Orlina v. Clarke

Decision Date17 January 2023
Docket Number22cv417 (CMH/IDD)
PartiesChristopher Santos Orlina, Petitioner, v. Harold W. Clarke, Respondent.
CourtU.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.

I. Procedural History

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:

In 2016, K.K. started receiving massage therapy from appellant to treat a stress related jaw disorder. For each massage, she undressed except for her underwear and lay down on a table under a “two-blanket system.” In August 2017, K.K. injured her shoulder at work and scheduled an appointment with appellant for treatment. When she arrived for the appointment, however, neither appellant nor a receptionist was there. Appellant arrived late and told her that she “looked good ... like [she] had lost weight” as he was walking her back to the massage room.
Appellant began massaging K.K.'s back and asked her whether she was still engaged; she answered, “no.” Appellant finished massaging her back and told her to roll over. She complied, keeping her body under the blankets. Appellant lifted the blanket to expose her left leg and began massaging her left thigh “all the way down to [her] calf.” He “tuckfed]” the blanket under her so that her hip, underwear, and buttocks were still covered.
Appellant covered K.K.'s left leg with the blanket and began massaging the right side of her body. With his left hand on K.K.'s right shoulder, appellant “pull[ed] her leg out from the blanket” with his right hand. Appellant did not “tuck” the blanket like he had on her left side; rather, he pulled her leg “in [such] a way that ... [her] entire side [was] exposed.” He began “squeez[ing] her thigh and moving his hand “up towards [her] genital area.” Then, “in one swift motion,” appellant moved his hand under KK.'s underwear. She felt his fingers “all the way” “inside of' her “vagina,” his “knuckles” on the outside of her labia, and his thumb on her “butt area.” At the same time, appellant was “pushing down” with his left hand on her shoulder and chest so that she “couldn't get up.”
K.K. “panicked,” lost her voice, and started “physically shaking.” Appellant was “moaning” as he moved his fingers “in and out” of her vagina. K.K. “found her voice” and repeatedly told appellant to “stop,” but he did not stop until she hit his arm. Appellant apologized and “started squeezing [her] arms up and down,” but she insisted that he leave the room. He did, and K.K. redressed herself, “ran” out of the building, and drove home. She testified that she felt pain in her “vaginal area” the next day and rated it as an “eight” on a scale of “one to ten.”
K.K. reported the incident to the police the following day, and Detective Snell set up and recorded a “monitored phone call” between appellant and K.K. During the call, K.K. asked appellant why he stuck his fingers inside of her, and appellant responded that [his] body was telling [him] to do that.” He also stated that he was trying to “release” her “pelvic muscles” and “emotions,” but she kept moving. Snell interviewed appellant a few days later, arid appellant stated that he touched K.K.'s “pelvic floor” as part of a “myofascial release technique,” but he had “no idea” whether he put his fingers in her vagina.”
At the close of the Commonwealth's case-in-chief, appellant moved to strike the evidence. He argued that K.K.'s testimony was incredible due to inconsistencies between her testimony and what she told Detective Snell in the days following the incident. The trial court denied the motion. Appellant presented the testimony of ten character witnesses, all of whom testified that he has a reputation for honesty and being sexually appropriate as a massage therapist. Appellant also testified in his defense; he stated that he immigrated to the United States in 2008 from the Philippines and learned English as a second language. He testified that in Tagalog, his native language, “inside” means “within” or to be “inside [one's] soul” or “heart.” He claimed that he was giving K.K. a myofascial massage, which is designed to treat the “whole body,” and denied putting any part of his hand inside K.K.'s vagina.
At the close of the evidence, appellant renewed his motion to strike. He argued that K.K. and Snell's testimony was incredible and that the Commonwealth failed to prove that he placed his fingers inside K.K.'s vagina. The trial court denied the motion and, after argument by counsel, convicted him of object sexual penetration. The court found that K.K.'s testimony was “extremely credible” and that appellant's [testimony] was “filled with inconsistencies” and “changes of position.”

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:

A. Trial counsel failed “to correctly advise [Santos Orlina] of his right to appeal, thus demonstrating a conflict of interest.”
B. Trial counsel, by his own admission, was “ill-prepared,” and failed to present a “perfect argument” at the sentencing hearing, instead “speaking from his head and heart.” Trial counsel displayed a conflict of interest when he “accuse[d] his client [of] having committed the crime” during the sentencing hearing.
C. Trial counsel “failed to subpoena requested supporting witness, Donna Kemey, whose testimony would have exposed [the victim's] motive for bringing false charges against” Santos Orlina.
D. Appellate counsel presented a “dead on arrival petition for appeal without first consulting with his client” thereby depriving Santos Orlina of effective assistance of counsel on appeal.

(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).

II. Present Federal Claims

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].

1) Tagalog is Petitioner's first language and in his speech some words have a different historical meaning. (8/1/18 Tr. at 26-27,156).
2) Detective Snell admitted that Petitioner's first language was Tagalog and that his

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