Paternoster-Cozart v. Clarke

• Decision Date: 31 July 2014
• Docket Number: Case No.: 2:13cv539
• Court: U.S. District Court — Eastern District of Virginia
• Parties: JOSHUA PATERNOSTER-COZART, #1401269 Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

JOSHUA PATERNOSTER-COZART, #1401269 Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

Case No.: 2:13cv539

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

FILED: AUGUST 1, 2014
July 31, 2014

OPINION and FINAL ORDER

By Order of October 5, 2011, a Hampton Circuit Court judge sentenced Joshua Paternoster-Cozart ("Petitioner") to serve four years of incarceration for several crimes. Petitioner filed a habeas corpus petition in the Hampton Circuit Court challenging such order, but failed to timely appeal the denial of that petition to the Virginia Supreme Court. Petitioner has now filed a habeas corpus petition in this Court. However, a state prisoner generally must exhaust all available state court remedies before a federal court can consider such a habeas corpus petition. Because Petitioner failed to timely appeal the denial of his state court habeas petition to the Virginia Supreme Court, he has procedurally defaulted his right to proceed with his federal habeas corpus petition. While federal law requires that federal habeas courts give due respect to

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state courts' habeas decisions involving state prisoners, such procedural default can be excused where a petitioner shows "cause" for the default and actual "prejudice" as a result of a violation of federal law. As Petitioner fails to demonstrate that he is entitled to credit against his four-year sentence for time he previously spent in confinement during his diversionary drug court program, Petitioner has not shown that there was a violation of federal law, and therefore he has not shown "prejudice." For this reason, and as explained in greater detail below, his federal habeas petition is DISMISSED and DENIED.

The federal petition for a writ of habeas corpus pending before this Court was filed pursuant to 2 8 U.S.C. § 2254. Petitioner's primary contention is that he should be granted immediate release from incarceration because he is improperly being denied credits against his state court sentence in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Additionally, Petitioner alleges that he was denied a hearing in violation of his due process rights under the Fourteenth Amendment, that he was forced to participate in a religious drug-counseling program in violation of his First Amendment rights, and that he was denied the right to the effective assistance of counsel, in violation of his Sixth Amendment rights.

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Pursuant to the provisions of 28 U.S.C. § 636(b)(1), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia, this matter was previously referred by this Court to a United States Magistrate Judge for a report and recommendation ("R&R"). In addition to Petitioner's habeas motion, which was amended and supplemented with leave of court, the Magistrate Judge had before him a motion to dismiss filed by Harold W. Clarke, Director, Virginia Department of Corrections ("Respondent"). On May 22, 2014, the Magistrate Judge issued his R&R recommending that Respondent's motion to dismiss be denied, that Petitioner's amended habeas motion be granted, in part, and that Petitioner receive a credit against the sentence he is currently serving for sixty-six (66) days that he spent in jail confinement between July 14, 2010 and September 13, 2011. ECF No. 34.

By copy of the R&R, Petitioner and Respondent were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. This Court thereafter received objections from both Petitioner and Respondent. Additionally, this Court requested and received materials that were not before the Magistrate Judge, but that were part of the state court record, including transcripts, to aid in the resolution of Petitioner's habeas motion. Having

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considered de novo all objected-to portions of the R&R, for the reasons set forth in detail below, the Court GRANTS Respondent's motion to dismiss, and DISMISSES Petitioner's procedurally defaulted § 2254 motion in its entirety. Alternatively, Petitioner's habeas motion is DENIED on the merits.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Court adopts and incorporates the Magistrate Judge's account of the facts, and repeats only the facts necessary to address the objections before this Court. On October 16, 2008, Petitioner pled guilty, pursuant to a plea agreement, to three counts of forgery, three counts of uttering, and one count of grand larceny in the Circuit Court for the City of Hampton, Virginia ("the trial court" or "Hampton Circuit Court"). Pursuant to the terms of the plea agreement, the trial court sentenced Petitioner to twelve years imprisonment, with all twelve years suspended, on the forgery and uttering counts, and to ten years imprisonment, with nine years and nine months suspended, on the grand larceny count, for a total of three months of active incarceration. Following incarceration, Petitioner was required to serve a lengthy period of probation. On January 8, 2010, Petitioner pled guilty to a new criminal offense, which occurred on December 20, 2008 — "shoplifting, third offense." The trial court found Petitioner guilty of such charge, entered an order reflecting that finding, and continued

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the matter for preparation of a presentence report. Such new conviction constituted a violation of the terms of Petitioner's probation on the 2008 convictions.

While awaiting sentencing on the shoplifting conviction, and while awaiting a probation violation hearing on the 2008 convictions, Petitioner was evaluated for various alternative sentencing options. While these evaluations were taking place, Petitioner wrote his attorney in May 2010 asking to be screened for the Hampton Drug Court program. On July 13, 2010, the trial court accepted and signed two plea agreements between the Commonwealth and Petitioner; one pertained to the new shoplifting conviction, and the other resolved the probation violations on the 2008 forgery, uttering, and grand larceny convictions. Under the plea agreement for the 2008 probation violations, Petitioner and the Commonwealth agreed that the evidence was sufficient to revoke probation, but that if Petitioner successfully completed the Hampton Drug Court Program ("the drug court program"),¹ the Commonwealth would recommend a

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suspended sentence on such probation violations, followed by an additional period of probation. However, if Petitioner failed to successfully complete the drug court program, he would be sentenced to a total of four years of active incarceration for the probation violations on the 2008 convictions. Under the plea agreement for the new shoplifting conviction, Petitioner's January 8, 2010 plea of guilty and the court's finding of guilt were recognized, and it was agreed by the parties that Petitioner would enter the drug court program. If Petitioner successfully completed the drug court program, the Commonwealth agreed to recommend a suspended sentence, followed by a period of probation. However, if Petitioner failed to successfully complete the drug court program, the parties agreed he would be sentenced to one year and eight months of active incarceration. The trial court signed both plea agreements and entered orders accepting the plea agreements.

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Petitioner began the drug court program on July 14, 2010, and, according to his state habeas petition, he was "violated" on July 26, 2010, and again on September 10, 2010, for which he was required to serve jail time for three days and five days, respectively. On March 7, 2011, after being enrolled in the drug court program for almost eight months, Petitioner's third violation was based on a positive test for cocaine. Rather than terminating Petitioner from the drug court program, Petitioner was given the option, which he elected, to complete a program at the Stafford Diversion Center ("the diversion program").² ECF No. 49-4 at 6-8. While in the diversion program, on August 16, 2011, program staff members discovered synthetic marijuana on the Petitioner. As a result of his misconduct, Petitioner was administratively terminated from the diversion center. On September 13, 2 011, Petitioner, who was in custody, appeared before the Hampton Circuit Court, with counsel, and the judge entered several written orders: (1) finding that Petitioner "failed to comply with the terms and conditions of the Drug Court Program"; and (2) setting an October 5, 2011 revocation hearing on Petitioner's 2008 convictions and a sentencing

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hearing on Petitioner's shoplifting conviction. ECF No. 46-1, at 18, 48; ECF No. 46-2, at 50.

On October 5, 2011, at the conclusion of the revocation/sentencing hearing in Hampton Circuit Court, Petitioner was sentenced to a total of four years active incarceration based on his failure to complete the drug court program, as required by his July 13, 2010 plea agreements. Such sentence represented a four year sentence on Petitioner's probation violations associated with his 2008 convictions. No active time was imposed for Petitioner's 2010 shoplifting conviction. During his term of incarceration, Petitioner inquired into the computation of his sentence and was informed that, per the Hampton Circuit Court, he would not receive credit...