkiller
consumption. Warwick v. Clarke, No. 160219, slip op. at 3; De Bruin Aff. 2, ECF
No. 8-1. The court continued: “[Warwick] failed to demonstrate counsel’s choice
of defense strategy was unreasonable or that there was a reasonable probability of a
different result had counsel interviewed [Warwick’s treating physician] and
subpoenaed petitioner’s medical records.” Warwick v. Clarke, No. 160219, slip
op. at 3.

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I agree with the state court’s decision.

The Commonwealth submitted

overwhelming evidence of Warwick’s guilt and counsel reasonably pursued an
alternative defense strategy.

Therefore, Warwick has not demonstrated that

counsel’s performance was deficient or that, but for counsel’s actions, the outcome
of the trial would have been different. I conclude that the state court’s adjudication
was not contrary to, or an unreasonable interpretation of, Strickland, or an
unreasonable determination of the facts.
III. CONCLUSION.
For the stated reasons, I conclude that Warwick’s habeas petition is partially
procedurally barred and otherwise without merit.

Therefore, I will grant the

Motion to Dismiss and deny Warwick’s habeas petition.
A separate Final Order will be entered herewith.
DATED: October 16, 2017
/s/ James P. Jones
United States District Judge

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