Howell v. Clarke

• Decision Date: 01 June 2022
• Docket Number: 1:21cv1041 (CMH/TCB)
• Parties: Kevin L. Howell, Petitioner, v. Harold Clarke, Respondent
• Court: U.S. District Court — Eastern District of Virginia

Kevin L. Howell, Petitioner, v. Harold Clarke, Respondent

No. 1:21cv1041 (CMH/TCB)

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

June 1, 2022

MEMORANDUM OPINION

Kevin L. Howell (“Howell” or “Petitioner”) a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, challenging his convictions in the Circuit Court of the City of Portsmouth, Virginia for first-degree murder and one count of the use of a firearm in the commission of murder. [Dkt. No. 1]. Respondent filed a Motion to Dismiss with a supporting brief and exhibits [Dkt. Nos. 11-13], and notified of petitioner of his right to respond after receiving the notice required by Roseboro v Garrison, 528 F.2d 309 (4th Cir. 1975) [Dkt. No. 14]. Petitioner has filed a response. [Dkt. No. 17]. Howell has also requested an evidentiary hearing. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition will be dismissed.

I. Procedural History

Petitioner is detained pursuant to the Circuit Court of the City of Portsmouth, Virginia's September 20, 2018 judgment sentencing him to life in prison, plus three years, for his convictions for first-degree murder, in violation of Virginia Code § 18.2-32; and use of a firearm in the commission of a felony in violation of Virginia Code § 18.2-53.1. (CCT at 110-11). Commonwealth v. Howell, Case Nos. 17-731-02, -03. The convictions resulted from Howell's three-day jury trial on April 23-25, 2018. (Id. at 51, 66-68).

Judge of the Court of Appeals of Virginia denied Howell's petition for appeal on June 5, 2019, and the denial was upheld by a three-judge panel of the court on August 20, 2019. Howell v. Commonwealth, Record No. 1642-18-1. Howell's petition for appeal had alleged that the evidence did not establish first-degree murder because he had acted in self-defense; that the evidence did not show that he had acted with malice, but in the heat of passion; and that the evidence did not prove premeditation. The Supreme Court of Virginia refused his subsequent petition for appeal by order dated February 7, 2020. Howell v. Commonwealth, Record No. 191190.

On June 8, 2020, Howell filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, which raised the following claims:

a. Trial counsel provided ineffective assistance by:

1) Failing to call Carlos Roberts as a witness at trial;

2) Failing to call Jirrell Johns as a witness at trial;

3) Failing to call Deshawn Carter as a witness at trial;

4) Failing to move for a new trial after learning that Carlos Roberts refused to testify because he was threatened;

5) Failing to move for a mistrial due to the prosecutor's statements in closing, specifically the statements that:

i. The victim's body was speaking to the jurors and was saying the killing was not self-defense;

ii. Jerry Askew did not testify and was the source of blood at the crime scene;

iii. There was a lack of witnesses because they were scared of petitioner;

iv. Petitioner was suffering from the “CSI effect;” v. The jury could disregard the self-defense instruction;

vi. Petitioner had not shown any of the four prongs of self-defense; 6) Failing to move for a psychiatric evaluation of petitioner;

b. The Commonwealth engaged in prosecutorial misconduct during closing arguments.

(VSCT H. at 3-4, 6-19). The court summarized the evidence as follows:

The record, including the trial transcript and trial exhibits, demonstrates that on April 9, 2017, at approximately 2:00 a.m., petitioner shot and killed Maurice Gore at an after-hours party house (the house). Twenty to thirty individuals were present at the house when the shooting occurred, but there was no one in or near the house when police arrived fifteen minutes later and discovered Gore's body. There were no weapons on or near Gore's body. A .40 caliber firearm was recovered from a box in an upstairs bedroom closet and a nine-millimeter magazine containing eight rounds was recovered from the yard, but petitioner's gun was never found. At a local hospital, police located Jerry Askew, who had been in the house and had sustained a gunshot wound to his arm, but Askew refused to cooperate with police. Autopsy evidence established Gore was shot between ten to twelve times, including in the side of the head. Nine of the gunshot wounds were fatal. Eleven .40 caliber cartridge casings and six .40 caliber bullets were recovered from the room where Gore's body was found. Four of the six bullets were embedded in the floorboard beneath Gore's body. Five additional .40 caliber bullets were recovered from Gore's body. All eleven cartridge casings and eleven bullets were determined to be from the same firearm, but it was determined they were not fired from the .40 caliber firearm found in the upstairs bedroom closet. Ten days after the shooting, petitioner voluntarily spoke with police and informed them he shot Gore. Petitioner told police he and Gore had been friends and that they had an argument earlier that night at a nightclub because Gore felt petitioner had not helped him when Gore was released from prison. Petitioner further explained that when Gore arrived at the house, Gore threatened to kill him while displaying a gun and was taken outside by other people. Petitioner stated that a man he did not know handed him a gun and when Gore came back in the house, he shot Gore in self-defense. Petitioner stated he shot Gore multiple times until Gore hit the floor. Despite evidence to the contrary, petitioner denied shooting Gore while standing over him. Petitioner stated he threw his gun in the street when he left. Petitioner told police he heard Gore had been robbed of his gun, cash, and earrings. However, a forensic technician recovered gold earrings from Gore's body and $525 from his pants pocket. Petitioner gave police the names of people he recalled being in the house at the time of the shooting. No eyewitnesses to the shooting testified at trial. Petitioner also did not testify at trial. The jury was instructed on both justifiable and excusable self-defense but found petitioner guilty of first-degree murder and use of a firearm in the commission of a felony.

(Id. at 844-45). The court dismissed the petition on April 1, 2021, finding that counsel was not effective and that petitioner's claim of prosecutorial misconduct was barred under Slayton v. Parrigan, 215 Va. 27, 29 (1974). (Id. at 854-55).

On August 24, 2021, Howell filed his § 2254 petition for a writ of habeas corpus and raised the following claims:

Ground I: Ineffective assistance of counsel as counsel failed to contact, interview, or subpoena three witnesses: Carlos Roberts, Jirrell Johns, and Deshawn Carter. [Dkt. No. 2 at 3, 6-7].

Ground II: Ineffective assistance of counsel because counsel failed to object to prosecutor's closing arguments, when the prosecutor argued that:

a. “Mr. Askew was present during the shooting” and “his blood was recovered” at the crime scene, but there was no evidence to support the argument because Askew did not testify. [Id. at 14].

b. The victim's body was “speaking to” the jurors, “calling out for justice, ” and that his last words were “I love you mom.” [Id. at 15].

c. argued that there were “20 or 30 witnesses present during the” shooting, but that no witnesses had come forward because they were “scared to testify because this ‘horrible scary person who they saw execute another person is sitting right here and his name is Kevin Howell;” and that the reason the prosecution did not have any other evidence was because ‘each and every witness was afraid because they saw this man execute” the victim. [Id. 15-16].

d. Petitioner waited to come forward until he had determined what the evidence was so he would know what to say, which the prosecutor called the “CSI effect;” [khat 17].

e. the jury could disregard the self-defense instruction because the petitioner's statement he acted in “self-defense” was “not credible.” [Id.].

Ground III: Petitioner's due process rights were violated by the Commonwealth engaging in prosecutorial misconduct during closing arguments. [Id. at 18].

II. Exhaustion and Procedural Default

Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. See 28 U.S.C. § 2254(b); Granberry v Greer, 481 U.S. 129 (1987). 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 must have presented the same factual and legal claims raised in his § 2254 petition to the Supreme Court of Virginia. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Kasi v. Angelone, 300 F.3d 487, 501-02 (4th Cir. 2002). The petitioner bears the burden of proving exhaustion. See Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).

Further “[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim.” Id. “A habeas petitioner is barred from seeking federal review of a claim that was presented to a state court and clearly and expressly denied on the independent, adequate state ground of procedural default.” Bennett v. Angelone, 92 F.3d 1336, 1343 (4th Cir. 1996) (internal quotation marks omitted); see also Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is “adequate”...