Johnson v. Clarke

• Docket Number: 2:20cv474
• Decision Date: 14 June 2022
• Parties: DEANDRE JOHNSON, #20182885, Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

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DEANDRE JOHNSON, #20182885, Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

No. 2:20cv474

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

June 14, 2022

REPORT AND RECOMMENDATIONS

Lawrence R. Leonard, United States Magistrate Judge.

This matter is before the Court on Petitioner Deandre Johnson's (“Petitioner”) pro se Petitions for a Writ of Habeas Corpus (“the Petitions”) filed pursuant to 28 U.S.C. § 2254 ECF Nos. 1,15, and Respondent Harold W. Clarke's (“Respondent”) Motion to Dismiss, ECF No. 26. The matter was referred for a recommended disposition to the undersigned United States Magistrate Judge (“undersigned”) pursuant to 28 U.S.C §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. The undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that the Respondent's Motion to Dismiss, ECF No. 26, be GRANTED, and the Petitions, ECF Nos. 1, 15 be DENIED and DISMISSED WITH PREJUDICE.

L PROCEDURAL BACKGROUND

On June 5, 2019, Petitioner was convicted of Strangulation, Rape Assault and Battery- Family Member, and Unlawful Entry (the “First Convictions”) in the Circuit Court of Spotsylvania County (the “Trial Court”). ECF No. 28 at 1. The Trial Court entered its judgment on November 19, 2019, and sentenced Petitioner to fourteen years in prison. Id.-, ECF No. 11, attach. 1 at 1. Petitioner appealed his First Convictions to the Court of Appeals of Virginia, arguing that the Trial Court erred by denying his motion to set aside the verdict with respect to the rape, strangulation, and unlawful entry charges because the victim's testimony was not credible and conflicted with his testimony. ECF No. 28 at 1. According to the factual findings of the Court of Appeals of Virginia, Petitioner's conviction arises out of the following factual background:

After dating in college, appellant and Courtney Tejada got married in November 2018, but immediately attempted to dissolve the union. In December 2018 they were estranged, and Tejada was living with Nestar Macias. Appellant was opposed to the divorce and, on the afternoon of December 26, 2018, he texted Tejada and begged her to reconcile. Tejada threatened to get a restraining order if he did not leave her alone.

That evening, Tejada and Macias were climbing the exterior stairwell to her third-floor apartment when the appellant approached them from behind. Appellant grabbed Tejada, put his hand over her mouth, and pushed her inside the apartment. Tejada yelled to Macias to call the police. Once appellant and Tejada were inside her apartment, he pushed her into the bedroom, forced her onto the bed and tore off her clothes. When he ripped off her shirt, he bit her on the breast. Appellant penetrated her vaginally with his penis, but he was unable to maintain an erection and withdrew.

Macias called Tejada's father for help and entered the apartment. When he looked into the bedroom, he saw appellant in bed with Tejada with his hands around her throat. Appellant threatened to kill him, prompting Macias to retreat and call 911. After Macias's departure, appellant choked Tejada so forcefully that she nearly lost consciousness. She testified that he released her only when he heard police sirens approach. Appellant fled the apartment without stopping to collect his boots or his jacket.

When Sergeant Collins responded to Tejada's apartment, he found her sitting on her bed crying. Her clothes were ripped open and there were red marks on her neck. She also had a laceration inside her upper lip. Detective Corona photographed the marks on her neck and the injury to her lip. A pair of black, size 12 men's shoes were on the floor next to Tejada's bed, and appellant's black jacket was in the living room. Shortly after the police arrived at the scene, appellant returned to the apartment building and was apprehended. He was barefoot and was carrying his marriage certificate.

Collins transported appellant to the sheriffs office where Corona interviewed him. Appellant admitted that he had ‘grabbed' Tejada outside her apartment, as well as her apartment keys, and that he had ‘escorted' her into her apartment. However, he denied having any sexual contact with her. When asked why his boots were in her bedroom, appellant replied that he did not know. Appellant also had no explanation for the marks on Tejada's neck.

Following Corona's interview, Collins took appellant to the magistrate. As they waited, Collins outlined the charges against him. In response, appellant emphasized that he ‘didn't penetrate' Tejada. Collins asked, ‘Ifyou didn't penetrate her, would there be any reason why your DNA would be in her vagina area?' Appellant answered, ‘yes,' but stressed that he ‘could not get an erection, so he didn't penetrate her vagina.'

Tejada underwent a SANE examination that evening. The SANE nurse, Wanda Roy, noted that Tejada had bruises on her right breast and marks on her neck consistent with strangulation. Swabs of Tejada's inner thigh and her right breast taken during the examination revealed the presence of foreign DNA material, including seminal fluid on her thigh. Macias was eliminated as a potential contributor of the DNA material, but appellant was not. Forensic biologist Caitlin Ayoub noted that the ‘probability [sic] of randomly . . . selecting an unrelated individual who would be included as a contributor of the profile different from ... Tejada . . . [wa]s one in greater than 7.2 billion,' or ‘approximately the world population in the Caucasian, African-American and Hispanic population.'

At trial, appellant testified that he encountered Tejada and Macias in the stairwell and that, Macias, whom appellant had threatened previously, fled. Appellant stated that Tejada entered the apartment with him voluntarily and that she followed him into the bedroom. He maintained that she consented to having sexual relations with him. Although appellant admitted that he had strangled her on a prior occasion following an altercation, he denied strangling her on the night of December 26,2018. Instead of strangling her, he stated that he slapped her thighs after she insulted him and asked him to leave. While appellant stressed that he was unable to penetrate Tejada's vagina because he could not maintain an erection, he conceded, T wanted to with all my heart.'

ECF No. 28, attach. 1 at 2-4.

Specifically, on appeal, Petitioner argued that (1) “the trial court erred by denying his motion to set aside his strangulation conviction because Tejada's testimony was not credible” and further noted that he “denied strangling Tejada, that she did not black out, and that the evidence demonstrated no ‘lasting injury' to her”; (2) that “Tejada's testimony that he penetrated her vagina with his penis was not credible because she ‘did not actually see his penis' and she admitted he could not maintain an erection”; and (3) that the evidence failed to prove that he entered Tejada's apartment unlawfully because ‘nothing in [his] testimony suggests that he entered [her] apartment without her consent' and that no physical evidence refuted his testimony.” Id. at 4.

On August 20, 2020, the Court of Appeals denied Petitioner's appeal and found that the Trial Court was entitled to accept the victim's testimony and to reject Petitioner's self-serving account, and that the victim's account of events was corroborated by physical evidence and another witness' testimony. ECF No. 28, attach. 1 at 1,5-6. Petitioner then appealed to the Supreme Court of Virginia, and the Supreme Court of Virginia refused the appeal on August 6, 2021. ECF No. 28 at 2.

On April 19, 2019, Petitioner was also convicted of five counts of Protective Order Violations in the Spotsylvania County Circuit Court (the “Second Convictions”). ECF No. 28 at 2; ECF No. 15 at 1. He was sentenced to serve twelve months of incarceration with ten months suspended on each count. ECF No. 28, attach. 4 at 1; ECF No. 15 al 1. Petitioner appealed those convictions to the Court of Appeals of Virginia, but, on June 2,2020, Petitioner moved to withdraw his notice of appeal, which the Court of Appeals of Virginia granted on June 3,2020. ECF No. 28 at 3; ECF No. 15 at 2.

Petitioner has also filed at least three separate petitions for Writ of Habeas Corpus in the Supreme Court of Virginia. Petitioner filed the first petition on December 2,2019 (the “First State Habeas Petition”) challenging his First Convictions and raising the following claims: “sufficiency of evidence, confrontation clause, witness credibility and double jeopardy.” ECF No. 1 at 3. On August 24,2020, the Supreme Court of Virginia dismissed the First State Habeas Petition, finding that Petitioner's claims “are barred because a petition for a writ of habeas corpus may not be employed as a substitute for an appeal.” ECF No. 28, attach. 2 at 1.

Petitioner filed the second petition on January 30, 2020 (the “Second State Habeas Petition”), challenging his Second Convictions and raising the following claims: (1) “the trial court failed to comply with Rule 5A:8(d) when it granted the Commonwealth's objection to petitioner's statement of facts, failed to conduct a hearing, and signed the Commonwealth's statement of facts; and (2) that the evidence at trial was insufficient to sustain his convictions. See ECF No. 28, attach. 4 at 1. On August 24, 2020, the Supreme Court of Virginia dismissed the Second State Habeas Petition, finding that Petition...