Blanton v. Clarke
OPINION. Signed by Judge James P. Jones on 11/14/2017. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HAROLD CLARKE, DIRECTOR
OF DEPARTMENT OF
Case No. 7:17CV00112
By: James P. Jones
United States District Judge
Stephen Blanton, Pro Se Petitioner; Craig W. Stallard, Assistant Attorney
General, Richmond, Virginia, for the Respondent.
In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254,
the petitioner Stephen Blanton, a Virginia inmate, challenges the validity of his
confinement on a judgment from state court.
After review of the record, I
conclude that the respondent’s Motion to Dismiss must be granted, because
Blanton’s petition is partially procedurally barred and ultimately without merit.
In 2007 Blanton was convicted in the Circuit Court of Culpeper County of
the carnal knowledge, without force, of a child over the age of thirteen but under
the age of fifteen and sentenced to ten years imprisonment with eight years
suspended. On October 29, 2014, the same court revoked Blanton’s suspended
sentence after Blanton was convicted of possession of drugs in another state court.
The court revoked eight years of the suspended sentence and re-suspended six
years. Blanton did not appeal the revocation. On September 29, 2015, Blanton
filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. The
court denied the petition on January 30, 2017.
On March 8, 2017, Blanton filed the current petition in this court, alleging
the same three claims as in his state habeas proceeding, as follows:
1. The statute under which Blanton was originally convicted, Va.
Code Ann. § 18.2-63(A), violates the United States Constitution
and therefore the original judgment was void and the trial court
lacked subject matter jurisdiction to revoke the suspended
2. Blanton’s counsel was ineffective for failing to raise the issue of
the court’s jurisdiction to enter the revocation order under the Sixth
3. Counsel was also ineffective for failing to raise the issue of the
court’s jurisdiction to enter the revocation order under the
The respondent moves to dismiss Blanton’s petition as procedurally barred
and without merit.
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) [R]esulted 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;
(2) [R]esulted 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, 4 (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, 687 (1984).
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 AEDPA,
the court’s review is doubly deferential. See Harrington, 562 U.S. at 105.
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. “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.
For the second prong, a petitioner must demonstrate that 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
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).
The Supreme Court of Virginia denied Claim 1 as procedurally barred
because Blanton could have raised the claim at trial or on direct appeal, but failed
to do so, relying on Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). Slayton is an
adequate and independent state law procedural ground that precludes federal
habeas review from considering the merits of ‘“non-jurisdictional issue[s] [that]
could have been raised during the direct appeal process.”’ Prieto v. Zook, 791 F.3d
465, 468-69 (4th Cir. 2015) (quoting Prieto v. Warden, 748 S.E.2d 94, 105 (Va.
Blanton argues that his claim is not procedurally barred because (1) his
claim is jurisdictional, and (2) the procedural default is “not independent of the
federal question presented.” Pet’r’s Resp. 3, ECF No. 17. However, Blanton has
not proffered any support that the underlying judgment is void, or that his claim is
otherwise jurisdictional. Compare Herrington v. Clarke, 2017 WL 3531418, at *2
(4th Cir. Aug. 17, 2017) (holding that a criminal defendant’s claim that he did not
properly waive his Sixth Amendment right to an attorney is a jurisdictional bar to a
valid conviction and cannot be barred by Slayton) with Lenz v. True, 370 F. Supp.
2d 446, 493 (W.D. Va. 2005) (holding that a petitioner’s claim that the death
penalty statute is unconstitutional can be barred by Slayton). Moreover, Blanton
fails to demonstrate that the court’s application of Slayton was not independent of
the federal question because the statute does not violate state or federal law. See
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
“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 v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)). 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
demonstrate a colorable claim of actual innocence. See Schlup v. Delo, 513 U.S.
298, 324-25 (1995).
Blanton has not shown that he was unable to comply with the state
procedural rule or has a colorable claim of actual innocence.
Claim 1 is
procedurally barred under Slayton.
Regardless of any procedural default, Claim 1 is also without merit.
A void judgment is always subject to collateral attack, and is “one that is
rendered by a court lacking jurisdiction over the defendant or over the subject
matter, or in violation of a procedural requirement so substantial that it is deemed
by the rendering state to be void, i.e., to be ‘jurisdictional.’” Yale v. Nat’l Indem.
Co., 602 F.2d 642, 644 (4th Cir. 1979).
On habeas review, the Supreme Court of Virginia dismissed Blanton’s
contention that his conviction was void. “Petitioner does not allege any court has
found the statute under which he was convicted, [Va.] Code § 18.2-63,
unconstitutional. Thus, petitioner has failed to establish his conviction is void and
thus he is barred from raising his constitutional claims for the first time on
collateral review.” Blanton v. Clarke, No. 151485, slip op. at 1-2 (Va. Jan. 30,
2017), ECF No. 14.
I agree. At the threshold, Virginia has never directly addressed the
constitutionality of section 18.2-63(A). However, the Supreme Court of the United
States has held that an adult does not have a fundamental right to have a
consensual sexual relationship with a minor, and, contrary to Blanton’s repeated
assertions, statutes barring such conduct have never been subject to a strict scrutiny
analysis. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“The present
case does not involve minors.”); Id. at 586 (Scalia, J. dissenting) (noting that the
majority did not apply strict scrutiny for the right to engage in adult consensual
sodomy); MacDonald v. Moose, 710 F.3d 154, 164 (4th Cir. 2013) (holding that a
blanket sodomy ban is unconstitutional, but “a state could, consistently with the
Constitution, criminalize sodomy between an adult and a minor”); Toghill v.
Commonwealth, 768 S.E.2d 674, 679 (Va. 2015) (“Lawrence simply does not
afford adults with the constitutional right to engage in sodomy with minors.”).
Therefore, the state court’s adjudication was not contrary to, or an
unreasonable interpretation of, federal law, or an unreasonable determination of the
facts. Blanton’s contention that section 18.2-63(A) is unconstitutional is without
Lastly, Claims 2 and 3 assert that counsel was ineffective at the revocation
hearing for failing to raise the jurisdictional argument of Claim 1. On habeas
review, the Supreme Court of Virginia held:
Assuming without deciding that petitioner has demonstrated he
had a right to counsel at his probation revocation hearing, the Court
holds that claims (2) and (3) satisfy neither the “performance” nor the
“prejudice” prong of the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668, 687 (1984). . . . [P]etitioner was barred
from raising his constitutional claims for the first time in his
revocation proceeding. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel’s alleged errors, the result of the
proceeding would have been different.
Blanton, supra, ECF No. 14 (citations omitted). I agree with the state court’s
Any motion that counsel could have brought to dispute the court’s subject
matter jurisdiction would have been frivolous because Virginia does not allow any
attack on the underlying conviction in revocation proceedings. Va. Code Ann. §
19.2-306 (providing that in a revocation hearing, the court decides whether a
defendant’s separate activities violated the requirements of his previously
suspended sentence and cannot allow relitigation of the defendant’s original
The state court’s decision was not contrary to, or an unreasonable
interpretation of, Strickland, or an unreasonable determination of facts.
For the stated reasons, Blanton’s habeas claims are procedurally barred and
otherwise without merit. Therefore, I will grant the Motion to Dismiss and deny
Blanton’s habeas petition.
A separate Final Order will be entered herewith.
DATED: November 14, 2017
/s/ James P. Jones
United States District Judge
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