Parker v. Clarke

• Decision Date: 13 January 2016
• Docket Number: Civil Action No. 3:15CV242
• Court: U.S. District Court — Eastern District of Virginia
• Parties: JALAL W. PARKER, Petitioner, v. HAROLD W. CLARKE, Respondent.

JALAL W. PARKER, Petitioner, v. HAROLD W. CLARKE, Respondent.

Civil Action No. 3:15CV242

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

January 13, 2016

MEMORANDUM OPINION

Jalal W. Parker, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition," ECF No. 3) challenging his conviction in the Circuit Court of Henrico County, Virginia (hereinafter, "Circuit Court"). In his § 2254 Petition, Parker argues entitlement to relief based upon the following claims, stated here in sum:

Claim One: "Insufficient evidence to convict Petitioner of abduction charge . . . there was no evidence of verbal or physical threats. The charge of 'abduction' requires proof of such 'force.'" (§ 2254 Pet. 6.)¹

Claim Two: "Commonwealth violated Petitioner's due process rights because of insufficient evidence of his intent to defile. To convict Petitioner of [section] 18-48.2, the Commonwealth needed to prove the Petitioner had [the] intent to commit the crime charge[d] under Virginia Code 1950. The Commonwealth[']s evidence points to 'Bradley Ellis,' not the Petitioner." (Id. at 8.)

Claim Three: "'Prosecutorial Misconduct.' Commonwealth committed 'Prosecutorial Misconduct' and Perjury by arguing at trial that the verdict isn't a[n] inconsistent verdict and also 'stated' throughout the brief to [the] Virginia Court of Appeals VA [and the] Supreme Court that the issue is a[n] inconsistent verdict." (Id. at 9.)

Claim Four: "Ineffective counsel. Trial attorney [(a)] withheld a witness/and [(b)] a written letter from Commonwealth's] star witness. Attorney 'John F. McGarvey' withheld evidence from the Petitioner and the jury and, if [the]attorney would have used the evidence, the Petitioner wouldn't be in prison, [be]cause the jury would have known Bradley Ellis was completely lying." (Id. at 11.)

In an attachment to his original, unsigned § 2254 petition, Parker also raised two additional "Assignments of Error" that are claims of ineffective assistance of counsel. (See ECF No. 1 -1.) This document appears to incorporate nearly verbatim the claims and argument from his counseled petition for appeal of the denial of his habeas petition filed in the Supreme Court of Virginia. Despite the Court's warning that he must raise all claims for relief on the § 2254 Petition form that the Court sent him in order to obtain his signature, Parker failed to list these claims on the form. Nevertheless, the Court construes this document to raise one additional claim:²

Claim Five: "Counsel failed to consult with Petitioner regarding his appeal." (ECF No. 1-1, at 9.)

Respondent moves to dismiss on the grounds that Parker's claims lack merit and are, in part, procedurally defaulted. Parker has responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 10) will be GRANTED.

I. PROCEDURAL HISTORY

A grand jury charged Parker with rape, forcible sodomy, abduction with intent to defile, and three counts of use of a firearm in the commission of a felony, second offense. See Indictments 1-6, Commonwealth v. Parker, Nos. CR11-3801-F through 3806-F (Va. Cir. Ct. Nov. 14, 2011.) A jury found Parker guilty of abduction with intent to defile, but could not reach a verdict on the remaining counts. (See ECF No. 12-1, at 1); Verdict Forms 1-6, Commonwealthv. Parker, Nos. CR11-3801-F through 3806-F (Va. Cir. Ct. Mar. 8, 2012). The Commonwealth subsequently moved to nolle prosequi the remaining counts. (See ECF No. 12-1, at 1.) The Circuit Court sentenced Parker to an active term of seven years of imprisonment. (Id. at 1).

Parker appealed. In his Petition for Appeal, Parker raised the following claim: "Whether the evidence was sufficient to sustain the convictionf] for abduction with intent to defile in view of the fact that he was not convicted of the use of the firearm in that[]offense." Petition for Appeal at 2, Parker v. Commonwealth, No. 1151-12-2 (Va. Ct. App. filed Oct. 31, 2012 (emphasis omitted) (capitalization corrected)). The Court of Appeals of Virginia denied the petition for appeal. (ECF No. 12-2, at 1.) A three-judge panel again denied Parker's petition for appeal. Parker v. Commonwealth, No. 1151-12-2, at 1 (Va. Ct. App. Mar. 25, 2013). On August 15, 2013, the Supreme Court of Virginia refused Parker's petition for appeal. Parker v. Commonwealth, No. 130733, at 1 (Va. Aug. 15, 2013).

Parker then filed a pro se petition for a writ of habeas corpus in the Circuit Court, wherein he raised Claims One through Four of the instant § 2254 Petition. Petition for Writ of Habeas Corpus at 1, Parker v. Clarke, No. CL14-129 (Va. Cir. Ct. filed Jan. 21, 2014). The Circuit Court denied the petition. (ECF No. 12-7, at 9.) Parker, by counsel, filed an appeal of the Circuit Court's denial of his habeas petition wherein he raised Claim Four (b) and Claim Five. Petition for Appeal at 1, Parker v. Clarke, No. 141244 (Va. filed Aug. 20, 2014.) The Supreme Court of Virginia refused the petition for appeal. Parker v. Clarke, No. 141244, at 1 (Va. Dec. 15, 2014.)

II. EXHAUSTION AND PROCEDURAL DEFAULT

Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion "'is rooted in considerations of federal-state comity'" and inCongressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F. Supp. 2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of exhaustion is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate opportunity to address the constitutional claims advanced on federal habeas. "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). Fair presentation demands that "'both the operative facts and the controlling legal principles'" must be presented to the state court. Longworth v. Ozmini, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine providesthat "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when the "petitioner fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n. I).³ The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex 1 State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).

Parker failed to fairly present to the Supreme Court of Virginia Claims One, Two, Three, and Four (a) of the instant § 2254 Petition. While Parker challenged the sufficiency of the evidence on direct appeal, he did not argue insufficiency of the evidence because abduction "requires proof of . . . 'force'" and proof that he "had a[n] intent to commit the crime charge[d]." (§ 2254 Pet. 6, 8.)⁴ If Parker now attempted to present Claims One, Two, Three, and Four (a) tothe Supreme Court of Virginia by way of habeas corpus, that court would find them procedurally defaulted and time-barred pursuant to section 8.01-654(A)(2)⁵ of the Virginia Code. Virginia's statute of limitations for habeas actions is an adequate and independent procedural rule when so applied. See Sparrow v. Dir. Dep 7 of Corr., 439 F. Supp. 2d 584, 587-88 (E.D. Va. 2006).⁶ Parker advances no basis for excusing his default of Claims One and Three. Accordingly, Claims One and Three will be DISMISSED.⁷

For Claim Two, Parker states that he did not raise this claim on direct appeal because "my counsel didn't raise the issue reason unknown." (§ 2254 Pet. 8.) Thus, the Court construes Parker to argue that appellate counsel is the cause for his default of Claim Two. Nevertheless, asdiscussed in infra Part V.B., appellate counsel fails to serve as cause for...