Elder v. Clarke

Decision Date13 May 2022
Docket Number4:22-cv-00002-AWA-DEM
PartiesJOHN CRISTOPHER ELDER, Petitioner, v. HAROLD W. CLARKE, Director of the Virginia D.O.C., Respondent.
CourtU.S. District Court — Eastern District of Virginia


HAROLD W. CLARKE, Director of the Virginia D.O.C., Respondent.

No. 4:22-cv-00002-AWA-DEM

United States District Court, E.D. Virginia, Newport News Division



Pro se Petitioner John Christopher Elder ("Elder" or "Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254 to overturn his state convictions stemming from his possession of explosive material. Specifically, Petitioner alleges deprivation of his jury trial right and unconstitutional sentencing. Respondent Harold W. Clarke, Director of the Virginia Department of Corrections ("Respondent"), moved to dismiss the Petition, arguing that Elder had failed to exhaust his state remedies and is now procedurally defaulted. Along with the motion, Respondent provided the notice to pro se parties required by Local Rule 7(K) and the Fourth Circuit's decision in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Plaintiff amended his first claim to one of ineffective assistance of counsel, which Respondent also moved to dismiss because the state court decision on the matter was owed deference. The matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72(b) of the Federal Rules of Civil Procedure. Because Petitioner's claims are exhausted and procedurally defaulted or otherwise barred from federal review, the undersigned recommends that Respondent's motions to dismiss be granted.



On March 23, 2016, at a bench trial in the Circuit Court for the City of Newport News, Elder was convicted of two felonies under Virginia Code § 18.2-85 for (1) possession of explosive materials with intent to manufacture explosive device or fire bomb, and (2) possession of fire bomb, explosive material or device. Resp't Mem. Supp. Rule 5 Answer & Mot. Dismiss ("Resp't Mem.") Ex. A (ECF No. 10-1). Elder was sentenced to a combined total of 14 years, with 12 years and 4 months suspended, on these counts. Id. at 4. Petitioner is no longer incarcerated, see Pet. (ECF No. 1, at 1), but Elder's suspended sentence remains in effect for 14 years from sentencing and includes conditions such as good behavior, Resp't Mem. Ex. A (ECF No. 10-1, at 4).

A. State Court Appeals

Elder appealed his conviction to the Court of Appeals of Virginia, "contend[ing] that the evidence was insufficient to support the convictions." Elder v. Clarke, No. 0964-16-1 (Va. Ct. App. Dec. 30, 2016), Resp't Mem. Ex. B (ECF No. 10-2, at 1). The court denied his petition for appeal on December 30, 2016. Id. at 4. In denying the appeal, the Court of Appeals noted that, under the applicable standard, it could reverse only if "the trial court's decision ... [was] plainly wrong or without evidence to support it." Id. at 3 (quoting Kelly v. Commonwealth, 584 S.E.2d 444, 447 (Va. 2003)). Petitioner appealed to the Supreme Court of Virginia but was denied on January 31, 2019. Elder v. Clarke. No. 170457 (Va. Jan. 31, 2019), Resp't Mem. Ex. B (ECF No. 10-2, at 6). Reconsideration was denied in March 2019. Id. at 7.


B. State Court Habeas Petition

Elder timely filed his petition for a writ of habeas corpus in the Circuit Court for the City of Newport News, Virginia. State Pet., Resp't Mem. Ex. C ("State Pet.") (ECF No. 10-3). He raised four claims, including the following relevant claim as quoted by the state habeas court:

a. Petitioner claims that he was given incomplete and misleading information by counsel that would dissuade any rational person from invoking the right to trial by jury Specifically, that he was misinformed that he would not be able to present character evidence at a jury trial.[1]
i. Petitioner asserts, as a separate claim, deprivation of the Due Process Right of Trial by Jury resulting from ineffective assistance of counsel for the same reasons

Elder v. Clarke, No. CR20H00286 (Va. Cir. Ct. Apr. 7, 2020), Resp't Mem. Ex. D (ECF No. 10-4, at 2-3) (quoting State Pet. (ECF No. 10-3)) (cleaned up). None of Petitioner's claims challenged the constitutionality of the sentencing scheme applied to him.[2]

The state habeas court dismissed Elder's petition on April 7, 2020. Elder, No. CR20H00286 (ECF No. 10-4, at 12). Regarding Claim a(i)-Petitioner's Due Process claim- the court concluded that it was "not cognizable in habeas corpus because it allege[d] a trial error, which could have been raised on appeal," and was thus barred under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (holding that habeas petitions "may not be employed as a substitute


for an appeal or a writ of error"). Id., at 4. Elder's ineffective assistance of counsel claims, including Claim (a) as relevant here, were dismissed because they did not satisfy the two-part test established in Strickland v. Washington. 466 U.S. 668 (1984). Id., at 6-12. The court's opinion is discussed in further detail below.

The Supreme Court of Virginia rejected Elder's habeas appeal on October 1, 2021, and his petition for rehearing on November 22,2021. Record No. 201278.

C. Federal Habeas Petition

On January 11, 2022, Elder filed his petition in this court. He challenges his convictions by asserting various violations of his federal rights, as quoted from his Petition:

Ground One: Petitioner contends that his 6th Amendment Right to Trial by Jury under the U.S. Constitution which has been incorporated against the states under the Due Process Clause of the 14th Amendment was violated.
Ground Two: Petitioner contends that the sentencing scheme contained in [Va. Code §] 18.2-85 violates the 14th Amend[ment] Equal Protection Clause of the United States Constitution. This is both a facial and as-applied challenge.

Pet. (ECF No. 1, at 5, 7). In the memorandum accompanying his Petition, Elder elaborates that Ground Two is a constitutional violation because he was charged with a "greater included offense," which he defines as "occur[ring] where the elements of one crime, a crime that carries a relatively higher penalty, are all present within the elements of a crime that carries a lesser penalty." Pet. Attach. 1 (ECF No. 1, at 19). Elder alleges that he was charged under Virginia Code § 18.2-85 (a class 5 felony with a maximum penalty of 10 years) when he could alternatively have been charged under § 18.2-308.2 (a class 6 felony with a maximum penalty of 5 years). Id., at 19-20. He claims that because his sentence under § 18.2-85 exceeded the maximum under § 18.2-308.2, the alleged excess sentence is void. Id. at 21.

Respondent filed his Rule 5 Answer and Motion to Dismiss, along with a brief in support,


arguing that Elder's claims were simultaneously exhausted and procedurally barred. Resp't Mem. (ECF No. 10, at 5). Petitioner then moved to amend Ground One of his Petition, (ECF No. 13), to clarify that he intended to raise an ineffective assistance of counsel claim as follows:

Amended Ground One: Petitioner claims ineffective assistance of counsel by his trial council [sic] and that as a result of this ineffective assistance his waiver of the Right to Trial by Jury was not voluntarily and intelligently made.

Pet'r's Opp'n Mot. Dismiss, Amend., & Reply ("Pet'r Opp'n") (ECF No. 14, at 2). Respondent did not oppose Petitioner's motion, which the court then granted. (ECF No. 15).

Petitioner also opposed Respondent's motion to dismiss, arguing on Amended Ground One that he "acted pro se on his state Habeas Petition and its appeal," and that under Virginia law, "a claim of ineffective assistance of council [sic] must be brought on collateral attack." Pet'r Opp'n (ECF No. 14, at 3). On Ground Two, Elder argues that his claim was novel, providing him cause, and that he was "held under a constitutionally impermissible sentence," and thus prejudiced. Id. at 3-5.

Respondent had opportunity to respond to Petitioner's Amended Ground One, (ECF No. 15), which he did, arguing that the state court's merit-based decision on this claim was entitled to 28 U.S.C. § 2254(d) deference, ("Resp't Reply") (ECF No. 16, at 3-8). Petitioner was granted an opportunity to file a sur-reply brief, (ECF No. 18), which he did, ("Pet'r Sur-Reply") (ECF No. 20). Petitioner's sur reply resists deference to the trial court's decision, arguing that the Commonwealth of Virginia interfered with his counsel's representation and that the two-part test in Strickland does not apply to his ineffectiveness claim. Id. at 5.



A motion to dismiss "challenges the legal sufficiency of a complaint considered with the assumption that the facts alleged are true."[3] Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (internal citations omitted) (discussing Fed.R.Civ.P. 12(b)(6)); see also Goard v. Crown Auto, Inc.. 170 F.Supp.3d 915, 917 (W.D. Va. 2016) (noting that a "motion to dismiss tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim"). A complaint is subject to dismissal if it does not "contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (cleaned up)). Factual allegations cannot require speculation or merely be conceivable. See Iqbal 556 U.S. at 678; Twombly, 550 U.S. at 555. This inquiry is "context-specific." Nemet Chevrolet. Ltd. v. Consumeraffairs.com, Inc.. 591 F.3d 250, 256 (4th Cir. 2009).

In considering a motion to dismiss, the "court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E. I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citing Sec'y of State for Defence v. Trimble Navigation Ltd.. 484 F.3d 700, 705 (4th Cir. 2007); Phillips v....

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