Bell v. Johnson
| Decision Date | 01 March 2011 |
| Docket Number | 1:10cv382 (AJT/TCB) |
| Parties | Denory A. Bell, Petitioner, v. Gene M. Johnson, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Denory A. Bell, 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 constitutionality of his conviction of indecent liberties with a child and forcible sodomy following a bench trial in the Circuit Court for the City of Hampton, Virginia. On August 27, 2010, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and exhibits. Bell was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he has filed a memorandum in support of his petition in response. Filing of the pertinent state court records was completed on November 4, 2010. For the reasons that follow, respondent's Motion to Dismiss must be granted, and Bell's claims must be dismissed.
On July 14, 2006, Bell was sentenced to a total of twenty-five (25) years incarceration following his conviction of two counts of forcible sodomy and two counts of taking indecent liberties with a child. Hampton Circuit Court Case No. CR06-351; Resp. Ex. A, Att. 1, Sentencing Orders. Bell pursued a direct appeal to the Court of Appeals of Virginia, raising the following claims:
1. The trial court erred in denying his motion to suppress his January 13th statement where it had been obtained after he invoked his right to an attorney.
2. The trial court erred in denying his motion to strike the two forcible sodomy charges where the Commonwealth's evidence failed to prove the element of intimidation.
3. The trial court erred in denying his motion for a continuance to give him time to subpoena a witness who had just written a letter to defense counsel containing pertinent information.
Resp. Ex. A, Att. 2, Appellant's Petition for Appeal. By per curiam Order dated January 23, 2007, Bell's petition for appeal was denied. Bell v. Commonwealth. R. No. 1813-06-1 (Va. Ct. App. Jan. 23, 2007); Resp. Ex. A, Att. 3. Bell's subsequent petition for review by a three-judge panel was granted in part, and an appeal was awarded solely on the question of whether the trial court erred in denying the motion to strike the forcible sodomy charges. Resp. Ex. A, Att.5. On December 18, 2007, the panel concluded that "the evidence was sufficient to prove the required intimidation, " and affirmed Bell's forcible sodomy convictions. Bell v. Commonwealth. R. No. 1813-06-1 (Va. Ct. App. Dec. 18, 2007); Resp. Ex. A, Att. 6. Bell petitioned the Virginia Supreme Court for further review of the issue of whether the motion to strike was properly denied, but his petition for appeal was refused. Bell v. Commonwealth. R. No. 080027 (Va. Apr. 10, 2008); Resp. Ex. A, Att. 7. On April 9, 2009, Bell filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, essentially arguing that he received ineffective assistance of appellate counsel when the denial of his motion to suppress was not presented to the Supreme Court of Virginia for review. Resp. Ex. B. The petition was dismissed on October 9, 2009, on the holding that "petitioner has failed to demonstrate that counsel's performance was deficient, " Bell v. Dir.. Dep't of Corrections.
R. No. 090719 (Va. Oct. 9, 2009); Resp. Ex. C, and the Court subsequently denied Bell's petition for rehearing of that result. Resp. Ex. D.
On or about April 15, 2010, Bell timely filed the instant application for federal habeas corpus relief.1 Because the initial pleading was a non-standardized petition which did not supply sufficient information to allow the Court to determine the threshold issues of exhaustion and procedural default, Bell was directed to submit an amended petition using a set of standardized forms, in compliance with Local Rule 83.4. Petitioner was cautioned that the amended petition would serve as the sole petition in this civil action. On May 17, 2010, Bell complied with those instructions, and filed a standardized petition raising the following claims:
1. His Miranda rights were violated during his custodial interrogation, in violation of the Fifth Amendment.
2. He was denied his Sixth Amendment right to counsel during his interrogation.
3. Appellate counsel was ineffective for failing to include the denial of his motion to suppress in the petition for direct appeal to the Virginia Supreme Court.2
Respondent has filed a Motion to Dismiss Bell's claims, and Bell has filed a memorandum in reply. Accordingly, this matter is now ripe for review.
Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. 28 U.S.C. § 2254(b); Granberrv v Greer. 481 U.S. 129 (1987); Rose v. Lundv. 455 U.S. 509 (1982); Preiser v. Rodriguez. 411 U.S. 475 (1973). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel. 526 U.S. 838, 845 (1999). Thus, a petitioner convicted in Virginia first must have presented the same factual and legal claims raised in his federal habeas corpus application to the Supreme Court of Virginia on direct appeal or in a state habeas corpus petition. See, e.g.. Duncan v. Henrv. 513 U.S. 364(1995).
In this case, neither of Bell's first two claims-that his Miranda rights were violated during his custodial interrogation in violation of the Fifth Amendment, and that he was denied his Sixth Amendment right to counsel during his interrogation-have been presented to the Supreme Court of Virginia for review. Although Bell raised the Sixth Amendment claim in his direct appeal to the Virginia Court of Appeals, it was not argued as a ground for relief in the subsequent petition for appeal to the Virginia Supreme Court. The Fifth Amendment claim was not raised in any of Bell's state court proceedings. Therefore, both claims 1 and 2 of the instant petition remain unexhausted.
Although Bell did not properly present claims 1 and 2 to the Supreme Court of Virginia, they are nonetheless treated as exhausted because petitioner is now precluded from raising them in state court. Specifically, the claims are procedurally defaulted under Virginia Code § 8.01-654(B)(2), which bars successive state habeas applications. Moreover, because Bell did not allege in his petition for rehearing in his state habeas proceeding that the Supreme Court of Virginia had misconstrued or failed to address his claims, he is precluded from doing so here. See Ramdass v. Angelone. 28 F. Supp. 2d 343, 356-57 (E.D. Va. 1998) (). Because "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim, " Baker v. Corcoran. 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland. 518 U.S. 152, 161 (1996)), claims 1 and 2 of this petition are simultaneously exhausted and defaulted for purposes of federal habeas review. See Bassette v. Thompson. 915 F.2d 932 (4th Cir. 1990).
Federal courts may not review barred claims absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris v. Reed. 489 U.S. 255, 260 (1989). The existence of cause ordinarily turns upon a showing of (1) a denial of effective assistance of counsel, (2) a factor external to the defense which impeded compliance with the state procedural rule, or (3) the novelty of the claim. See Coleman. 501 U.S. at 753-54; Clozza v. Murray. 913 F.2d 1092, 1104 (4th Cir. 1990): Clanton v. Muncv. 845 F.2d 1238, 1241-42 (4th Cir. 1988). Importantly, a court need not consider the issue of prejudice in the absence of cause. See Komahrens v. Evatt. 66 F.3d 1350, 1359 (4th Cir. 1995), cert, denied. 517 U.S. 1171 (1996).
In his Memorandum in Support of Petition, which serves as his reply to respondent's Motion to Dismiss, Bell argues essentially that the Court should deem claims 1 and 2 exhausted because he has made "repeated attempts" to challenge the denial of his motion to suppress in his state courtproceedings. Docket # 14. Bell's position fails for two reasons. First, for a claim to be exhausted for federal purposes, "both the operative facts and the 'controlling legal principles' must be presented to the state court." Matthews v. Evatt. 105 F.3d 907, 910-11 (4th Cir. 1997) (quoting Picard v. Connor. 404 U.S. 270, 275-78 (1971)); see also. Pruett v. Thompson. 771 F.Supp. 1428, 1436(E.D.Va. 1991), aff'd 996F.2d 1560 (4th Cir. 1993) ). Here, while it is true that Bell challenged the denial of his motion to suppress in the state forum, he never did so on the ground that his Fifth Amendment rights thereby were violated, so it is apparent that claim 1 of this petition remains unexhausted and hence is procedurally defaulted from further review. And while Bell did argue that his Sixth Amendment rights were compromised during his custodial interrogation, he pursued that claim only until it was rejected by the Virginia Court of Appeals. Since the Supreme Court of Virginia thus never had the opportunity to review claim 2, it also is unexhausted and barred from consideration here.
Petitioner also includes a reference in his Memorandum to a case in which the Seventh Circuit Court of Appeals held that a procedural default could be excused where counsel failed to...
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