Givens v. Clarke
Filing
20
MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 1/30/2019. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ROGER JAMES GIVENS,
Petitioner,
)
)
)
)
)
)
)
v.
HAROLD CLARKE,
Respondent.
CASE NO. 7:17CV00553
MEMORANDUM OPINION
By: Norman K. Moon
Senior United States District Judge
Roger James Givens, 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 Campbell County Circuit Court (dkt. 1). Respondent filed a motion to dismiss
Givens’ § 2254 petition (dkt. 10), and Givens responded (dkt. 15), making the matter ripe for
disposition. After review of the record, I will grant the motion to dismiss.
I.
BACKGROUND
On December 27, 2013, the Campbell County Circuit Court entered a final order convicting
Givens, pursuant to an Alford plea, of object sexual penetration.1 In exchange for Givens’ plea, a
count of custodial indecent liberties and a count of object sexual penetration as a second violent
felony sex assault were nolle prossed. The court sentenced Givens to forty years’ imprisonment
on the count to which he pled, with fifteen years suspended. Givens’ direct and collateral appeals
were unsuccessful. (See dkt. 17-1 through 17-4.)
At Givens’ plea hearing, the Commonwealth proffered that the evidence at trial would have
demonstrated that:
North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is “an arrangement in which
a defendant maintains his innocence but pleads guilty for reasons of self-interest.” United States
v. Taylor, 659 F.3d 339, 347 (4th Cir. 2011).
1
[B]etween the dates of January 1, 2012, and March 29, 2012 . . . [the victim] was
seventeen years of age. . . . [S]he had known Mr. Givens as a—actually told at one
point in her life that it was her father, but by the time this incident took place [she]
knew [he] was not her father, but it was—he was to pick her up, take her to Roanoke
for some quality time together.
So he picked her up in the car . . . [and he] looked over at her, actually
looked over at her genital area, at her vagina she would testify, and said I’ve been
thinking about that.
And as they traveled up [Route] 29 in the county, he reached over and began
to massage the outside of her vagina on top of her clothes. And while still on 29 in
Campbell County up the road, [he] put his hand inside of her pants [] and inserted
his fingers inside of her vagina. . . .
[T]he court has heard some argument on the intimidation earlier, and we’d
ask that we incorporate that argument to facilitate this guilty plea for purposes of
the law of intimidation.
She would testify that she began knowing [Givens] back when she was in
junior high, some times a little before. At the end of junior high, she testified that
she was in the car with her mother and Mr. Givens, that Mr. Givens did not like the
way she did not talk to him.
So they went to the house in Vinton. He owned a house in Vinton and that
was before she got into high school, Your Honor. He then took down a sigma
paddle from the home and began to beat her over twenty to thirty times with a
wooden paddle for her behavior inexplicably. So a severe beating took place before
high school. Then she would testify from her perspective inexplic[ably], because
she had no ties to Campbell County, she was moved with her mother to a home
here in Campbell County to go to Brookville school where she knew no one.
During the course of those years in high school, Judge, the following things,
she would testify, began happening to her. She was on her—around fourteen years
of age, her freshman year, brought back to that house in Vinton where she was
told—Mr. Givens was in a chair, she was by herself, Mom was not with her that
weekend, to strip—take all of her clothes off. She was confused. She went into
one room, Judge, came back in her underwear.
That wasn’t good enough for [Givens]. He said I want to see you
completely naked. She was completely confused, very scared at this point. She
was fourteen when it began.
He then went inside and inserted his fingers inside of her in the bedroom.
She was shaking, she recalls, her leg was shaking. He commented to her, why is
2
your leg shaking. He said, get dressed and go into the room. She went into the
other bedroom.
Later that night, he returned to the bedroom and committed an act of—she
would say, Judge, his finger went inside of her again, his thumb. Then he said, I
won’t put, her phrase was, my dick inside of you.
Guilty Plea Hr’g Tr. at 11-15 (Dec. 17, 2015).
At this point in the hearing, the Commonwealth asked if the defense would stipulate to the
element of intimidation. Defense counsel refused, but conceded that the Commonwealth had
established that Givens had beaten the victim and that a single beating could satisfy intimidation.
Id. at 15-16. The Commonwealth continued the proffer:
[S]he would testify that over a period of four years she was repeatedly forced to
have sex. She protested on a couple of occasions. She had been punched in the
chest on multiple occasions. That was actually—and slapped in the face. She was
told by the defendant that you have to have sex with me or else I’ll be out having
to get it on the street.
There was a history that . . . can be physical intimidation or a relationship
between the parties that existed over four years, or towards the end she would testify
and her quote was, at the end, by the time this incident happened, the trial, she felt
as that was what she existed for, was to simply satisfy his sexual needs, and that
she said there was no use protesting, it was just going to happen, she had done it
before. And she was afraid of him physically, of his size.
Judge, as well, . . . we would introduce the SANE2 nurse saying there [were]
injuries to the victim in this case in the form of scarring in the inside of her vagina.
We would also introduce the prior convictions, Judge, that she—he had that
you heard about.3
Id. at 17-18. The court accepted the Alford plea, concluding that “a strong factual basis” supported
the charge and that Givens entered the plea freely and voluntarily. Id. at 25, 33. Givens’ direct
appeal and subsequent state court habeas petition proved unsuccessful.
2
3
Sexual assault nurse examiner.
Givens was previously convicted of a violent sexual assault.
3
II.
PETITIONER’S CLAIMS
On December 14, 2017, Givens filed the present petition, alleging the following grounds:
1. Counsel was ineffective for failing to inform Givens of the nature and direct consequences
of an Alford plea;
2. Counsel was ineffective for failing to prepare for trial or interview and prepare witnesses;
3. Counsel was ineffective for coercing Givens into taking an Alford plea on the night before
the trial was scheduled; and
4. Givens was denied due process when, after viewing the proffered evidence in the light most
favorable to the Commonwealth, no rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
(Dkt. 1.) Respondent acknowledges that Givens’ petition is both exhausted and timely, and I
conclude that no claims are procedurally barred from federal habeas review.4 After reviewing the
parties’ submissions, I find no need for an evidentiary hearing. See Rule 8(a), Rules Governing
Section 2254 Cases in the United States District Courts; see also 28 U.S.C. § 2254(e).
III.
STANDARDS OF REVIEW
To obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 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, a federal court may not grant a writ of habeas corpus based on any claim that a state
court decided on the merits unless that adjudication:
4
The respondent argues that Anderson v. Warden of Powhatan Corr. Ctr., 281 S.E.2d 885
(Va. 1981), constitutes an independent and adequate state ground for procedural default; however,
the Western District of Virginia has (so far) declined to treat Anderson as such. Mangum v. Clarke,
No. 7:11-cv-00205, 2011 WL 4737418, at *1 (W.D. Va. Oct. 6, 2011) (reviewing claim de novo).
4
(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;
or
(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, 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, 686-87
(1984). “Judicial scrutiny of counsel’s performance must be highly deferential,” and counsel is
“permitted to set priorities, determine trial strategy, and press those claims with the greatest
chances of success.” Id. at 689; United States v. Mason, 774 F.3d 824, 828 (4th Cir. 2014).5 When
reviewing a Strickland claim under AEDPA, the court’s review is “doubly” deferential. See
Richter, 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 687-88.
“The question is whether an attorney’s
“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight.” Gentry, 540 U.S. at 8.
5
5
representation amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Richter, 562 U.S. at 105 (quoting
Strickland, 466 U.S. at 690). For the second prong, a petitioner must show that, but for counsel’s
alleged unprofessional error, there is a “reasonable probability that . . . the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine the confidence of the outcome.” Id. For a petitioner that pleaded guilty,
even if he establishes counsel’s performance was deficient, relief is still unavailable unless “there
is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Furthermore, the Fourth Circuit has generally instructed district courts to dismiss habeas
petitions that contradict the plea colloquy. See United States v. Lemaster, 403 F.3d 216, 221-22
(4th Cir. 2005) (“[I]n the absence of extraordinary circumstances, the truth of sworn statements
made during a Rule 11 colloquy is conclusively established, and a district court should, without
holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations
that contradict the sworn statements.”); Fields v. Att’y Gen. of State of Md., 956 F.2d 1290, 1299
(4th Cir. 1992) (28 U.S.C. § 2254 petition for writ of habeas corpus) (“Absent clear and convincing
evidence to the contrary, a defendant is bound by the representations he makes under oath during
a plea colloquy.”).
IV.
A.
ANALYSIS
Claim 1
In Claim 1, Givens asserts that counsel failed to inform him of the consequences of his
Alford plea. Specifically, Givens alleges that counsel failed to advise him that his Alford plea
precluded any direct appeal, including the ability to challenge the sufficiency of the evidence.
6
Givens argues the following: (a) he did not give up his right to appeal his conviction in either the
written plea agreement or his plea colloquy; (b) his plea was not a “traditional” Alford plea because
defense counsel refused to stipulate to intimidation and engaged in a spirited debate regarding the
Commonwealth’s proffer; (c) the twenty-five year sentence was essentially a life sentence; and (d)
he was “not quite himself at the plea hearing.” Pet. at 10, Dkt. 1.
On habeas review, the state circuit court rejected Claim 1 pursuant to Anderson v. Warden
of Powhatan Corr. Ctr., 281 S.E.2d 885 (Va. 1981), which holds that a defendant’s representations
at the plea colloquy regarding the validity of his plea and effectiveness of his attorney are generally
binding on collateral review. Specifically, the court determined:
[D]uring his guilty plea, Petitioner told [the court] that he understood that his plea
would give up his rights to a jury trial, to remain silent, to confront and crossexamine witnesses, and to appeal his sentence. He further told the Court he had
read and understood the plea agreement and had sufficient time to discuss both the
agreement and the Alford plea with his counsel. He also stood silently as his
attorney agreed that there was sufficient evidence of the charge, including his
intimidation of [the victim]. Petitioner conceded within his Petition itself that “the
court asked if Petitioner understood that by taking his plea, he may be giving up his
right to appeal the sentence.” He also signed a plea agreement that correctly
described his plea as an agreement “to plead guilty (Alford plea)” and stood silently
as his lawyer accurately referenced his plea as both an Alford plea and a guilty plea.
Petitioner is bound by his prior statements unless he offers a reason to controvert
them.
Petitioner attempted to controvert his statements at plea by claiming that his
Alford plea was not a “standard” Alford plea because his attorney proffered that she
would have, at trial, offered witnesses to dispute the intimidation element. The
Court finds that his attorney’s advocacy did not undercut her concessions—made
as he stood in silent agreement beside her—that “there was sufficient evidence to
convict him” and that Petitioner was pleading guilty under the belief that “based on
the evidence that the court is allowing in, that the court has ruled on thus far, that
he will be convicted.” Nor was his bare assertion that he did not understand his
plea, made without any support in the contemporaneous record or proffered
evidence, sufficient to controvert his prior statements. The Court finds that
Petitioner was not inexperienced in life or the criminal justice system. He was a
47-year-old doctoral candidate with at least one prior conviction for a violent sexual
assault. He proffered no evidence to controvert the Court’s finding that he
7
understood the consequences of his plea, including that he was foreclosed the right
to appeal sufficiency.
The Court further finds that . . . Petitioner’s claim is barred because he did
not establish prejudice. Petitioner explicitly chose to enter his plea because he did
not want to be exposed to a mandatory life sentence under [Va.] Code § 18.2-67.5:3.
Subjectively, Givens wanted the security of his guilty plea. Objectively, no
reasonable defendant in his position would have turned down a plea to twenty-five
years’ imprisonment, as opposed to two life sentences he faced, when his only
defenses were (i) a fourteen-year-old who had believed him to be her father and
whom he physically abused “voluntarily” had a multi-year sexual relationship with
him and (ii) it was actually her mother’s fault because she “facilitated” the
relationship. Because there is no evidence of a reasonable likelihood that Petitioner
would have rejected the plea agreement, he did not establish prejudice.
Givens v. Clarke, No. CL16-1071-00, slip op. at 7-9 (Campbell Cnty. Cir. Ct. Oct. 11, 2016)
(internal citations and footnote removed), Dkt. 17-4.6 The circuit court also noted that Givens’
proffered attacks on the victim’s credibility, “that she did not sufficiently resist, did not sufficiently
complain to him or others, and did not sufficiently avoid all contact with him—would not have
presented a compelling defense to a factfinder, particularly given [Givens’] position as a preacher
and father figure to the victim.” Id. at 9 n.1.
I agree with the state circuit court’s analysis. Although Anderson is not directly applicable
in federal court, similar rules apply. See Lemaster, 403 F.3d at 221-22; Fields, 956 F.2d at 1299.
To collaterally attack a guilty plea, a petitioner must establish either that (1) counsel’s performance
was deficient and that, but for counsel’s alleged errors, he would not have pleaded guilty; or (2)
the plea itself was not voluntary or intelligent. United States v. Broce, 488 U.S. 563, 574 (1989).
Givens fails to establish either.
The Supreme Court of Virginia summarily denied Givens’ claims in his state habeas
appeal. Therefore, I “look through” to the Campbell County Circuit Court’s habeas decision.
Wilson v. Sellers, --- U.S. ---, ---, 138 S. Ct. 1188, 1192 (2018) (under AEDPA the “federal court
should ‘look through’ the unexplained decision [of a higher state court] to the last related statecourt decision that does provide a relevant rationale . . . [and] presume that the unexplained
decision adopted the same reasoning”).
6
8
For arguments (a) through (c), even if counsel’s performance was deficient, Givens has not
demonstrated prejudice. First, Givens’ potential defenses are not compelling. He asserts that he
was a respected community leader, the relationship was consensual, the victim lied, and the
victim’s mother facilitated the relationship. The record establishes that Givens was well aware of
these arguments when he pleaded guilty—they are identical to the hypothetical defenses that
counsel proffered at his guilty plea hearing. Givens entered the Alford plea and sat in silence while
counsel raised these defenses but ultimately admitted that, given the trial court’s evidentiary
rulings and the potential life sentences, she had advised Givens that “it would be in his best interest
to subject himself to the Alford plea.” Guilty Plea Hr’g Tr. 24. Second, the trial court nolle prossed
other charges in exchange for Givens’ plea. If he had rejected the plea, Givens would have faced
multiple charges with a potential punishment of multiple life sentences. The additional charges
were nolle prossed in exchange for his Alford plea. Therefore, Givens fails to demonstrate that,
but for counsel’s alleged errors, there is a reasonable likelihood that he would not have pleaded
guilty and he would have proceeded to trial. See Broce, 488 U.S. at 574.
Separately, as to arguments (b) and (c), Givens fails to establish deficient performance. In
argument (b), Givens avers that his plea was not a “traditional” Alford plea, because counsel
refused to stipulate to intimidation and counter-proffered impeachment of the victim’s account of
events. Givens also alleges that he was confused by counsel’s actions and that significant evidence
undermined the credibility of the victim. However, counsel’s arguments did not undermine the
validity of the plea or elevate it beyond an admission of guilt, because Alford pleas are essentially
equivalent to traditional guilty pleas. See Price v. Johnson, 218 F. App’x 274, 275 (4th Cir. 2011)
(conviction based on an Alford plea did not alter petitioner’s substantial rights compared to a
traditional guilty plea); Perry v. Commonwealth, 533 S.E.2d 651, 652-53 (Va. App. 2000) (Alford
9
plea treated same as a guilty plea). The distinguishing feature of an Alford plea is that the
defendant does not confirm the factual basis underlying his plea. United States v. King, 673 F.3d
274, 281 (4th Cir. 2012).
Givens’ assertion that his sentence was essentially a life sentence (argument (c)) is
unconvincing. Givens was forty-seven at the time of his conviction, and the court sentenced him
to twenty-five years’ imprisonment. Therefore, he has a real opportunity to leave prison alive at
seventy-two years old. See United States v. Johnson, 685 F.3d 660, 663 (8th Cir. 2012) (78-month
sentence for seventy-year defendant old not a de facto life sentence).
For argument (d), that he was “not quite himself at the plea hearing,” Givens does not
appear to raise an ineffective assistance of counsel claim. Instead, he challenged his plea as
involuntary, because he asserts that he failed to understand the plea agreement on account of being
“outside of himself” at the hearing after “spending a year in jail and being accused of such a
heinous crime.” Pet. at 11.
“The test for determining competency is whether [a defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding . . . and whether he
has a rational as well as a factual understanding of the proceedings against him.” United States v.
General, 278 F.3d 389, 395-96 (4th Cir. 2002) (internal citations omitted). General anxiety, stress,
and time pressure do not invalidate guilty pleas. See, e.g., Miles v. Dorsey, 61 F.3d 1459, 147071 (10th Cir. 1995) (“Although deadlines, mental anguish, depression, and stress are inevitable
hallmarks of pretrial plea discussions, such factors considered individually or in aggregate do not
establish that Petitioner's plea was involuntary.”); United States v. Pellerito, 878 F.2d 1535, 1541
(1st Cir. 1989) (holding that “[c]riminal prosecutions are stressful experiences for nearly all
concerned,” and the petitioner’s “agitated emotional state” did not invalidate his guilty plea).
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Givens argues that his statements during the plea colloquy demonstrated that his plea was
involuntary: he incorrectly told the court that he was forty-eight years old when he was actually
forty-seven, and he initially asserted that he only understood the plea agreement “[f]or the most
part.” Guilty Plea Hr’g 5, 9. However, Givens has not alleged that his incorrect statement resulted
from anything but general anxiety and stress. See Miles, 61 F.3d at 1470-71. Moreover, after
Givens’ stated “[f]or the most part,” the court requested clarification on whether he understood.
Givens replied “Yes, absolutely.” Guilty Plea Hr’g 9. Givens further confirmed both his
understanding of the plea agreement and his voluntariness to enter it. He informed the court he
was not under the influence of drugs, medication, or alcohol; he had not been threatened; he had
no physical impairment preventing his understanding of the agreement; he understood all of the
court’s questions; and he was satisfied with the performance of counsel. Id. at 9-10. Therefore,
he fails to establish that his plea was involuntary.
Accordingly, the state court’s application of Anderson was not contrary to, or an
unreasonable interpretation of, federal law, or an unreasonable determination of the facts, and I
will grant the motion to dismiss as to Claim 1.7
B.
Claim 2
In Claim 2, Givens asserts that counsel was ineffective for: (a) failing to interview and
prepare witnesses for trial; (b) failing to prepare an affirmative defense regarding intimidation, (c)
failing to record a phone hearing that “contributed” to the denial of a motion for speedy trial and
a motion to dismiss the enhanced indictment; and (d) failing to request a hearing on the victim’s
sexual history. Givens also appears to allege two new claims: counsel was ineffective for (e) rarely
7
To the extent that the state court did not directly address the underlying merits of any part
of Claim 1, Givens still fails to establish that the state court’s application of Anderson was contrary
to, or an unreasonable application of, federal law, or an unreasonable determination of the facts.
11
visiting or communicating with Givens, and (f) being investigated by the Virginia State Bar related
to other cases.
At the threshold, Givens fails to satisfy the requirements of Lemaster or establish prejudice.
On habeas review, the circuit court held:
Nor did Petitioner establish prejudice [] on [Claim 2]. Although he claimed in his
Petition that counsel’s failures “coerced” him into pleading guilty, during his plea
colloquy Petitioner told this Court that he decided himself to plead guilty; was
doing so freely and voluntarily, without being forced or threatened; and was
“absolutely” satisfied with counsel. As he offered no valid reason to controvert
these statements, the Court finds that he is bound by them, and they conclusively
establish that he was not coerced.
Givens v. Clarke, No. CL16-1071-00, slip op. at 12-13 (citations removed). I agree with the state
circuit court’s analysis. Givens has not presented a valid reason why he should not be bound by
his statements at the plea colloquy; therefore, the state court’s determination that review of Claim
2 was barred by Anderson was not unreasonable. Nevertheless, I will review the merits of his
claims.
On habeas review, the state circuit court rejected Claim 2 arguments (a) and (b):
To the extent that Petitioner claimed counsel failed to prepare him or other
witnesses for trial, the Court finds that these claims ignore Petitioner’s knowing
and voluntary decision to enter an Alford plea. Although the United States Supreme
Court has recognized that a complete failure by defense counsel to put the
government’s case to sufficient adversarial testing at trial constitutes presumed
prejudice, see United States v. Cronic, 466 U.S. 648, 659 (1984), the scope of the
presumption is limited. See Bell v. Cone, 533 [sic – 535] U.S. 685 (2002), Sheikh
v. Buckingham Corr. C[tr.], 264 Va. 558, 570, 570 S.E.2d 785 (2002). A voluntary
plea of no contest waives several important constitutional rights, such as the right
to trial, the right against self-incrimination, and the right to confront one’s accusers,
each of which are hallmarks of the adversarial system.
See Terry v.
Commonwealth, 30 Va. App. 192, 197, 516 S.E.2d 233, 235-36 (1999) (discussing
guilty plea); see also Jackson, 255 Va. at 555, 499 S.E.2d at 276 (nolo contendere
plea is a functional equivalent to guilty plea). Further, as the United States Supreme
Court has noted, “the defendant who pleads guilty puts nothing in dispute regarding
the essentials of the offense[,] rather, the defendant takes those matters out of
dispute . . . .” Mitchell v. United States, 526 U.S. 314, 322-23 (1999). Upon entry
of a plea, and concomitant waiver of constitutional rights, no adversarial
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relationship exists as to the issues of guilt between the accused and the
Commonwealth. Thus, Petitioner’s counsel no longer had an opportunity, much
less an obligation, to prepare for trial or to subject the indictments to adversarial
testing.
Givens v. Clarke, No. CL16-1071-00, slip op. at 10. I agree with the state circuit court’s analysis.
Givens’ knowing and voluntary guilty plea waived all nonjurisdictional defects in the proceedings,
including claims of ineffective assistance that do not relate to the voluntariness of the plea. Tollett
v. Henderson, 411 U.S. 258, 267 (1973); United States v. Stiger, 20 F. App’x 307, 308-09 (6th Cir.
2001); United States v. Lynch, 991 F.2d 792 (Table), 1993 WL 128525, at *1 n. (4th Cir. 1993)
(noting a valid guilty plea waives all nonjurisdictional defects based on Tollett and United States
v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992)).
Despite Givens waiving these ineffective assistance claims under Tollett, the state court
reviewed the merits of Claim 2 arguments (a) and (b):
Furthermore, the Court finds that Petitioner failed to proffer what exculpatory
testimony he could have personally offered. This portion of his claim therefore
fails. See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (no habeas relief
for inadequate investigation without a proffer of what favorable evidence or
testimony would have been produced); Anderson v. Collins, 18 F.3d 1208, 1221
(5th Cir. 1994) (without specific affirmative showing of what missing evidence
would have been, habeas court cannot even begin to apply Strickland).
The Court further finds that Petitioner’s claims that counsel failed to prepare
other witnesses is belied by the fact that counsel proffered, during his plea colloquy,
that she had witnesses available to testify regarding Petitioner’s relationship with
his victim[]. The affidavits of Givens’ friends and relatives, attached to his petition,
offered no details that counsel did not provide to the Court on the date of plea.
Accordingly, his claims that counsel performed deficiently by failing to prepare his
defense are belied by the record. Moreover, Petitioner chose to plead guilty
knowing that his witnesses were on the way to Virginia to testify on his behalf and
believed that they were prepared. He proffered nothing more counsel could have
done—other than learn his defense and arrange for witnesses on his behalf, which
she did—that would have altered his decision to plead guilty.
Givens v. Clarke, No. CL16-1071-00, slip op. at 10-11. I agree with the state circuit court’s
analysis. Although it is generally difficult to definitively determine if counsel’s preparation of
13
defenses and witnesses for trial was constitutionally deficient when a defendant pleads guilty and
waives his right to a trial, counsel’s extensive counter-proffer at Givens’ guilty plea hearing and
her explanation of her potential trial strategy clearly demonstrates that counsel had prepared valid
defenses and witnesses.
First, to the extent that Givens alleges that counsel failed to prepare him as a witness, his
claim fails because he has not proffered what his personal testimony would have been. See Beaver,
93 F.3d at 1195; Nickerson v. Lee, 971 F.2d 1125, 1135 (4th Cir. 1992) (habeas petitioner must
present evidence supporting his claims or point to evidence in the record), abrogated on other
grounds by Gray v. Netherland, 518 U.S. 152, 165-66 (1996).
Second, Givens has not established that counsel failed to prepare defenses and other
witnesses. Counsel refused to stipulate as to intimidation, introduced the defense of a prior sexual
relationship, and informed the court, at length, of her probable trial strategy. See Plea Hr’g Tr. 2024. After hearing her argument, the court asked counsel whether she believed it was in Givens’
best interests to enter the Alford plea. Counsel replied:
I have actually spent a great deal of time discussing just that language with him,
whether I thought it was in his best interest.
And quite frankly, Your Honor, this is—I’m not suggesting this at all to
suggest anything inappropriate with the court, but I have advised him very
specifically that in light of how the court has ruled on the motions and the type of
evidence that the court has determined will come in and over my objection and
over, you know, those types of issues, that it would be best to subject himself to the
Alford plea . . . .
***
[We] believe that based on the evidence that the court is allowing in, that the court
has ruled on thus far, that he will be convicted and the jury will have no ch[oice]
but to sentence him to life in prison.
Id. at 24-25. Considering counsel’s extensive counter-proffer and her demonstrated understanding
of Givens’ case, arguments (a) and (b) are unavailing.
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The circuit court also denied argument (c):
To the extent that Petitioner claimed counsel failed to record a telephone motion
hearing that “ultimately contributed” to the denial of a motion for a speedy trial and
a motion to dismiss the enhanced indictment, the Court finds that Petitioner’s
claims fail as conclusory. Petitioner did not proffer the date of the alleged motion
hearing or explain how a failure to record it would have caused a motion to be
denied on its merits. Nor did Petitioner proffer that either a speedy trial motion or
a motion to dismiss would have been meritorious.
Givens v. Clarke, No. CL16-1071-00, slip op. at 12 (citations removed). I agree with the state
circuit court’s analysis. Givens’ allegations are conclusory because they lack any factual support,
including: hearing dates, how recording the phone hearing would have resulted in a different
outcome, and the merits of the motions. Therefore, argument (c) is without merit. See Nickerson,
971 F.2d at 1135.
As for argument (d), the state habeas court held:
To the extent Petitioner complained that counsel failed to move for a hearing
allowing him to present evidence regarding prior sexual acts between the victim
and either Petitioner or third parties, the Court finds that Petitioner failed to proffer
what, if any, evidence existed. Without such a proffer, this Court cannot evaluate
if such a motion would have been meritorious or if Petitioner was prejudiced.
Givens v. Clarke, No. CL16-1071-00, slip op. at 12 (citation removed). I agree with the state
circuit court’s analysis. Argument (d) is unavailing because Givens has not proffered what, if any,
evidence he would have presented. See Beaver, 93 F.3d at 1195.
For argument (e), Givens fails to show that counsel was ineffective because he admits that
counsel met with and communicated with him, and “there is no established ‘minimum number of
meetings between counsel and client prior to trial necessary to prepare an attorney to provide
effective assistance of counsel.’” Moody v. Polk, 408 F.3d 141, 148 (4th Cir. 2005) (quoting
United States v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988)). During his plea colloquy, Givens
told the court, under-oath, that he was satisfied with counsel’s services, and counsel candidly
15
discussed her interpretation of the case and the advice she offered to Givens. Furthermore, Givens
fails to present evidence showing a reasonable probability that, if counsel had met and
communicated with him more often, he would not have pleaded guilty and would have proceeded
to trial. Therefore, argument (e) is without merit.
For argument (f), although the Virginia State Bar later investigated and/or disciplined
defense counsel for missing hearings and misappropriation of client funds, counsel’s actions in
other cases have little, if any, relevance to her actions in Givens’ proceedings. A petitioner must
present evidence, or point to evidence in the record, of counsel’s ineffectiveness directly related
to his case; Givens fails to do so. See Nickerson, 971 F.2d at 1135. Therefore, argument (f) is
without merit. Accordingly, I will grant the motion to dismiss as to Claim 2.8
C.
Claim 3
In Claim 3, Givens asserts that counsel was ineffective because she coerced him into
pleading guilty on the night before trial was scheduled to start. He alleges that he felt like defense
counsel and the Commonwealth’s Attorney worked together to coerce him into pleading guilty,
that they rushed him into the plea, and that he lied when he told the court that he was satisfied with
the services of defense counsel. On habeas review, the circuit court rejected the claim:
The Court finds that Petitioner told it that he decided himself to plead guilty; was
doing so freely and voluntarily, without being forced or threatened; and was
“absolutely” satisfied with counsel. As he offered no reason to controvert these
statements, he is bound by them, and they conclusively establish that he was not
coerced.
To the extent that the state court and the respondent’s motion to dismiss did not directly
address the underlying merits of any part of Claim 2, I conclude that Givens fails to establish that
the state court’s application of Anderson was contrary to, or an unreasonable application of, federal
law, or an unreasonable determination of the facts.
8
16
Givens v. Clarke, No. CL16-1071-00, slip op. at 13 (citations and footnote omitted). I agree with
the state circuit court’s analysis.
A coerced guilty plea is not valid; a guilty plea “must be an intelligent act done with
sufficient awareness of the relevant circumstances and likely consequences.”
McMann v.
Richardson, 397 U.S. 759, 766 (1970) (internal quotation marks and citations omitted). At his
plea hearing, Givens told the circuit court that he understood the following: the charge against him,
the plea agreement’s terms, all of the court’s questions, the potential punishment, and that he
waived several rights. Guilty Plea Hr’g Tr. 7-10. He confirmed to the court that he had enough
time to discuss the Alford plea, the plea agreement, and possible defenses with counsel. Id.
Furthermore, he stated that he was not under the influence of any drugs, had not been threatened
or forced to enter the Alford plea, did not have any mental or physical impairment, and he decided
for himself, freely and voluntarily, to enter the Alford plea. Id. The state trial court then accepted
Givens’ plea and found it to be freely and voluntarily entered.
Givens’ conclusory allegations fail to show coercion or that “extraordinary circumstances”
invalidate his guilty plea. See McMann, 397 U.S. at 767; Lemaster, 403 F.3d at 221. Givens also
fails to undermine the validity of his guilty plea by otherwise establishing that counsel was
ineffective. See Broce, 488 U.S. at 574. Therefore, the state court’s determination that Givens
was bound by the representations he made under oath during his plea colloquy pursuant to
Anderson was not contrary to, or an unreasonable interpretation of federal law, or an unreasonable
determination of the facts, and I will grant the motion to dismiss as to Claim 3.
D.
Claim 4
In Claim 4, Givens alleges he was denied due process, asserting that the evidence was
insufficient because it would not have shown the “force, threat, or intimidation” element under Va.
17
Code § 18.2-67.2.9 Givens reiterates the arguments counsel raised at his guilty plea hearing:
Givens was a well-respected pastor within months of earning a doctorate degree at the time of his
arrest, he had mentored many parishioners, his relationship with the victim was voluntary and
consensual, and the victim’s mother facilitated the relationship.
On direct appeal, the state court refused review of the sufficiency argument pursuant to
Perry v. Commonwealth, 533 S.E.2d 651 (2000). Givens v. Commonwealth, No. 135-14-3, slip
op. at 2 (Va. Ct. App. Sept. 23, 2014), Dkt. 17-3. In Perry, the Court of Appeals of Virginia
determined that an Alford plea, like a traditional guilty plea, waives the defendant’s right to appeal
the sufficiency of the evidence. Perry, 533 S.E.2d at 653. The Fourth Circuit agrees: by entering
an Alford plea, a Virginia criminal defendant “waive[s] his right to appeal the issue of whether the
evidence was sufficient to prove beyond a reasonable doubt that he was guilty of that charge.”
Price v. Johnson, 218 F. App’x 274, 275 (4th Cir. 2007) (28 U.S.C. § 2254 petition) (“Price argues
on appeal that there was insufficient evidence to sustain his conviction. Under Perry, regardless
of whether Price entered an Alford plea or traditional guilty plea, he waived his right to challenge
the sufficiency of the evidence.”). Therefore, Givens’ Alford plea waived his right to challenge
the sufficiency of the evidence on appeal, and I conclude that the state court’s determination was
not contrary to, or an unreasonable interpretation of, federal law, or based on an unreasonable
determination of the facts. Accordingly, I will grant the motion to dismiss as to Claim 4.
V.
CONCLUSION
For the reasons stated, I will grant the motion to dismiss. Givens’ petition is without merit.
An appropriate order will enter this day.
Va. Code § 18.2-67.2 criminalizes sexual penetration 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.”
9
18
The Clerk is directed to send copies of this memorandum opinion and accompanying order
to the petitioner and to counsel of record for Respondent. Further, concluding that the 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 will be denied.
ENTER: This _______ day of January, 2019.
30th
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