Moone v. Clarke

• Decision Date: 02 March 2023
• Docket Number: Civil Action 2:22cv135
• Parties: NATHANIEL HOWARD MOONE (No. 1190456), Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

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NATHANIEL HOWARD MOONE (No. 1190456), Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

Civil Action No. 2:22cv135

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

March 2, 2023

REPORT AND RECOMMENDATION

DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE

Petitioner Nathaniel Howard Moone (“Petitioner” or “Moone”) filed this federal habeas petition (the “Petition”) (ECF No. 5) under 28 U.S.C. § 2254, and the Petition was referred to the undersigned pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C) and Rule 72(b) of the Federal Rules of Civil Procedure. Respondent moved to dismiss the Petition, arguing that Moone had failed to exhaust his state remedies and that his claims were procedurally defaulted. Resp't Br. Supp. Mot. Dismiss (“Resp't Br.”) (ECF No. 17). Along with the motion, Respondent provided the notice to pro se parties required by Local Rule 7(K) and the Fourth Circuit's decision in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). (ECF No. 18). Petitioner replied. Resp't Mot. Dismiss (“Reply”) (ECF No. 22). Because the Petition contains habeas claims that are procedurally defaulted, and which default is not otherwise excused, this Report recommends that it be dismissed without prejudice.

I. FACTUAL AND PROCEDURAL HISTORY

On June 8, 2016, Petitioner was convicted in the Circuit Court for Arlington County of robbery and attempted robbery. Resp't Br. Ex. A (ECF No. 17-1, at 3, 6). He was sentenced to a total of 15 years on the two counts, four and a half years on the attempted robbery and 10 and a

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half years on the completed robbery. Id.; Am. Pet. (ECF No. 5, at 1).

A. State Court Proceedings

1. Direct Appeal

Moone appealed his conviction to the Court of Appeals of Virginia. Pet. for Appeal, Moone v. Commonwealth, No. 1750-16-4 (Va. Ct. App. Feb. 3, 2017), Resp't Br. Ex. B (ECF No. 17-2). In his appeal, Moone argued that the evidence was insufficient to prove the robbery was accomplished by force or intimidation. Id. In a per curiam opinion, the court denied the appeal as to the completed robbery but allowed an appeal as to the attempt. Moone v. Commonwealth, No. 1750-16-4 (Va. Ct. App., April 21, 2017), Resp't Br. Ex. C (ECF No. 17-3, at 1-3). Thereafter, a three-judge panel rejected Moone's argument regarding sufficiency of the evidence to prove he accomplished the robbery by force or intimidation. Moone v. Commonwealth, No. 1750-16-4 (Va. Ct. App. Nov. 14, 2017), Resp't Br. Ex. D (ECF No. 17-4). The court's unpublished opinion noted that the only argument presented at trial on a motion to strike the evidence was that the evidence did not prove Moone was the perpetrator. Id. As a result, the Court of Appeals found Moone waived the force and intimidation argument by failing to preserve it at trial. Id. The Court of Appeals, therefore, affirmed his conviction on the attempted robbery as well. Id. At trial, and on appeal to the Court of Appeals Moone was represented by Attorney Harry Dennis.

2. State Habeas Petitions

Following the Court of Appeals' decision, Moone missed the deadline to appeal his original conviction to the Supreme Court of Virginia, and as a result his first state petition for a writ of habeas corpus successfully sought a delayed appeal. Moone v. Clarke, No. 171711 (Va. Aug. 2, 2018), Resp't Br. Ex. E (ECF No. 17-5, at 39-40). Following the grant of a delayed

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appeal, the trial court appointed Attorney Rachel Collins to represent Moone in his Supreme Court petition for appeal which was filed on December 3, 2018. Pet. for Appeal, Moone v. Commonwealth, No. 181558 (Va. Dec. 3,2018), Resp't Br. Ex. F (ECF No. 17-6, at 16-28). The petition argued that the Court of Appeals erred by not invoking the ends-of-justice exception to consider Moone's evidentiary argument on the force and intimidation element of his robbery conviction. Id. The Supreme Court refused the petition, as well as a later request for rehearing. Moone v. Commonwealth, No. 181558 (Va. June 20, 2019), Resp't Br. Ex. F (ECF No. 17-6, at 35); Moone v. Commonwealth, No. 181558 (Va. Oct. 11, 2019), Resp't Br. Ex. F (ECF No. 176, at 48).

Moone thereafter filed a second state petition for writ of habeas corpus with the Supreme Court of Virginia in which the only ground originally asserted was that his counsel was ineffective for failing to notify him of the Supreme Court's denial of rehearing. State Habeas Pet., Moone v. Clarke, No. 200210 (Va. Feb. 7, 2020), Resp't Br. Ex. G (ECF No. 17-7, at 5). Moone also submitted additional challenges arguing ineffective assistance in a supplemental brief, which the court characterized as a reply. Br. Reply Resp't Pet. for Denial, Moone v. Clarke, No. 200210 (Va. May 21, 2020), Resp't Br. Ex. G (ECF No. 17-7, at 39-50). In the reply brief, Moone attempted to raise ineffectiveness claims of the type raised in this federal petition. Id. But the Supreme Court eventually denied and dismissed Moone's petition without addressing the ineffectiveness claims raised in the reply brief. Moone v. Clarke, No. 200210 (Va. Jan. 4, 2021), Resp't Br. Ex. G (ECF No. 17-7, at 109-10) (noting that Moone had not been granted leave to amend his original petition which did not include the additional claims).

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B. Current Federal Habeas Petition

In this federal petition filed March 21, 2022,^[1] Moone challenges his convictions by asserting claims related to the ineffective assistance of counsel, and violations of due process quoted from his Reply as follows:

I. Appointed counsel “Rachell Collins, herein Ms Collins performed deficiently with failing to raise the Strickland issue and the Virginia Supreme Court truncated the Strickland issue with concern to the second prong with it's denial of Moone's petition.

II. Under well established Rule of the Supreme Court of the United States, Moone was denied Due Process of Rule 2:404(b) to prove his identity of two separate crimes of robbery in one trial.

III. The omitting of identity the sole issue of trial from Moone's appeal and the failure to move for severance was an error or reflected a deliberate attomy and appellant strategy as to procudural default causing a misscarriage of justice.

Reply (ECF No. 22, at 3-4). As near as the court can discern them, Moone's Claim I relates to his assertion that his appellate attorney, Collins, failed to argue the appropriate grounds on appeal, and that his trial counsel, Dennis, failed to present the force and intimidation issue...