Moody v. Director, 1:14cv1581 (GBL/TCB)

• Decision Date: 03 March 2016
• Docket Number: 1:14cv1581 (GBL/TCB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Marvin J. Moody, Petitioner, v. Director, Virginia Dep't of Corrections, Respondent.

Marvin J. Moody, Petitioner, v. Director, Virginia Dep't of Corrections, Respondent.

1:14cv1581 (GBL/TCB)

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

March 3, 2016

MEMORANDUM OPINION

This Matter comes before the Court on respondent's Motion to Dismiss this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed pro se by Marvin J. Moody, a Virginia inmate. Petitioner challenges the constitutionality of convictions of statutory burglary and grand larceny entered on a jury verdict in the Circuit Court for the City of Richmond. After respondent moved to dismiss the petition, Moody was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and he filed a Brief in Opposition to Respondent's Brief. Dkt. 16. After careful consideration, for the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice. Also pending are motions by the petitioner to strike respondent's procedural defenses and for an evidentiary hearing, both of which will be denied.

I. Background

On June 15, 2012, following a jury trial, petitioner was convicted of one count each of statutory burglary and grand larceny. Case Nos. CR11-F-5781 and -57814. A second statutory burglary charge was dismissed after the jury could not reach a unanimous verdict. Pursuant to the jury's recommendation, the court sentenced petitioner to a total of twelve (12) years incarceration. Resp. Ex. 6, Sub-Ex. 1.¹ The facts underlying the convictions were described by the Virginia Court of Appeals as follow:

[T]he evidence proved that several items were taken from a residence in Richmond in March of 2010. The items, including the victim's passport, checkbook, bank records, jewelry, and mail, were found in appellant's motel room and had a value of more than $200. Various papers bearing appellant's name were found in the motel room. The only key to the motel room was found in appellant's pocket.

Appellant, a convicted felon, denied taking the items, claiming he had shared the motel room with another man. No documents or personal effects bearing the other man's name were found in the motel room.

Moody v. Commonwealth, R. No. 1211-12-2 (Va. Ct. App. Feb. 5, 2013), slip op. at 5-6; Resp. Ex. 6, Sub-Ex. 2.

Moody prosecuted a direct appeal, raising claims that the trial court erred by denying his motion to dismiss his court-appointed counsel and that the evidence was insufficient to sustain the grand larceny conviction. The petition for appeal was denied on Feb. 5, 2013, id., and Moody took no direct appeal to the Supreme Court of Virginia.

On April 3, 2012, before the convictions had become final, Moody filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia. Before the respondent was directed to respond, petitioner requested leave to withdraw the petition, and the Court accordingly dismissed the petition on August 6, 2012. Resp. Ex. 5.

On February 28, 2013, petitioner filed a second application for a state writ of habeas corpus, raising numerous claims and subclaims that are accurately reflected in the respondent'sBrief in Support of Motion to Dismiss. Resp. Br. at 2-6. The Supreme Court of Virginia dismissed the petition on December 3, 2013. Moody v. Dir., Dep't of Corrections, R. No. 130372 (Va. Dec. 3, 2013); Resp. Ex. 2. Petitioner's motion for rehearing of that result was denied on March 6, 2014. Id.

Petitioner then turned to the federal forum and timely filed the instant application for relief pursuant to 28 U.S.C.§ 2254 on November 2, 2014,² largely reiterating the claims he raised before the Supreme Court of Virginia, as follow:

1. He was denied due process when the name of the sole testifying witness on the indictment was amended outside his presence and the presence of the issuing court.

a. Trial counsel was ineffective for failing to move for continuance based on the amended indictment, to object to the amendment, to review the amended indictment, or to subpoena the new witness stated on the amended indictment.

b. Appellate counsel failed to raise the issue on appeal.

2. He was denied due process when the trial court failed to remove counsel and forced him to proceed to trial despite having a conflict with counsel.

3. He was denied due process when his speedy trial rights were violated. Trial counsel provided ineffective assistance by:

a. Trial counsel failed to follow the court rule that motions must be filed seven (7) days prior to trial.

b. Appellate counsel failed to raise this issue on appeal.

4. He was denied due process because his jury was not impartial.a. Trial counsel failed to object, to ask for a mistrial, or to ask for voir dire.

b. Appellate counsel failed to raise this issue on appeal.

5. He was denied due process when new witnesses were added and called to testify during trial.

a. Trial counsel failed to object to the addition of new witnesses.

b. Appellate counsel failed to raise the issue on appeal.

6. He was denied due process when the prosecution's main witness violated the court's sequestration order.

a. Trial counsel failed to object.

b. Appellate counsel failed to raise the issue on appeal.

7. He was denied due process when the prosecution failed to present evidence of his prior "confessions" and questioned him regarding statements he made to the police after he was arrested.

a. Trial counsel failed to object or to provide any evidence of the hidden confessions.

b. Trial counsel failed to object to the prosecutor's references to petitioner's post-arrest story at trial.

c. Appellate counsel failed to raise these issues on appeal.

8. He was denied due process when there was inappropriate contact with the jury during deliberations.

a. Trial counsel failed to object to the inappropriate contact and failed to poll the jury.

b. Appellate counsel failed to raise the issue on appeal.

9. He was denied due process when there was insufficient evidence presented to sustain either conviction.a. Trial counsel failed to move to strike the evidence at the close of argument and failed to object to the insufficiency of the evidence as to both crimes.

b. Appellate counsel failed to raise the issue of the insufficiency of the evidence on the burglary charge on appeal.

10. He was denied due process when the jury did not receive jury instruction number 10 and were not told of the missing instruction until after it had reached a verdict, and when the prosecutors failed to give defense counsel the jury instruction to review.

a. Trial counsel failed to inspect the jury instructions and failed to give favorable jury instructions, because all of his proposed instructions were denied or withdrawn.

b. Appellate counsel failed to raise the issue on appeal.

11. He was denied due process when prosecutors made discriminatory statements during the sentencing phase.

a. Trial counsel failed to object to the statements.

b. Appellate counsel failed to raise the issue on appeal.

12. He was denied due process when the court gave an improper response to the jury's question during the sentencing phase.

a. Trial counsel failed to object.

b. Appellate counsel failed to raise the issue on appeal.

13. He was denied due process by the use of illegally-obtained evidence.

a. Trial counsel failed to object.

b. Appellate counsel failed to raise the issue on appeal.

14. He was denied due process by pre-indictment delay.

a. Trial counsel failed to object or to move to dismiss the indictment.

b. Appellate counsel failed to raise the issue on appeal.

15. Appellate counsel failed to see or to consult with petitioner about his right to appeal, which caused a timely motion to set aside the verdict to denied because counsel filed a notice of appeal without petitioner's knowledge.

II. Exhaustion and Procedural Bar

Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. 28 U.S.C. § 2254(b); Granberry v Greer, 481 U.S. 129 (1987); Rose v. Lundy, 455 U.S. 509 (1982). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A federal habeas claim is exhausted only when both the same legal argument and the same supporting facts previously were presented to and ruled on by the highest state court. Anderson v. Harless, 459 U.S. 4, 6-7 (1982); see Pruett v. Thompson, 771 F. Supp. 1428, 1436 (E.D. Va. 1991), aff'd, 996 F.2d 1560 (4th Cir. 1993) (exhaustion is satisfied only where the "essential legal theories and factual allegations advanced in federal court ... [are] the same as those advanced at least once to the highest state court."). Thus, a petitioner convicted in Virginia first must have presented the same factual and legal claims raised in his federal habeas corpus application to the Supreme Court of Virginia on direct appeal or in a state habeas corpus petition. See Duncan v. Henry, 513 U.S. 364 (1995).

Claims 5(a), 10, 13(a), and 15

The respondent acknowledges that all of petitioner's present arguments were exhausted inthe state forum with the exception of four: claims 5(a) (counsel's failure to object to new witnesses); 10 (missing jury instruction); 13(a) (counsel's failure to object to illegally-obtained evidence); and 15 (appellate counsel's failure to consult with petitioner regarding his appellate rights). Although petitioner did not properly present these claims to the Supreme Court of Virginia, they nonetheless are treated as exhausted because the petitioner is now precluded from raising them in state court. See Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) ("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...