Martinez v. Clarke

Filing 20

OPINION. Signed by Judge James P. Jones on 4/13/2018. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DAVID MARTINEZ,

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Petitioner,
v.
HAROLD CLARKE, DIRECTOR
OF DEPARTMENT OF
CORRECTIONS,
Respondent.

Case No. 7:17CV00377
OPINION
By: James P. Jones
United States District Judge

David Martinez, Pro Se Petitioner; Christopher P. Schandevel, 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 David Martinez, 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
Martinez’s petition is procedurally barred.
I.
In 2013 Martinez was convicted in the Circuit Court of Alleghany County of
second-degree murder and received an active sentence of twenty-five years.
Martinez filed an appeal, which the Court of Appeals of Virginia denied. Martinez
appealed again, but the Supreme Court of Virginia dismissed his petition for failing

to address the Court of Appeals of Virginia’s ruling pursuant to Va. Sup. Ct. R.
5:17(c)(iii). After that, Martinez filed a habeas petition in the circuit court. The
court granted relief on one of Martinez’s claims, granting Martinez the right to
seek a delayed direct appeal. That appeal remains pending before the Supreme
Court of Virginia. Martinez appealed the circuit court’s denial of his remaining
habeas claims. The Supreme Court of Virginia dismissed that appeal.
On August 11, 2017, Martinez filed his petition in this court, alleging that
his trial counsel had been ineffective for failing to (1) timely file a motion to
suppress the evidence seven days before trial; (2) object to the admissibility of a
certain prosecution exhibit at trial on the ground that it was not properly disclosed
to the defense before trial; and (3) properly perfect his appeal when he failed to
include a proper assignment of error. The respondent moves to dismiss Martinez’s
petition as procedurally barred.
II.
“A habeas petitioner is barred from seeking federal review of a claim that
was presented to a state court and ‘clearly and expressly’ denied on the
independent, adequate state ground of procedural default.” Bennett v. Angelone,
92 F.3d 1336, 1343 (4th Cir. 1996) (quoting Harris v. Reed, 489 U.S. 255, 263
(1989)). 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

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constitutional ruling.’” Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999)
(quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
In Martinez’ state habeas appeal, the Supreme Court of Virginia denied
Claims 1 and 2 pursuant to Virginia Supreme Court Rule 5:9(a), for failing to
adequately identify the case to be appealed. Rule 5:9(a) is an independent and
adequate state procedural rule constituting procedural default. Wise v. Williams,
982 F.2d 142, 144 (4th Cir. 1992). Therefore, Claims 1 and 2 are procedurally
barred from federal review.
Additionally, “a federal court may not grant a writ of habeas corpus to a
petitioner in state custody unless the petitioner has first exhausted his state
remedies by presenting his claims to the highest state court.” Baker v. Corcoran,
220 F.3d 276, 288 (4th Cir. 2000) (citing 28 U.S.C. § 2254(b)(1); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999)). To meet the exhaustion requirement, a
petitioner “must have presented to the state court both the operative facts and the
controlling legal principles.” Kasi v. Angelone, 300 F.3d 487, 501-02 (4th Cir.
2002) (internal quotation marks and citation omitted). “A claim that has not been
presented to the highest state court nevertheless may be treated as exhausted if it is
clear that the claim would be procedurally barred under state law if the petitioner
attempted to present it to the state court.” Baker, 220 F.3d at 288 (citing Gray v.
Netherland, 518 U.S. 152, 161 (1996)).

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Claim 3 is exhausted but defaulted. Martinez brought Claim 3 in his circuit
court habeas petition, but failed to raise the claim in his appeal to the Supreme
Court of Virginia. Therefore, Claim 3 was not properly presented to the highest
state court, and the claim is exhausted but defaulted under Baker. Martinez cannot
return to state court because any additional state habeas proceeding would be
successive. See Va. Code Ann. § 8.01-654(B)(2) (A habeas petition “shall certify
that the petitioner has filed no prior habeas corpus petitions attacking the
conviction or probation revocation.”). Thus, all claims are procedurally barred
from federal review.
“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 some “objective
factor,” 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

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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). Martinez has not shown that he was unable to comply with
the state procedural rule or a colorable claim of actual innocence. Accordingly, I
will grant the motion to dismiss as to all claims.
IV.
For the stated reasons, Martinez’s habeas claims are procedurally barred.
Therefore, I will grant the Motion to Dismiss and deny Martinez’s habeas petition.
A separate Final Order will be entered herewith.
DATED: April 13, 2018
/s/ James P. Jones
United States District Judge

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