Warden v. Clarke
Filing
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OPINION. Signed by Judge James P. Jones on 6/29/2018. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CHAD EVERETT WARDEN,
Petitioner,
v.
HAROLD CLARKE, DIRECTOR
OF DEPARTMENT OF
CORRECTIONS,
Respondent.
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Case No. 7:17CV00471
OPINION
By: James P. Jones
United States District Judge
Chad Everett Warden, Pro Se Petitioner; Elizabeth K. Fitzgerald, 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 Chad Everett Warden, a Virginia inmate, challenges the validity of
his confinement by a criminal judgment from state court. After review of the
record, I conclude that the respondent’s Motion to Dismiss must be granted,
because the petition is procedurally barred, incognizable, and otherwise without
merit.
I.
Background.
In 2013, the Circuit Court of Wythe County convicted Warden of malicious
wounding and misdemeanor damage to a telephone line.
For the malicious
wounding, the court sentenced Warden to fifteen years’ imprisonment, with ten
years suspended. For his misdemeanor conviction, the court sentenced Warden to
six months of incarceration to run concurrently with his other sentence. Warden’s
direct and state collateral review proceedings were unsuccessful.
On October 6, 2017, Warden filed the current petition in this court, raising
the following claims:
1.
The evidence was insufficient to sustain a malicious wounding
conviction because no evidence was presented showing the victim was actually
injured;
2.
Counsel was ineffective for failing to continue the case until a primary
defense witness could appear, file a motion to set aside, and call the impeachment
witnesses prior to the sentencing phase;
3.
The trial court abused its discretion and failed to comply with a
Virginia court rule;
4.
The delay and denial of Warden’s state habeas petition was prejudicial
and a denial of due process;
5.
The evidence was insufficient to sustain a malicious wounding
conviction because there was never any proof of injuries presented; and
6.
Counsel was ineffective for failing to adequately investigate the
victim.
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The respondent acknowledges that Warden’s petition is timely and
exhausted, but moves to dismiss the petition as procedurally barred, incognizable,
and otherwise without merit.
II.
Standards 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 ‘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)).
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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).
“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).
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.” 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. at 690).
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
outcome.” Id.
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III.
Procedural Default.
The 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)).
“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
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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).
Claims 1, 2, 4, and 5 are defaulted. Pursuant to Va. Sup. Ct. R. 5:17(c), the
Supreme Court of Virginia dismissed the claims on Warden’s habeas appeal for
failing to address the ruling of the court below. Warden v. Dep’t Corr., No.
170102, slip op. at 1 (Va. Sept. 7, 2017), ECF No. 8-7. The Fourth Circuit has
held that Rule 5:17(c) is an adequate and independent state law ground that
precludes federal habeas review. Hedrick v. True, 443 F.3d 342, 363 (4th Cir.
2006).
Warden argues that his claim is not procedurally barred because (1) the
Fourth Circuit has found that the Supreme Court of Virginia inconsistently applies
the procedural bar, and (2) Virginia habeas corpus law does not require compliance
with Rule 5:17(c). Pet’r’s Resp. 2, ECF No. 14. Neither argument is convincing.
First, Warden argues that the Supreme Court of Virginia did not properly
apply the present procedural default rule, citing Jones v. Sussex I State Prison, 591
F.3d 707 (4th Cir. 2010). In Jones, the Fourth Circuit declined to recognize
Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974), as a procedural bar to a double
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jeopardy claim, because Virginia courts had never previously applied Slayton to
bar such a claim. Therefore, Slayton was not adequate — it had not been regularly
and consistently applied to double jeopardy issues. Jones, 591 F.3d at 716. Jones
has no application here. Warden’s case does not involve Slayton, double jeopardy,
or an inconsistently applied rule. See, e.g., Manzella v. Clarke, No. 2:11CV575,
2012 WL 3265095, at *1, 6 (E.D. Va. May 22, 2012) (concluding sufficiency of
the evidence, ineffective assistance of counsel, and trial court error claims are all
properly barred by Rule 5:17(c)); Holden v. Clarke, No. 2:14CV616, 2016 WL
8261739, at *2, 4 (E.D. Va. Jan. 12, 2016) (due process claim properly barred by
Rule 5:17(c)).
Second, Warden’s claim that Virginia habeas law does not mandate
compliance with Rule 5:17(c) is incorrect. Rule 5:17(c) requires that a petition for
appeal include assignments of error and specifically notes:
An assignment of error that does not address the findings or rulings in
the trial court or other tribunal from which an appeal is taken, or
which merely states that the judgment or award is contrary to the law
and the evidence, is not sufficient. An assignment of error in an
appeal from the Court of Appeals to the Supreme Court which recites
that “the trial court erred” and specifies the errors in the trial court,
will be sufficient so long as the Court of Appeals ruled upon the
specific merits of the alleged trial error and the error assigned in this
Court is identical to that assigned in the Court of Appeals. If the
assignments of error are insufficient, the petition for appeal shall be
dismissed.
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Va. Sup. Ct. R. 5:17(c)(1)(iii). Warden appealed the circuit court’s denial of his
initial habeas petition to the Supreme Court of Virginia.
Therefore, he was
required to properly assign errors pursuant to Rule 5:17(c).
Warden has not presented any other arguments demonstrating cause and
prejudice or a fundamental miscarriage of justice. Accordingly, Claims 1, 2, 4, and
5 are procedurally barred from federal habeas review.
Lastly, Warden’s defaulted claims do not implicate Martinez v. Ryan, 566
U.S. 1 (2012). Under Martinez, a federal habeas petitioner may satisfy the cause
requirement of an otherwise procedurally defaulted claim of ineffective assistance
if:
(1) the ineffective-assistance-of-trial-counsel claim is a substantial
one; (2) the “cause” for default “consist[s] of there being no counsel
or only ineffective counsel during the state collateral review
proceeding”; (3) “the state collateral review proceeding was the initial
review proceeding in respect to the ineffective-assistance-of-trialcounsel claim”; and (4) state law “requires that an ineffectiveassistance-of-trial-counsel claim be raised in an initial-review
collateral proceeding.”
Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (quoting Trevino v. Thaler,
569 U.S. 413, 423 (2013)).
First, Claims 1, 4, and 5 do not allege ineffective assistance of counsel.
Second, even though Claim 2 does allege ineffective assistance of counsel,
Martinez only applies if the ineffective assistance of counsel (or no counsel)
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occurred in the initial review proceeding. 1 Here, the initial review proceeding was
in the state circuit court, but Warden’s mistake in failing to properly assign errors
pursuant to Va. Sup. Ct. R. 5:17(c) occurred on appeal to the Supreme Court of
Virginia.
Therefore, Martinez cannot constitute cause for any of Warden’s
defaulted claims, and I will grant the motion to dismiss as to Claims 1, 2, 4, and 5.
IV.
Incognizable Claims.
In Claims 3 and 4, Warden asserts that, during his state habeas proceeding,
the circuit court failed to comply with Va. Sup. Ct. R. 5A:3(e), controlling filing
deadlines, and the court and/or state court clerk’s office erred by failing to give
Warden a case number, delaying the disposition of the case for a year, and
allowing the local state prosecutor to write her own order to dismiss the case.
However, it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.
Federal habeas courts do not
intervene in matters of state law “unless it impugns the fundamental fairness of the
trial.” Stockton v. Virginia, 852 F.2d 740, 748 (4th Cir. 1988) (citing Grundler v.
North Carolina, 283 F.2d 798, 802 (4th Cir. 1960)).2 The Supreme Court has
1
Martinez “does not concern attorney errors in other kinds of proceedings,
including appeals from initial-review collateral proceedings, second or successive
collateral proceedings, and petitions for discretionary review in a State’s appellate
courts.” 566 U.S. at 16.
2
The “[Antiterrorism and Effective Death Penalty Act of 1996] requirements
reflect a ‘presumption that state courts know and follow the law.’” Woods v. Donald, 135
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‘“defined the category of infractions that violate “fundamental fairness” very
narrowly.’” Estelle v. McGuire, 502 U.S. 62, 73 (quoting Dowling v. United
States, 493 U.S. 342, 352 (1990)). “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process Clause has limited operation.” Id. A state court
error in interpreting state law does not give rise to a federal due process issue
unless it is “so gross, conspicuously prejudicial, or otherwise of such magnitude
that it fatally infects the trial.” McCafferty v. Leapley, 944 F.2d 445, 452 (8th Cir.
1991). 3
At the threshold, Warden’s alleged errors occurred during his state habeas
proceedings, not at trial. Further, Warden has not demonstrated that the alleged
errors fatally infected the state proceeding. He was not entitled to any particular
disposition deadline on collateral review, a minor clerical error regarding a case
number assignment does not violate federal law, and the state court agreeing with
S. Ct. 1372, 1376 (2015) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). Also,
“a determination of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1).
3
In Lisenba v. California, 314 U.S. 219, 236 (1941), the Supreme Court held that
“[D]enial of due process is the failure to observe that fundamental fairness essential to the
very concept of justice. In order to declare a denial of it . . . the acts complained of must
be of such quality as necessarily prevents a fair trial.” The Court gave examples: “when
a coerced confession is used as a means of obtaining a verdict of guilt,” “extort[ing]
testimony from a defendant by physical torture,” “[a] trial dominated by mob violence,”
“fraud, collusion, trickery and subornation of perjury” by the state, and “by threats or
promises . . . a defendant was induced to testify against himself.” Id. at 236-37.
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or adopting the arguments of a Commonwealth’s Attorney does not implicate any
federal rights. Lastly, he has not proffered clear and convincing evidence rebutting
the state court’s factual determinations. Therefore, Warden fails to demonstrate
that Claim 3 and 4 are cognizable under § 2254, and I will the motion to dismiss
the claims.
V.
Claim 6.
In Claim 6, Warden alleges that trial counsel failed to properly investigate
the case. Specifically, he argues that if counsel had investigated the victim, he
would have discovered that the victim faked her injuries and had previously been
convicted of drug distribution and perjury.
On habeas review, the state circuit court addressed the claim as follows:
[T]he petitioner asserts that trial counsel was ineffective because he
failed to obtain the petitioner’s medical records to demonstrate that
her injury was not real and in the alternative was not caused by the
petitioner. At trial, however, the victim testified under oath that she
had no injury to her knee prior to this event. (Tr. 19). The morning
after being beaten by the defendant, officers serving an unrelated
warrant called [] an ambulance for her, and at the emergency room
she was given crutches and a brace. (Tr. 18, 20-21). Her knee was so
swollen that police officers were unable to pull her pants leg over the
knee to view the injury. (Tr. 29). She further testified that she had
been to see a knee specialist [and] was expected to have surgery in the
future. (Tr. 18).
20. The Court finds that the petitioner has not proffered any
facts to refute this testimony nor has he demonstrated that additional
investigation would have uncovered any favorable evidence on this
point. “[A]n allegation of inadequate investigation does not warrant
habeas relief absent a proffer of what favorable evidence or testimony
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would have been produced.” Beaver [v. Thompson, 93 F.3d 1186,
1195 (4th Cir. 1996)]. See also Bassette [v. Thompson, 915 F.2d 932,
940-41 (4th Cir. 1990)] (petitioner must allege “what an adequate
investigation would have revealed[]”). Because the petitioner has
failed to proffer any information regarding what further investigation
would have uncovered, or how it would have been helpful to his
defense, the Court conclude[d] that Warden cannot meet his burden
under either prong of the Strickland test.
Warden v. Clarke, No. 15-264, slip op. at 11 (Va. Cir. Ct. Dec. 28, 2016), ECF No.
8-5. 4
The state habeas court also addressed counsel’s alleged failure to
demonstrate that the victim was a convicted felon and not credible, concluding that
“[i]n short, counsel did substantially present the evidence the defendant contends
should have been presented,” because “counsel did demonstrate that the victim was
a convicted felon and used this testimony to argue in closing that the victim was
not credible.” Id. at 8. Counsel elicited testimony that the victim had been
convicted of two felonies and even specifically asked whether the victim had been
convicted of a crime involving lying; the victim replied, “No.” Tr. 48, ECF No. 88. Further undermining his argument, Warden has not proffered any evidence that
the victim was actually convicted of perjury.
4
On habeas appeal, the Supreme Court of Virginia summarily denied Claim 6.
Therefore, the federal habeas court “should ‘look through’ the unexplained decision to
the last related state-court decision that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018) (reaffirming the essence of Ylst v. Nunnemaker, 501 U.S.
797 (1991)). The state circuit court’s decision is the last related state court decision
providing a relevant rationale.
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The trial transcript and sworn testimony contradicts Warden’s conclusory
claims, and his failure to proffer what an adequate investigation would have
revealed is fatal to his claim. See Beaver, 93 F.3d at 1195. Therefore, the state
court’s adjudication is not contrary to, or an unreasonable interpretation of, federal
law, or an unreasonable determination of facts, and I will grant the motion to
dismiss as to Claim 6.
VI.
Conclusion.
For the stated reasons, Warden’s habeas claims are procedurally barred,
incognizable, and otherwise without merit. Therefore, I will grant the Motion to
Dismiss and deny the petition.
A separate Final Order will be entered herewith.
DATED: June 29, 2018
/s/ James P. Jones
United States District Judge
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