Jones v. Clarke

• Decision Date: 24 July 2014
• Docket Number: Civil Action No. 7:13-cv-00561
• Court: U.S. District Court — Western District of Virginia
• Parties: DAVID WALLACE JONES, Petitioner, v. HAROLD W. CLARKE, Respondent.

DAVID WALLACE JONES, Petitioner, v. HAROLD W. CLARKE, Respondent.

Civil Action No. 7:13-cv-00561

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

Entered: July 24, 2014

MEMORANDUM OPINION

By: Hon. Michael F. Urbanski

United States District Judge

David Wallace Jones, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss, and the time for Petitioner to respond expired, making the matter ripe for disposition. After reviewing the record, the court dismisses the habeas claims as meritless.

I.

After a bench trial, the Circuit Court for Pittsylvania County sentenced Petitioner to an active sentence of ten years' incarceration for statutory burglary and grand larceny.¹ Petitioner's appeals to the Court of Appeals of Virginia and Supreme Court of Virginia were unsuccessful.

Petitioner filed a petition for a writ of habeas corpus in the Circuit Court for Pittsylvania County that presented claims of ineffective assistance of trial counsel. Per the Circuit Court's order, Respondent's counsel mailed a motion to dismiss to both Petitioner and the Circuit Court on March 20, 2013. The copy of the motion to dismiss sent to Petitioner allegedly included a proposed final order, but Respondent's counsel explained to the Circuit Court in a letter accompanying the motion to dismiss that a proposed final order would be sent to the Circuit Court approximately fourteen days later.

Petitioner filed a "motion to proceed" on April 8, 2013, that addressed the motion to dismiss and asked the Circuit Court to grant habeas relief. On April 9, 2013, the Circuit Court judge signed and entered Respondent's proposed final order, which was nearly identical to the wording of the motion to dismiss. The Supreme Court of Virginia refused a subsequent petition for appeal.

In the instant, timely-filed petition, Petitioner argues that the Circuit Court violated the United States Constitution by signing the proposed dismissal order prepared by Respondent's counsel. Petitioner further argues that trial counsel rendered ineffective assistance by not calling Petitioner's mother as an alibi witness and not conducting a pre-trial investigation to effectively cross examine the prosecution's witnesses. Respondent concedes that the claims are exhausted but argues that they do not entitle Petitioner to relief. The court agrees and dismisses the petition.

II.

A federal court may grant habeas relief from a state court judgment "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). After a state court addresses the merits of a claim also raised in a federal habeas petition, a federal court may not grant the petition unless the state court's adjudication of a claim is contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 1398 (2011).

The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review of each standard. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination is "contrary to" federal law if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413.

A federal court may also issue the writ under the "unreasonable application" clause if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. This reasonableness standard is an objective one. Id. at 410. A Virginia court's findings cannot be deemed unreasonable merely because it does not cite established United States Supreme Court precedent on an issue if the result reached is not contrary to that established precedent. Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts 'the presumption of correctness by clear and convincing evidence.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(e)(1)); see, e.g., Lenz v. Washington, 444 F.3d 295, 300-01 (4th Cir. 2006). Finally, "[a] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).

A.

Petitioner argues that due process and equal protection rights were violated when the state habeas court adopted "ex-parte findings of fact[] and conclusions of law verbatim" bysigning and entering the final order proposed by Respondent. "[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief." Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988); see Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (holding there is no constitutional right to state post-conviction review). This holding applies even when a state habeas court directs the state to draft the order denying a petitioner's habeas claims. Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008).²

Furthermore, no violation of due process or equal protection occurred.³ The Circuit Court was permitted to resolve the case on the record before it without holding an evidentiary hearing. VA. CODE § 8.01-654(5). Petitioner's "motion to proceed" clearly establishes that Petitioner received the motion to dismiss prepared by Respondent. In the "motion to proceed," for example, Petitioner disagreed with counsel's affidavit attached to the motion to dismiss; addressed Respondent's counsel by name, a fact which was apparent on the motion to dismiss; and rebutted specific arguments presented in the motion to dismiss. Petitioner availed himself of the opportunity to address Respondent's particular arguments about each claim and reiterated why he was entitled to habeas relief, and the proposed final order was worded almost identically to the motion to dismiss. Consequently, the court finds that Petitioner had the notice and opportunity to oppose the factual and legal bases of the proposed final order. See In re Harper, 725 F.3d 1253, 1258 (10th Cir. 2013) (recognizing notice and opportunity are integral to due process). Accordingly, this claim must be dismissed.

B.

In his first claim of ineffective assistance of counsel, Petitioner argues that counsel was ineffective by not calling his mother, Connie Palmer, to testify as an alibi witness. Petitioner argues in his second claim that counsel was ineffective for not conducting a pre-trial investigation in order to effectively cross-examine the prosecution's witnesses.

Neither of these claims states a violation of the Sixth Amendment right to effective counsel. A petitioner claiming ineffective assistance of counsel must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of Strickland requires a petitioner to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[,]" meaning that counsel's representation fell below an objective standard of reasonableness.⁴ Strickland, 466 U.S. at 687-88. The second prong of Strickland requires a petitioner to show that counsel's deficient performance prejudiced him by demonstrating a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine the confidence of the outcome." Id.

In his first claim of ineffective assistance of counsel, Petitioner argues that counsel was deficient for not calling his mother to testify as an alibi witness during trial. Petitioner alleges that his mother told counsel that Petitioner could not have committed the offenses on October 16,2010, because she was with him on that day.⁵ Petitioner explains that, when he asked counsel after trial why his mother did not testify, counsel replied, "I didn't think that she was needed."

After reviewing this same claim, the Circuit Court held:

Upon reviewing the record, including affidavit of trial counsel, the [Circuit] Court finds that [this claim] satisfies neither the "performance" nor "prejudice" prong of Strickland. Jones has not provided an affidavit from his mother as to what her testimony would have been. Thus, Jones cannot show that his mother would have testified or that her testimony would have likely probably changed the outcome of the trial. SeeMuhammad v. Warden, 274 Va. 3, 18, 646 S.E.2d 182, 195 (2007) (dismissing claim where petitioner failed [to] proffer any expert affidavits to demonstrate what information these experts could have provided at trial).

Moreover, after discussing with trial counsel whether to call his mother, Jones agreed not to call her. SeeHedrick v. Warden, 264 Va. 486, 505, 570 S.E.2d 840, 852 (2002) ("Petitioner cannot, in a subsequent habeas corpus petition, assert that he was prejudiced by trial counsel's performance simply because [counsel] followed his directive."). On the day of trial, Jones' mother was very anxious and upset, causing trial counsel to have real concerns in her ability to withstand cross-examination and keep the facts straight. Having determined that her testimony contained no crucial evidence and provided little to the defense, trial counsel advised Jones

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