McLee v. Angelone

• Decision Date: 10 June 1997
• Docket Number: Action No. 2:96CV1152.
• Parties: Henderson McLEE, # 155454, Petitioner, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

967 F.Supp. 152

Henderson McLEE, # 155454, Petitioner, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent.

Action No. 2:96CV1152.

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

June 10, 1997.

Henderson McLee, Chesapeake, VA, pro se.

Wirt P. Marks, III, Attorney General's Office, Richmond, VA, for Respondent.

FINAL ORDER

CLARKE, District Judge.

This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. Report of the Magistrate Judge was filed on April 18, 1997 recommending denial of the petition. By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. The Court received petitioner's "Objections to Magistrates [sic] Recommendations" on May 1, 1997.

The Court, having examined the objections filed by the petitioner to the United States Magistrate Judge's Report and having made de novo findings with respect to the portions objected to, does hereby adopt and approve the findings and recommendations set forth in the Report of the United States Magistrate Judge filed April 18, 1997. The Court agrees with the Magistrate Judge's Report and Recommendation on the grounds stated by the Magistrate Judge, and hereby adopts the attached Report and Recommendation in its entirety.

The Court emphasizes that the Virginia Supreme Court has reached a decision on the merits pursuant to 28 U.S.C. § 2254(d) when it states, "... finding no merit as to the remaining allegations raised by petitioner, the Court is of the opinion that the writ of habeas corpus should not issue as prayed for." Virginia Supreme Court, Upon a Petition for a Writ of Habeas Corpus, Record No. 960571, Sept. 23, 1996.

It is, therefore, ORDERED that the petition be DENIED and DISMISSED and that judgment be entered in favor of the respondent.

Petitioner may appeal from the judgment entered pursuant to this Final Order by filing a written notice of appeal with the Clerk of this court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within 30 days from the date of entry of such judgment. For the reasons stated in said report, the court, pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, declines to issue a certificate of appealability.

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

MILLER, United States Magistrate Judge.

This matter was initiated by petition for writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia.

I. STATEMENT OF THE CASE

A. Background

Petitioner Henderson McLee is an inmate presently confined at the Indian Creek Correctional Center, within the custody of the Virginia Department of Corrections. He is currently serving a total sentence of twenty-nine (29) years as a result of July 29, 1987 convictions from the Circuit Court of the City of Chesapeake, and July 19, 1990 convictions from the Circuit Court for the City of Virginia Beach. On July 29, 1987, petitioner was convicted of two counts of robbery and two counts of use of a firearm, and was sentenced for eight (8) years on each of the robbery counts, and two (2) years on one count and four (4) years on the other count of the use of a firearm. On July 19, 1990, petitioner was convicted of robbery and use of a firearm and received a sentence of three (3) years and four (4) years respectively.

Petitioner, presently in the custody of the Virginia Department of Corrections at the Indian Creek Correctional Center in Chesapeake, Virginia, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 26, 1996. On January 23, 1997, respondent filed a Motion to Dismiss with accompanying Memorandum in Support.¹ Petitioner's Opposition to Motion to Dismiss was ordered filed by this court on February 25, 1997.²

B. Grounds Alleged

The petitioner now asserts in this Court that the following entitle him to relief under 28 U.S.C. § 2254:

(a) The Department of Corrections arbitrarily used non- § 53.1-151(B)(1) offenses in determining petitioner to be ineligible for parole;

(b) The Department of Corrections' arbitrary use of § 53.1-151(B)(1) violates the Equal Protection Clause;

(c) The Department of Corrections' application of § 53.1-151(B)(1) on an as applied basis is void for vagueness and violative of due process.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Petitioner filed a petition for writ of habeas corpus in the Supreme Court of Virginia on March 18, 1996, claiming ineffective assistance of counsel and unadvised guilty plea. These were the only two claims in the original petition, and they were labeled claims (A) and (B), respectively. On May 31, 1996, petitioner filed a Motion for Leave of Court to Amend Petition, adding two additional claims. The motion to amend was granted by the Supreme Court of Virginia on June 12, 1996. The two additional claims, as stated by the petitioner, were as follows:

CLAIM D: The Department of Corrections' arbitrary application of Code of Virginia § 53.1-151(B)(1) violates the Equal Protection Clause of the state and the United States Constitution.

CLAIM E: The Department of Corrections' application of § 53.1-151(B)(1) on its as applied bases is void for vagueness as violative of due process of law.

Petitioner raises an additional claim, which he refers to as claim (c), in his Opposition to Motion to Dismiss, but this claim was never stated in his petition or amended petition. The petition was dismissed by the Supreme Court on September 23, 1996. Accordingly, two of Petitioner's claims, claims (b) and (c), have been exhausted and are ripe for federal review on the merits.

Claim (a)

Petitioner's first claim, the alleged arbitrary use of non- § 53.1-151(B)(1) offenses in determining petitioner's parole ineligibility, has not been properly exhausted. Petitioner raised the claim in his reply briefs to his state habeas petition, but the claim was not included in the original or amended petitions, and was not addressed by either the Department of Corrections or the Virginia Supreme Court. Accordingly, claim (a) is not exhausted.

It is the State which bears the primary responsibility for administering its system of criminal justice and for correcting any deprivations of constitutional rights that might occur within that system. For this reason, the exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1).³ A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). Full and fair presentation of claims to the state court requires "full factual development" of the claims in that forum. Keeney v. Tamayo-Reyes, 504 U.S. 1, 8, 112 S.Ct. 1715, 1719, 118 L.Ed.2d 318 (1992).

Exhaustion may be accomplished either on direct appeal or in post-conviction proceedings. See 28 U.S.C. § 2254(b) and (c). Such exhaustion shall not be deemed to have occurred if the applicant "has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally defaulted under state law if the petitioner attempted to raise it at this juncture. George v. Angelone, CA-95-1-3, (4th Cir. November 14, 1996); Gray v. Netherland, ___ U.S. ___, ___, 116 S.Ct. 2074, 2080, 135 L.Ed.2d 457 (1996).

Under Virginia law, "a petitioner is barred from raising any claim in a successive petition if the facts as to that claim were either known `or available' to petitioner at the time of his original petition." Hoke v. Netherland, 92 F.3d 1350, 1354 n. 1 (4th Cir.1996); Barnes v. Thompson, 58 F.3d 971, 974 (4th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 435, 133 L.Ed.2d 350 (1995); see Waye v. Murray, 884 F.2d 765, 766 (4th Cir.) (per curiam), cert. denied, 492 U.S. 936, 110 S.Ct. 29, 106 L.Ed.2d 634 (1989); Va.Code Ann. § 8.01-654(B)(2) (Michie Supp.1996).

In this case, the facts as to petitioner's claim (a) were known and available to the petitioner at the time he filed his original, and amended, habeas petition with the Virginia Supreme Court. Accordingly, claim (a) may be treated as exhausted since it is clear that the claim would be procedurally defaulted under Virginia law if the petitioner attempted to raise it at this juncture.

Claims (b) and (c)

Claims (b) and (c) have been properly exhausted in state court. The Virginia Supreme Court, in addressing the claims raised in the state petition, ruled as follows:

Applying the rule in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), to petitioner's allegation (b) (as identified in the petition for writ of habeas corpus), and finding no merit as to the remaining allegations raised by petitioner, the Court is of [the] opinion that the writ of habeas corpus should not issue as prayed for.

Virginia Supreme Court, Upon a Petition for a Writ of Habeas Corpus, Record No. 960571, Sept. 23, 1996 (emphasis added).

As petitioner filed his federal habeas petition after the effective date, the standard of review in this case is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, ...