Jones v. Sussex I State Prison

• Decision Date: 15 January 2010
• Docket Number: No. 07-6705.,07-6705.
• Citation: 591 F.3d 707
• Parties: Orlando Brad JONES, Petitioner-Appellant, v. SUSSEX I STATE PRISON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

591 F.3d 707

Orlando Brad JONES, Petitioner-Appellant, v. SUSSEX I STATE PRISON, Respondent-Appellee.

No. 07-6705.

United States Court of Appeals, Fourth Circuit.

Argued: December 2, 2009.

Decided: January 15, 2010.

ARGUED: John Granville Douglass, University of Richmond, School of Law, Richmond, Virginia, for Appellant. Steven Andrew Witmer, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF: William C. Mims, Attorney General, Karen Misbach, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge MICHAEL and Judge KING joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Orlando Brad Jones petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006), alleging that the Commonwealth of Virginia violated his Fifth Amendment rights by punishing him twice for the same offense. The deferential review of state court judgments mandated by the Antiterrorism and Effective Death Penalty Act ("AEDPA") requires us to affirm the district court's denial of habeas relief.

I.

To better understand this case's procedural history and the parties' arguments, we must briefly set forth the nature of Jones's atypical constitutional claim. He contends that the Commonwealth violated his rights under the Double Jeopardy Clause of the Fifth Amendment not by subjecting him to multiple prosecutions for the same offense but by subjecting him to "multiple punishments for the same offense." See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (emphasis added).

When the government convicts a defendant for two crimes based on identical conduct, the Fifth Amendment requires that the sentencing court "determine whether the legislature ... intended that each violation be a separate offense." Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). If the legislature did intend each violation to be a separate offense, then the Double Jeopardy Clause provides no protection against multiple punishments. But if the legislature did not intend to punish the same conduct twice, the Double Jeopardy Clause bars two or more punishments for the same offense, and thus "prevent[s] the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

"When the claim is made in relation to state offenses, federal courts are essentially bound by state court interpretations of state legislative intent on this score." Thomas v. Warden, 683 F.2d 83, 85 (4th Cir.1982). That is because, when the charged offenses violate state law, the double jeopardy analysis hinges entirely on the state-law question of what quantum of punishment the state legislature intended. See Sanderson v. Rice, 777 F.2d 902, 904 (4th Cir.1985) ("The Supreme Court has placed the state legislative definition of the crime at the heart of double jeopardy analysis."). Once a state court has answered that state-law question, "[t]here is no separate federal constitutional standard requiring that certain actions be defined as single or as multiple crimes." Id.

In Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985), a double jeopardy case, the Supreme Court of Virginia considered the intent of the Virginia General Assembly when a defendant is "accused of abduction by detention and another crime involving restraint of the victim, both growing out of a continuing course of conduct." Id. at 713. The Brown court held that the General Assembly intended to subject such a defendant to "separate penalties for separate offenses only when the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime." Id. at 713-14. This rule has since come to be known as the "incidental detention doctrine." See, e.g., Walker v. Commonwealth, 272 Va. 511, 636 S.E.2d 476, 478 (2006).

With this understanding of the double jeopardy and state law principles at issue in this case, we turn to the facts.

II.

On December 12, 2001, Jones donned a mask and, together with his cousin, robbed at gunpoint a McDonald's restaurant in Hampton, Virginia. The Commonwealth charged Jones with robbery, Va.Code Ann. § 18.2-58 (2009); abduction, id. § 18.2-48; wearing a mask in public, id. § 18.2-422; and two counts of using a firearm while committing a felony, id. § 18.2-53.1, one each for the robbery and abduction. The abduction-related charges stemmed from evidence that during the robbery—which lasted just ninety seconds—Jones directed McDonald's floor supervisor Anthony Williams to travel about twenty feet from the front cash register to the back cash register to retrieve money stored there. Jones pled not guilty to all five charges.

At the conclusion of the Commonwealth's case, defense counsel moved to dismiss the two abduction charges on the ground that "the abduction must be separate and apart from and not merely incidental to the restraint employed in the commission of the [robbery]." The trial court denied the motion on the merits, finding that two distinct robberies had taken place, one for each cash register. The trial court reasoned that, because the Commonwealth charged Jones only with the first robbery, and the abduction charge was incidental only to the second robbery, the Commonwealth did not violate double jeopardy principles because the abduction was not incidental to the charged robbery.

On September 24, 2002, the jury convicted Jones on all counts. The trial judge, following the jury's recommendation, sentenced Jones to thirty-four years in prison: five years for the robbery, three for using a firearm during the robbery, one for wearing a mask in public, twenty for the abduction, and five for using a firearm during the abduction. Thus, the abduction-related convictions accounted for twenty-five years of Jones's thirty-four year sentence.

Jones timely filed petitions for appeal, first in the Court of Appeals of Virginia and then in the Supreme Court of Virginia. In his supporting (identical) briefs to each court, Jones asserted the following as an assignment of error:

The Trial Court erred in concluding that the abduction (and related firearm charge) could be sustained without a scintilla of evidence in the record to show intimidation or force in the movement of the victim from one cash register to the other cash register in the course of this robbery.

In the argument sections for this claim, Jones cited to Brown and described the claim in terms very similar to those used in that case: "The alleged abduction is not the type of case that the legislature envisioned as a separate offense from a crime such as this robbery, for it is intrinsic in the very act of this robbery." Compare Brown, 337 S.E.2d at 713 ("[I]n the enactment of the abduction statute the General Assembly did not intend to make the kind of restraint which is an intrinsic element of ... robbery ... a criminal act, punishable as a separate offense."). Jones did not explicitly refer to the Double Jeopardy Clause or the Constitution of the United States.

On July 16, 2003, the Court of Appeals of Virginia denied Jones's appeal without mentioning double jeopardy, the Constitution, or Brown. Instead, the court focused on the sufficiency of the evidence supporting the abduction charges. On December 2, 2003, the Supreme Court of Virginia summarily denied Jones's petition for appeal.

Jones, now proceeding pro se, filed with the state Supreme Court a petition for state habeas relief. This time, he explicitly alleged that his "conviction is in contravention of the Double Jeopardy Clause in the Fifth Amendment to the Constitution of the United States." The court denied Jones's state habeas petition, finding his double jeopardy claim procedurally barred under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974), because Jones could have raised his double jeopardy claim on direct appeal, but assertedly did not do so.

On March 19, 2004, Jones—still pro se— timely filed this § 2254 petition in the United States District Court for the Eastern District of Virginia, raising several grounds for relief. The district court granted the Commonwealth's motion to dismiss all but Jones's double jeopardy claim, and appointed counsel to represent Jones in the proceedings. In its subsequent briefing as to that claim, the Commonwealth argued that the claim was (1) procedurally defaulted because it was not properly presented to and thus exhausted before the state courts; (2) not cognizable on federal habeas because it involved only a state-law question of "state legislative intent"; and in any event (3) meritless under Virginia's incidental detention doctrine. Although the Commonwealth did not cite to the deferential AEDPA standard of review in its brief to the district court, it drew upon that standard, arguing that, should the district court reach the merits of Jones's claim, "Jones would bear the burden of showing not merely that the state court's application of law was wrong, but that it was unreasonably wrong."

On March 30, 2007, the district court denied Jones's petition. The court refused to find Jones's double jeopardy claim procedurally barred, but held that punishing Jones for both robbery and abduction did not violate double jeopardy under Virginia's incidental detention doctrine. The court did not mention the AEDPA standard of review.

The district court subsequently granted Jones a certificate of appealability as to this issue, and Jones timely noted this appeal. We review a district court's denial of a § 2254 habeas petition "de novo, applying the same standard that the district court was required to apply." Longworth v. Ozmint, 377 F.3d 437, 443 (4th Cir.2004). In opposing...