Baker v. Clarke

• Decision Date: 24 March 2015
• Docket Number: No. 1:14cv383TSE/JFA.,1:14cv383TSE/JFA.
• Parties: Calvin BAKER, Petitioner, v. Harold CLARKE, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

95 F.Supp.3d 913

Calvin BAKER, Petitioner

v.Harold CLARKE, Respondent.

No. 1:14cv383TSE/JFA.

United States District Court, E.D. Virginia, Alexandria Division.

Signed March 24, 2015.

Calvin Baker, Jarratt, VA, pro se.

Kathleen Beatty Martin, Office of the Attorney General, Richmond, VA, for Respondent.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

Calvin Baker, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of his arson conviction in the Circuit Court for the City of Virginia Beach, Virginia. The petition was received on April 3, 2014.¹

On August 14, 2014, respondent filed a Motion to Dismiss and a Rule 5 Answer, with a supporting brief and numerous exhibits. As required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), petitioner was given the opportunity to file responsive materials. He did so, filing a reply on September 8, 2014. The petition asserts seven claims: four claims of ineffective assistance of trial counsel, one claim of ineffective assistance of appellate counsel, one claim that the trial court lacked jurisdiction over his offense, and one claim that the Supreme Court of Virginia failed to appoint counsel for petitioner during his first state habeas proceeding. For the reasons that follow, all of these claims fail, and the petition must be dismissed.

I.

On June 20, 2011, petitioner pled guilty to one count of arson in the Circuit Court for the City of Virginia Beach. Commonwealth v. Baker, Case No. CR11–1256. The record reflects that this was not petitioner's first arson conviction. He had previously been convicted of arson in 2009. See, e.g., Trial Transcript (“Tr. Trans.”), Baker v. Commonwealth (Nov. 9, 2011), at 31. With respect to petitioner's 2011 arson conviction, the record reflects that, on February 28, 2011, petitioner set fire to his mother's house, where he also lived. The two family dogs died in the fire. See id. at 28; see also Plea Hearing, Baker v. Commonwealth.

Following petitioner's plea, the Virginia Beach circuit judge sentenced him to 40 years in prison, with 20 years suspended, on November 9, 2011. On November 30, 2011, the same judge denied petitioner's motion to withdraw his guilty plea, a motion based on petitioner's claim that he had additional evidence showing that he may have been insane at the time of the offense.² Petitioner challenged the denial of his motion to withdraw his guilty plea in the Court of Appeals of Virginia. The Court of Appeals of Virginia denied the petition for appeal on May 10, 2012, and a three-judge panel denied a petition for rehearing on August 29, 2012. Baker v. Commonwealth, R. No. 2468–11–1 (Va.Ct.App.2012). Petitioner did not appeal his conviction or sentence to the Supreme Court of Virginia.

On August 12, 2013, petitioner filed a petition for writ of habeas corpus in the Supreme Court of Virginia, arguing only that his appellate counsel was ineffective for withdrawing from his appeal without notice and without filing an Anders³ brief.⁴ The Supreme Court of Virginia dismissed the petition on March 14, 2014. Baker v. Dir. of the Dep't of Corr., R. No. 1313240 (Va.2014). On March 25, 2014, petitioner filed a second petition for a writ of habeas corpus in the Supreme Court of Virginia, asserting the following six claims:

1. That trial counsel was ineffective for failing adequately to investigate an insanity defense;2. That trial counsel was ineffective for failing to order a competency evaluation prior to petitioner's guilty plea;

3. That petitioner's guilty plea was involuntary due to trial counsel's failure to advise him of the sentencing guidelines;

4. That trial counsel was ineffective for failing to negotiate a plea bargain with the prosecution;

5. That the trial court lacked jurisdiction over the offenses due to a defective indictment; and

6. That the Supreme Court of Virginia erred in failing to appoint counsel in petitioner's first state habeas petition.

The Supreme Court of Virginia dismissed the petition on May 1, 2014 as time-barred, pursuant to Virginia Code § 8.01–654(A)(2). Baker v. Clarke, R. No. 140513 (Va.2014).

In his federal habeas petition at issue here, petitioner initially alleged only that appellate counsel was ineffective for withdrawing from his appeal without notice and without filing an Anders brief. It appears that petitioner alleged only a single claim for habeas relief in his first federal petition because he misread Virginia Code § 8.01–654(B)(2), as it appears he did when filing his first state habeas petition. After being allowed to amend his petition, petitioner filed an amended petition on May 6, 2014, alleging the same seven claims raised in his state habeas petitions. Dkt. 6.

II.

The record reflects, and respondent does not contend otherwise, that petitioner has exhausted all of his claims, as required by 28 U.S.C. § 2254(b). Although petitioner has met this requirement, he has failed to comply with the timeliness requirement set forth in Virginia Code § 8.01–654(A)(2). Specifically, the Supreme Court of Virginia held that his four ineffective assistance of trial counsel claims, his claim of lack of trial court jurisdiction, and his claim of Virginia Supreme Court error, filed in his second state habeas petition, were all procedurally barred from review by Virginia Code § 8.01–654(A)(2), which requires a habeas petition to be filed within either two years of the final judgment of trial or one year of the final disposition of direct appeal. See Baker v. Clarke, slip op., at 1. This ruling by the Supreme Court of Virginia significantly affects the scope of federal habeas review, as it is well settled that where, as here, a state court finds that a claim is procedurally defaulted based on an adequate and independent state-law ground, the claim may not be reviewed on the merits by a federal habeas court, “unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’ ” Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Murray v. Carrier, 477 U.S. 478, 485, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ); Williams v. French, 146 F.3d 203, 208–09 (4th Cir.1998) (internal citations omitted).

Nor is there any doubt that Virginia Code § 8.01–654(A)(2) constitutes an adequate and independent state-law procedural rule. In this respect, a state procedural rule is “adequate” if it is “regularly or consistently applied by the state court,” and is “independent” if its application does not depend on the federal Constitution. Williams, 146 F.3d at 209 (internal citations omitted). In general, a procedural rule derived from a state statute is “firmly established,” and therefore “adequate.” See O'Dell v. Netherland, 95 F.3d 1214, 1240–41 (4th Cir.1996), aff'd, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). Further, as many courts have held, Virginia Code § 8.01–654(A)(2) constitutes an adequate and independent state-law procedural rule, as it is a statutory rule that is not tied to the federal Constitution. See, e.g., Sparrow v. Dir., Dep't of Corr., 439 F.Supp.2d 584, 587–88 (E.D.Va.2006). Accordingly, unless petitioner can establish cause and prejudice for his procedural default, his claims of (i) ineffective assistance of trial counsel, (ii) lack of trial court jurisdiction, and (iii) error by the Supreme Court of Virginia are not reviewable on federal habeas.

To establish cause and prejudice and thereby escape the consequences of the procedural default—a bar to federal habeas review—petitioner relies on Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). See Petitioner's Response to Motion to Dismiss (“Pet.'s Resp.”) [Dkt. 14], at 8. In Martinez, the United States Supreme Court held that, if state law requires a petitioner to raise ineffective assistance of counsel for the first time on collateral review, a petitioner can establish cause for failure to raise such a claim if the state court did not appoint counsel in the collateral review proceeding or if appointed counsel was ineffective. Id. at 1318. If a petitioner establishes cause in this fashion, he must still establish prejudice to overcome the procedural default. In this respect, the petitioner must establish “that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id. at 1318–19 (internal citations omitted). Accordingly, in the words of a recent Fourth Circuit case, a petitioner may rely on Martinez only if

(1) [T]he ineffective-assistance-of-trial-counsel claim is a substantial one; (2) the ‘cause’ for the default ‘consist[s] of there being no counsel or only ineffective counsel in during the state collateral review proceeding’; (3) ‘the state collateral review proceeding was the initial review proceeding in respect to the ineffective-assistance-of-trial-counsel claim’; and (4) state law ‘requires that an ineffective-assistance-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, ––– U.S. ––––, 133 S.Ct. 1911, 1918, 185 L.Ed.2d 1044 (2013) ).

The first step in the analysis to determine whether Martinez applies here is to determine whether, under Virginia law, ineffective assistance of counsel claims may be raised on direct appeal. In this respect, it is clear that Virginia law requires that all claims of ineffective assistance of counsel be raised on collateral review. See, e.g., Lenz v. Commonwealth, 261 Va. 451, 460, 544 S.E.2d 299, 304 (2001) (internal citations omitted) (“Claims raising ineffective assistance of counsel must be asserted in a habeas corpus proceeding and are not cognizable on direct appeal.”); Browning v. Commonwealth, 19 Va.App....