Khavkin v. Clarke

• Decision Date: 24 February 2021
• Docket Number: Civil Action No. 3:16CV576
• Parties: DMITRIY KHAVKIN, Petitioner, v. HAROLD CLARKE, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

DMITRIY KHAVKIN, Petitioner, v. HAROLD CLARKE, Respondent.

Civil Action No. 3:16CV576

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

February 24, 2021

MEMORANDUM OPINION

Dmitriy Khavkin, a Virginia prisoner proceeding with counsel, brings this SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS under 28 U.S.C. § 2254 ("SAP" ECF No. 31).¹ Respondent has filed a MOTION TO DISMISS AND RULE 5 ANSWER ("Motion to Dismiss," ECF No. 32). An evidentiary hearing was held and the Motion to Dismiss has been fully briefed. For the reasons set forth below, the Motion to Dismiss (ECF No. 32) will be granted and the SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS under 28 U.S.C. § 2254 (ECF No. 31) will be denied.

I. BACKGROUND

The Court has issued three previous opinions respecting this petition. This Memorandum Opinion will not recount the procedural issues covered extensively in those opinions. Following a guilty plea in the Circuit Court for Brunswick County, Virginia ("Circuit Court"), Khavkin was convicted of second-degree murder, assault and battery, and attempted robbery. (ECF No. 34-3, at 23.) The Circuit Court sentenced Khavkin to the bargained for sentence of twenty-four years and two months of imprisonment. (ECF No. 34-1, at 1-2.)

In the SAP, Khavkin presented the following claims for relief:

Claim I: "Petitioner was denied the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, because his counsel had a conflict of interest, which neither defense counsel, nor the prosecutor brought to the Court's attention, and which caused his counsel to compel him to waive his right to trial and plead guilty." (ECF No. 31, at 5) (emphasis added).

Claim II: "Petitioner was denied the effective assistance of counsel because his conflicted counsel coerced him into a guilty plea and provided him with erroneous advice as to the consequences of a guilty plea, all in violation of the Sixth and Fourteenth Amendments to the United States Constitution." (Id. at 10) (emphasis added)

Claim III: "Petitioner was denied the effective assistance of counsel because his counsel provided erroneous advice as to the consequences of a guilty plea, in violation of the Sixth and Fourteenth Amendments to the United States Constitution." (Id. at 12) (emphasis added)

Claim I thus was based on an alleged coerced guilty plea prompted by an alleged conflict of interest on the part of counsel. By Memorandum Opinion and Order entered on April 12, 2019, the Court resolved much of the SAP. To begin, Claim II was dismissed as defaulted and barred from review here. (ECF No. 39, at 20-23.) Also, the Court concluded that: "Claim III is in two parts: (1) a denial of the effective assistance because counsel allegedly coerced a guilty plea (apparently because of the conflict of interest); and (2) counsel allegedly provided erroneous advice about the consequences of a guilty plea (apparently that the guilty plea would activate a suspended sentence)." (ECF No. 39, at 32.) One part was denominated as the "coercion" component; the other was denominated as the "consequences" component. The "consequences" component of Claim III was dismissed because it was barred by the validly entered Plea Agreement. (Id. at 37.) That left for resolution, Claim I and part of Claim III, both based on coercion.

Khavkin's allegations in Claim I and in what remains of Claim III are one in the same. Khavkin alleged that trial counsel had a conflict of interest and that, as a result, counsel coerced Khavkin into pleading guilty. For the reasons set forth below, the Court finds that Khavkin has failed to satisfy his burden to prove that counsel's potential conflict ripened into an actual conflict that adversely affected his counsel's performance. Inthe alternative, the Court finds that Khavkin also waived any potential conflict. Accordingly, the Motion to Dismiss will be granted with respect to Claims I and III, and the SAP will be denied.

II. STANDARD OF REVIEW AND BURDEN OF PROOF

A petitioner collaterally attacking his conviction in state court bears the burden to prove that his custody under a state-court judgment violates the Constitution or laws of the United States. 28 U.S.C. § 2254(a)(1). The burden of proving the grounds for collateral attack is by a preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967) (citing Bates v. Meadow, 358 F.2d 674, 675 (6th Cir. 1966)). An evidentiary hearing is an instrument to test the truth of facts already alleged in the habeas petition." Jones v. Polk, 401 F.3d 257, 269 (4th Cir. 2005) (citations omitted).

III. SUMMARY OF FACTS REGARDING THE ALLEGED CONFLICT

A. Initial Criminal Proceedings

A grand jury in the Circuit Court for the County of Brunswick, Virginia ("Circuit Court") charged Khavkin in a five-count Indictment with one count of murder in the first degree in the commission of, or attempt to commit robbery ("first-degree murder"), one count of make/possess unauthorized weapon capable of death/injury, two counts of attempted robbery, and one count ofmalicious wounding. Indictment at 1-2, Commonwealth v. Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct. filed Mar. 28, 2013). The charges against Khavkin were based on the following events:

On June 7, 2012, Defendant was an inmate in Lawrenceville Correctional Center. Defendant was assigned to 30 building, 31 pod. Defendant entered the 32 pod with co-defendant Kayvon Crews. 32 pod has the designation of "honor pod." To qualify for honor pod, an inmate must be charge free for a minimum of one year. 32 pod was an unauthorized area for both Defendant and co-defendant Crews.

Once in 32 pod, Defendant and Crews entered cell #205 and confronted an inmate with the intent to rob the inmate. The cellmate of the prospective robbery victim along with another inmate, came into cell #205 and dissuaded Defendant and Crews from robbing this initial prospective victim. Defendant was in possession of a homemade knife. After talking with other inmates in 32 pod, Defendant and Crews gained entry to cell 120, where cellmates Dwayne McKoy and William Myers were sleeping. Defendant and Crews confronted inmates McKoy and Myers. Both McKoy and Myers stood up beside their bunks and began to resist the attempt to rob them. Victim McKoy fought with Defendant and Victim Myers fought with co-defendant Crews. Defendant produced the homemade knife, which was the only weapon used during the assaults in the cell. Co-defendant Crews beat Victim Myers with his fists until Myers fell down and was dazed if not unconscious. Defendant called for the assistance of co-defendant Crews while Defendant was fighting with Victim McKoy. Co-defendant Crews pulled Victim McKoy away from Defendant. As this was done, Defendant stabbed McKoy on the left side of McKoy's chest with the homemade knife, and McKoy's body lurched to the left. At some point during this confrontation between Defendant and McKoy, McKoy had his hands around Defendant's neck. Defendant's neck was scratched and Defendant's DNA was found beneath McKoy's fingernails. After McKoy and Myers were both injured, Defendant and Co-defendant Crews sought to leave cell 120. Crews stopped to take the television of the Victims and Defendant told him to leave it and that they needed to get out of the pod.

After the defendants left cell 120, Victim Myers came out of the cell to try to alert an officer to the injury of McKoy. In doing so, Myers again came into contact with co-defendant Crews. Myers hit Crews with a "hot pot" and Crews beat Myers again until Myers fell to the ground. During this time, Defendant went to the upper tier of 32 pod, tried to hide in the cell of another inmate, and slid the homemade knife underneath the utility room door. The knife was later found during a search by the facility security staff. The knife was found to contain McKoy's DNA on the blade. The knife was described as a metal, ten inch long knife, honed on the edges and sharp on the point. It is believed that the knife was made from a part off of a floor buffer used in the facility.

Co-defendant Crews was taken into custody in 32 pod after his final assault on victim Myers. Myers identified a white male from 31 pod as the other assailant. Security staff conducted a search of all white male inmates in 31 pod and found Khavkin with scratches on his neck and torso. Defendant Khavkin was taken to segregation where he claimed that the scratches were a result of a basketball game and /or horseplaying. When Defendant discovered that Victim McKoy had died, Khavkin reacted by crying, saying "Oh my God, Oh my God" and "I didn't mean to do it."

Victim McKoy suffered a fatal stab wound to the chest which went into and almost through his heart. McKoy also had a stab wound to one temple, bruises to the other temple and cuts on the inside of his lips. Victim Myers had a broken nose, a laceration to his lip, bruising and swelling of his face. Myers was taken by medflight to MCV where he stayed for two days.

McKoy's DNA was found on clothing items worn by Crews and on pants and boots found within Defendant Khavkin's personal property.

(ECF No. 34-3, at 24-25 (emphasis added).)

In September 2012, Khavkin's family hired Joseph D. Morrisey as defense counsel because he was recommended to Khavkin by another inmate. (ECF No. 60, at 19-20; Evid. Hrg. Resp't's Ex. 1, at 1.) In May 2013, Morrissey engaged another lawyer, James T. Maloney,to assist in Khavkin's defense. (ECF No. 60, at 80; Evid. Hrg. Ex. 1, at 12-13.)² On May 22, 2013, Morrisey sent a letter to the Clerk of the Circuit Court, with a copy to both Marina Khavkin, Khavkin's sister, and to Khavkin himself, notifying the Circuit Court that, "Attorney James T. Maloney will be assisting me in the case. I would appreciate your noting both of as counsel of record for Mr. Khavkin in these matters." (Evid. Hrg. Ex. 9, at 132.) Maloney indicated his association...