Orlina v. Clarke
Decision Date | 17 January 2023 |
Docket Number | 22cv417 (CMH/IDD) |
Parties | Christopher Santos Orlina, Petitioner, v. Harold W. Clarke, Respondent. |
Court | U.S. District Court — Eastern District of Virginia |
Christopher Santos Orlina (“Petitioner” or “Orlina”), a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his 2019 in the Circuit Court of the City of Virginia Beach, Virginia conviction for felony object sexual penetration, in violation of Code § 18.2-67.2. The Respondent filed a Rule 5 Answer and a Motion to Dismiss with supporting briefs and exhibits. [Dkt. Nos. 11-13]. Petitioner was advised of his right to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K) to the motion to dismiss [Dkt. No. 11], and he filed a response. [Dkt. Nos 17-18]. Accordingly, this matter is now ripe for disposition. For the reasons that follow, the respondent's Motion to Dismiss must be granted and the petition will be dismissed with prejudice.
On August 1,2018, Petitioner was convicted in the circuit court of felony object sexual penetration, in violation of Code § 18.2-67.2. (Commonwealth v. Orlina, Case No. CR17-3282) (CCT at 89). By Order dated January 15, 2019, the court sentenced Orlina to 30 years in prison with all but 12 years suspended. (Id. at 125-26).
Orlina, by counsel, filed a petition for appeal in the Virginia Court of Appeals, alleging the evidence was insufficient to establish Orlina used “the necessary force required under the statute to accomplish the act.” (Orlina v. Commonwealth, Record No. 0308-19-1) (CAV at 17).
The Court found the alleged error was barred under Va. S.Ct. R. 5A:18 because it was not raised at trial and that the ends of justice exception did not apply because the record established that force was used. The court summarized the evidence as follows:
The court denied the petition by orders dated September 25, 2019 and February 12, 2020. (CAV at 47-49). Orlina's subsequent petition for appeal to the Supreme Court of Virginia, in which he raised the same alleged error and that the Court of Appeals of Virginia erred in not applying the ends of justice exception, was refused on December 17, 2020. (Orlina v. Commonwealth, Record No. 200382).
On March 22, 2021, Orlina, proceeding pro se, filed a petition for a writ of habeas corpus in the circuit court alleging he had been denied his right to the effective assistance of counsel, conviction. Within that petition, Orlina raised the following claims:
(Orlina v. Clarke, Case No. CL21-1411). (Hab. at 7-19). The respondent filed a motion to dismiss on May 25, 2021 (Id. at 33-609), and Petitioner filed a motion for judgment. (Id. at 61012). The respondent filed a proposed order on June 28,2021.[1] On July 13,2021, the circuit court dismissed Orlina's habeas petition. (Id. at 616-40). Over three months later, on or about October 28, 2021, Orlina, acting pro se, filed a Motion for Delayed Appeal and a Notice of Appeal in the circuit court, which the circuit court denied on November 16, 2021 for lack of jurisdiction.
On or about December 15, 2021, Orlina, proceeding pro se, filed a petition for appeal in the Supreme Court of Virginia. (Orlina v. Clarke, Record No. 211181). By order dated March 10, 2022, the Supreme Court of Virginia dismissed Orlina's petition for appeal because he had failed to timely file a notice of appeal in the circuit court pursuant to Rule 5:9(a)[2] and failed to timely file a petition for appeal pursuant to Rule 5:17(a)(1).[3] (VSCT at 110).
On or about April 15, 2022, Orlina, proceeding pro se, filed his current habeas petition, wherein he raises the following claims of ineffective assistance of counsel:
A. Mr. Orlina's trial counsel's performance fell below an objective standard of reasonableness such that his deficient performance prejudiced the defense because he failed to provide Tagalog translator for the first trial despite repeated requests to do so and thereby failed to allow the trial court to understand Mr. Orlina, including race, language, culture, and heritage of Mr. Orlina, the only non-native bom U.S. citizen and non-white person in the courtroom during his trial other than the sheriffs deputy. [Dkt. No. 1 at 5].
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