Linnon v. Clarke
Decision Date | 30 January 2017 |
Docket Number | 1:16cv869 (TSE/IDD) |
Court | U.S. District Court — Eastern District of Virginia |
Parties | Craig Michael LINNON, Petitioner, v. Harold W. CLARKE, Respondent. |
Craig Michael Linnon, Pocahontas, VA, pro se.
Donald Eldridge Jeffrey, III, Office of The Attorney General, Richmond, VA, for Respondent.
Craig Michael Linnon, a Virginia inmate proceeding pro se , has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions in the Circuit Court of Hanover County. Respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. After receiving additional time, petitioner filed a response in which he moves for summary judgment to be entered in his favor. For the reasons that follow, plaintiff's motion must be denied, respondent's Motion to Dismiss must be granted, and the petition must be dismissed with prejudice.
The record reflects the following facts and proceedings. Petitioner is incarcerated pursuant to a final judgment of the Circuit Court of Hanover County, entered November 3, 2011. Dkt. No.1. Petitioner was convicted by a jury of (i) conspiring to take indecent liberties with a minor, in violation of Virginia Code §§ 18.2–261 and 18.2–370.1, 2 (ii) using a communications system to propose a sex act to a minor, in violation of Virginia Code § 18.2–374.3,3 and four counts of (iii) taking indecent liberties with a minor in a custodial or supervisory role, in violation of Virginia Code § 18.2–370.1. Id. Petitioner was sentenced to eleven years imprisonment. Id.
During voir dire of the venire for petitioner's trial, the prosecutor asked the jury panel if they thought "it should be legal for an adult in their 40s to have sexual contact with children," to which all of the panel members answered "no." Id. at Ex. 15. In the course of petitioner's trial, one of the prosecution's witnesses, Tyler Scott, was asked on cross examination whether the prosecutor had told Scott that the prosecutors were "waiting to see how [Scott] testified before they made any deals for [Scott]." Id. Scott answered this question "no." Id. One week after testifying in petitioner's trial, Scott entered a plea of guilty for unrelated charges and, during his plea hearing, the prosecution stated that one of Scott's charges was being amended "based upon [Scott's] cooperation in another case." Id. at Ex. 23.
Petitioner pursued a direct appeal to the Court of Appeals of Virginia, where the petition for appeal was denied. Record No. 2418–11–2. Petitioner then appealed three of his convictions of taking indecent liberties with a minor in a custodial or supervisory role to the Supreme Court of Virginia, and these convictions were affirmed. Linnon v. Commonwealth , 287 Va. 92, 752 S.E.2d 822 (2014).
The facts, as stated by the Supreme Court of Virginia on direct appeal with respect to three of petitioner's convictions of taking indecent liberties with a minor in a custodial or supervisory role, are as follows:
The facts relating to petitioner's remaining convictions that were not addressed in the Supreme Court of Virginia's opinion are as follows. In November 2009, another minor, T.D., was a student in petitioner's class. March 29, 2011 Tr. at 173. Petitioner sent a text message to T.D. in November 2009 asking if T.D. "would let [his] wife give [T.D.] a blow job." Id. at 180. T.D. answered in the affirmative and when he arrived at the school later that day petitioner took T.D. to a storage closet where petitioner's wife was waiting. Id. at 181–86. Petitioner asked T.D. if he could videotape his interaction with petitioner's wife. Id. at 186. Petitioner then left the storage closet and petitioner's wife performed oral sex on T.D. Id. at 187–88.
Before the Supreme Court of Virginia issued its decision affirming three of petitioner's convictions of taking indecent liberties with a minor in a custodial or supervisory role on direct appeal, petitioner filed a Motion to Vacate Convictions for Lack of Subject Matter jurisdiction in which he argued that his convictions should be vacated based on the Fourth Circuit's decision in MacDonald v. Moose , 710 F.3d 154 (4th Cir. 2013), cert. denied , ––– U.S. ––––, 134 S.Ct. 200, 187 L.Ed.2d 45 (2013), holding unconstitutional Virginia's anti-sodomy statute, Va. Code § 18.2–361(A). Dkt. No. 1 at Ex. 6. The Supreme Court of Virginia correctly denied this motion. Id. at Ex. 7. Contrary to petitioner's contention, the anti-sodomy statute—which, on its face, proscribed sodomy among consenting adults "without limits" and failed "remotely [to] suggest that the regulation sexual relations between adults and children had anything to do with its enactment"4 —did not provide the offenses of conviction here. Rather, petitioner's convictions were under Va. Code §§ 18.2–370.1 and 18.2–370.1 ( ), Va. Code § 18.2–374.3 ( ), and Va. Code § 18.2–370.1 ( ). Importantly. these statutes refer to conduct with respect to children , and any reference to the anti-sodomy statute describes conduct that would be illegal if directed at a child . Put another way, defendant was convicted for conduct he directed at a child , and these convictions are not unconstitutional under the Fourth Circuit's decision in MacDonald .
The subsequent history of petitioner's arguments regarding his convictions makes this point clear. After pursuing his direct appeal, petitioner filed a timely petition for a writ of habeas corpus in the Circuit Court of Hanover County on October 16, 2014. In his state habeas petition, petitioner asserted the following claims.
Case No. CL14–2657–00. By Order dated February 23, 2015, the state habeas court denied and dismissed Claims One and Two on the merits and Claim Three on procedural grounds. Id. Specifically, the state habeas court found Claim Three to be defaulted because petitioner could have, but failed to, assert this claim at trial or on direct appeal. Id. (citing Slayton v. Parrigan , 215 Va. 27, 29, 205 S.E.2d 680 (1974), cert. denied , 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975) ). Petitioner appealed from the state habeas court's order denying relief. By order dated January 5, 2016, the Supreme Court of Virginia d...
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Linnon v. Clarke
...court decided the same issue in Craig Linnon's petition for habeas corpus, reaching an identical conclusion. See Linnon v. Clarke, 232 F. Supp. 3d 850, 858 (E.D. Va. 2017) ("[Craig Linnon's] argument is based on the erroneous assumption that the prosecution gave Scott a plea deal for his te......