Formica v. Superintendent of the Cent. Va. Reg'l Jail

• Decision Date: 21 September 2015
• Docket Number: Case No. 7:14cv000357
• Court: U.S. District Court — Western District of Virginia
• Parties: MICHAEL J. FORMICA, Petitioner, v. SUPERINTENDENT OF THE CENTRAL VIRGINIA REGIONAL JAIL, et al., Respondents.

MICHAEL J. FORMICA, Petitioner, v. SUPERINTENDENT OF THE CENTRAL VIRGINIA REGIONAL JAIL, et al., Respondents.

Case No. 7:14cv000357

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Roanoke Division

September 21, 2015

REPORT & RECOMMENDATION

By: Joel C. Hoppe United States Magistrate Judge

Michael J. Formica, a Virginia prisoner proceeding pro se, has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Am. Pet., ECF No. 3. The Respondents moved to dismiss the petition, ECF Nos. 59, 62, 91, and Formica responded. Formica moved to stay federal-court proceedings and hold his petition in abeyance while he exhausts certain claims in state court, ECF Nos. 34, 58, which the Respondents oppose. Formica also moved to amend his habeas petition by adding unidentified claims. ECF No. 108.

The matter is before me for a report and recommendation by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 83. Having considered the parties' filings, the available state-court records, and the applicable law, I respectfully recommend that the presiding District Judge deny Formica's motions, grant the Respondents' motions to dismiss, and dismiss the petition with prejudice.

I. Standard of Review

A. Motion to Dismiss

A person in custody pursuant to the judgment of a state court claiming the right to be released from a state sentence must show "that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The prisoner ultimately must prove the facts supporting his grounds for federal habeas relief by a preponderance of the evidence. SeeHolland v. Jackson, 542 U.S. 649, 654-55 (2004) (per curiam). On the respondent's motion to dismiss, however, "the familiar standards in Rule 12(b)(6) of the Federal Rules of Civil Procedure apply." Walker v. Kelly, 589 F.3d 127, 138 (4th Cir. 2009) (citing the current R. Gov. § 2254 Cases in U.S. Dist. Cts., Rule 12 (2010)). Thus, a motion to dismiss a habeas petition challenges whether the petition's factual allegations state a claim upon which relief can be granted under 28 U.S.C. § 2254. Id.; Walker v. True, 399 F.3d 315, 320 (4th Cir. 2005).

To survive a motion to dismiss, "the petition and any attached exhibits," R. Gov. § 2254 Cases in U.S. Dist. Cts., Rule 4, "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord Kelly, 589 F.3d at 139. A claim is "facially plausible" when the well-pled facts "allow[] the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged" under the governing law. Iqbal, 556 U.S. at 678. This "standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility," id., that the state prisoner is in custody in violation of his federal rights. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); cf. United States v. White, 366 F.3d 291, 297 (4th Cir. 2004) ("A court cannot summarily dismiss a [habeas] petitioner's allegations simply because the petitioner has yet to prove them by a preponderance of the evidence.").

Determining whether a petition clears this threshold is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. In doing so, the court accepts as true all well-pled facts and construes those facts and all reasonable inferences in the petitioner's favor.¹ Kelly, 589 F.3d at 139. The court may alsoconsider the necessary state-court records, R. Gov. § 2254 Cases in U.S. Dist. Cts., Rule 5(c)-(d), and matters of public record in conjunction with a Rule 12(b)(6) motion. Kelly, 589 F.3d at 139. Summary dismissal is not appropriate when the prisoner alleges facts that, if accepted as true and not "directly contradicted" by the record, United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005), would entitle him to federal habeas relief on a particular claim. See True, 399 F.3d at 320.

B. Motion to Amend

Leave to amend a pleading should be freely granted when justice so requires. Fed. R. Civ. P. 15(a)(2). The court should deny leave "only where good reason exists," Franks v. Ross, 313 F.3d 184, 189 n.15 (4th Cir. 2002), such as when amending would be futile, cause undue delay, or prejudice the opposing party, Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc). A proposed "amendment may properly be found futile where, as a matter of law, it fails to state a claim" upon which relief can be granted. Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 712 (W.D. Va. 2008).

II. Background

On June 11, 2012, a grand jury in Greene County, Virginia, indicted Formica on four felony and 16 misdemeanor counts related to stalking, trespassing, and repeatedly violating a protective order. See Resp. Ex. A, Greene Cnty Cir. Crim. Div. Case Details at 1-41,Commonwealth v. Formica, Nos. CR12-99 to -102, and CR12-130 to -147, ECF No. 60-1 at 2-42. The charges stemmed from Formica's repeated attempts to contact his female victim in January and February 2012. See Resp. Ex. H, Plea Hr'g Tr. at 6-9, Commonwealth v. Formica, Nos. CR12-130 to -133, and CR12-135 to -137 (Va. Cir. Ct. Oct. 17, 2012), ECF No. 60-1 at 249-51.

A. Trial Court Proceedings

Formica's jury trial was set to begin in circuit court on October 17, 2012. See Plea Hr'g Tr. 3. That morning, Formica and the Commonwealth entered into a written plea agreement.² Id. at 3-4. It called for Formica to plead guilty to seven misdemeanor counts: one count of stalking, in violation of Virginia Code § 18.2-60.3; one count of trespassing after being forbidden to do so, in violation of Virginia Code § 18.2-119; and five counts of violating a protective order, in violation of Virginia Code § 18.2-60.4. In exchange, the Commonwealth would nolle prose the other four felony and eleven misdemeanor counts of violating a protective order. See id. at 17-18. The parties also stipulated that the court would sentence Formica to a specific term of incarceration. Id. at 14-15, 18.

Formica appeared with his attorney, Scott Braxton Puryear, for a change-of-plea hearing before Circuit Judge Donald Haddock on October 17, 2012. See id. at 4. Judge Haddock first addressed Mr. Puryear's pending motion to withdraw from the case³:

The Court: Now, Mr. Formica, before I get started with the reading of the charges and the --- your entry of --- of your pleas, if that's what you intend to do, I want to take up with you the issue that has kind of stalled us this morning, and that is your counsel's motion to be relieved and to withdraw as counsel. Were you aware that he had filed such a motion?

Mr. Formica: Sir, yes, sir.

The Court: Have you had an opportunity to review it?

Mr. Formica: Sir, yes, sir.

The Court: And you've discussed it with him?

Mr. Formica: Yes, sir.

The Court: And as I understand it there was a time yesterday that you were not willing to speak with your counsel and first thing this morning the same. Am I correct in that understanding?

Mr. Formica: Sir, yes, sir.

The Court: Okay. But now, apparently, you-all [sic] have reached some kind of an agreement?

Mr. Formica: Yes, sir.

The Court: My question to you is, are you currently satisfied with the representation of Mr. Puryear as your attorney?

Mr. Formica: Sir, yes, sir.

The Court: And so whatever difficulties you had, and I don't want to get into those unless you feel like I need to, but those difficulties have been resolved between the two of you?

Mr. Formica: Sir, yes, sir.

Id. at 4-5. Formica was re-arraigned on one misdemeanor count of stalking, one misdemeanor count of trespassing, and five misdemeanor counts of violating a protective order. See id. at 6-8. He entered a plea of guilty to each count. See id.

Judge Haddock then put Formica under oath, id. at 8, and asked him if he understood the terms of his written plea agreement, the elements of the offenses charged, the potential maximum penalties he faced if convicted of those offenses, and the rights he was giving up by pleadingguilty under the agreement, including his rights to appeal and to withdraw his guilty pleas if the court accepted the parties' agreed-upon sentence. See generally id. at 9 (elements), 10-11, 13, 14-15 (waiver), 12-13 (penalties), 13-15, 17-19 (general terms). Formica testified that he understood the court's admonishments and wanted to plead guilty. See generally id. at 8, 9-12, 13-14, 14-16. Specifically, Formica testified that, after discussing his options with Mr. Puryear, he personally decided to plead guilty under the terms of this agreement because he was in fact guilty of the offenses charged and he thought "the plea agreement [wa]s an appropriate disposition" in his case—not because Mr. Puryear "in any manner threatened [him] or forced [him] to plead guilty" on the morning of trial. Id. at 9, 12-14. Formica again confirmed that he was "entirely satisfied with" Mr. Puryear's services at that time. Id. at 12.

Judge Haddock accepted Formica's plea of guilty to each of the misdemeanor offenses identified in the agreement.⁴ See generally Resp. Ex. B, Cir. Ct. Sent. Orders at 1-21, Commonwealth v. Formica, Nos. CR12-130 to -133, and CR12-135 to -137 (Va. Cir. Ct. Oct. 25-26, 2012), ECF No. 60-1 at 44-64. Per the parties' written agreement, Judge Haddock sentenced Formica to a total of 84 months' incarceration, with 60 months suspended, followed by a 12-year term of supervised release.⁵ See Plea Hr'g Tr. 22-23. The Circuit Court enteredfinal sentencing orders on October 25 and 26, 2012. Formica filed a pro se notice of appeal in the Greene County Circuit Court on November 1, 2012. See Resp. Ex. D, Formica v. Commonwealth, No. 2067-13-2, slip op. at 1 (Va. Ct. App. Aug. 20, 2014) (Formica I), ECF No. 60-1 at 95. The case was delayed until December 2013 at least in part because the Commonwealth Attorney's Office did not receive Formica's notice of appeal. See...