Reyes v. Kelly

• Decision Date: 20 September 2011
• Docket Number: Civil Action No. 3:09CV23-HEH
• Parties: JORGE LUIS REYES, SR., Petitioner, v. LORETTA K. KELLY, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

JORGE LUIS REYES, SR., Petitioner,

v.LORETTA K. KELLY, Respondent.

Civil Action No. 3:09CV23-HEH

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

Dated: September 20, 2011

MEMORANDUM OPINION

(Dismissing Claims II, V, and VI and Ordering Further Briefing)

Jorge Luis Reyes, Sr. ("Petitioner"), a Virginia inmate proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions in the Circuit Court of Henrico County ("the Circuit Court") for murder and use of a firearm in the commission of that offense.

By Memorandum Opinion and Order entered on September 25, 2009, the Court denied Respondent's Motion to Dismiss and directed the parties to file further briefing. Reyes v. Kelly, No. 3:09cv23-HEH, 2009 WL 3109856, at *6 (E.D. Va. Sept. 25, 2009). Thereafter, Petitioner retained counsel. Respondent filed further briefing and renewed her request to deny the § 2254 Petition. Petitioner filed his opposition to the denial of the § 2254 Petition. At the request of the parties, the Court stayed any ruling on the § 2254 Petition while Petitioner pursued a petition for a writ of actual innocence in the Virginia courts. Petitioner represents that the proceedings on his state petition for a writ of actual innocence have concluded.

I. PETITIONER'S CLAIM FOR FEDERAL HABEAS RELIEF

Petitioner contends that he is entitled to relief upon the following grounds:

Claim I The Circuit Court erred in granting an instruction on flight.

Claim II Petitioner was denied his federal and state constitutional rights because:

A. The Circuit Court erred in denying Petitioner the right to present evidence; and,

B. Petitioner was denied a jury of his peers.

Claim III The Circuit Court erred in admitting evidence of Petitioner's prior handling of firearms.

Claim IV The Circuit Court erred in admitting the state-of-mind declarations of the victim.

Claim V The prosecutor engaged in misconduct during closing argument.

Claim VI Petitioner was denied the effective assistance of counsel because:

A. Counsel failed to challenge the credibility of the police witnesses;

B. Counsel failed to obtain the presence of a key witness;

C. Counsel failed to move for a continuance;

D. Counsel failed to subpoena statements of witnesses made to the police;

E. Counsel failed to object to references in the prosecutor's closing argument to evidence that was not presented at trial; and,

F. Counsel failed to offer a proper instruction on involuntary intoxication.

Respondent asserts that Claims I, II.A, III, and IV are procedurally defaulted. Respondent contends that Petitioner's remaining claims lack merit. For the reasons that follow, Claims II, V, and VI will be defaulted.

II. EXHAUSTION AND PROCEDURAL DEFAULT

The requirement that defendants convicted in state court exhaust their state-court remedies as a prerequisite to federal habeas review "is rooted in considerations of federal-state comity." Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). The purpose of requiring exhaustionis "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." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997)). The federal habeas statute provides 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.'" Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (quoting Matthews, 105 F.3d at 911). Thus, "the presentation to the state court of a state law claim that is similar to a federal claim does not exhaust the federal claim." Id. (citing Duncan, 513 U.S. at 366); see Gray v. Netherland, 99 F.3d 158, 162-64 (4th Cir. 1996) (concluding petitioner had not fairly presented his legal argument to the state courts). "The burden of proving that a claim has been exhausted lies with the petitioner." Matthews, 105 F.3d at 911 (citing Mallory v. Smith, 27 F.3d 991, 994 (4th Cir. 1994)).

"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard, 134 F.3d at 619. This doctrine provides that "[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)). Procedural default also occurs where 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.l).¹ The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010). Absent a showing of cause and prejudice or a fundamental miscarriage of justice (such as a petitioner's actual innocence), this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).

A. Claims I, III, and IV

As this Court previously observed, Petitioner presented Claims I, II, and IV on direct appeal purely as state law questions. Reyes v. Kelly, No. 3:09CV23-HEH, 2009 WL 3109856, at *2 (E.D. Va. Sept. 25, 2009).² Hence, Petitioner did not fairly present the federal constitutional challenges of Claims I, III, and IV on direct appeal. See Duncan, 513 U.S. at 365-66.

Petitioner contends that he did exhaust the federal constitutional aspects of Claims I, III, and IV on state habeas because, at the conclusion of his state habeas petition, he stated: "The evidence is clear that the detention of Jorge Luis Reyes, Sr. is unlawful because of a myriad of fallacies, including, but not limited to, the deprivation of his fundamental right to Due Process." Memorandum Support State Habeas Petition at 36, Reyes v. Warden, Sussex I State Prison, No. 081267 (Va. filed June 16, 2008).

Proper exhaustion requires a petitioner to present his claims in accordance with the state's "chosen procedural scheme." Mallory, 27 F.3d at 995. As this Court previously observed, "Virginia's chosen procedural scheme requires prisoners seeking habeas relief to utilize a standard form prescribed by statute." Reyes, 2009 WL 3109856, at *2 (citing Va. Code Ann. § 8.01-655). On the standardized form, Petitioner represented that his state habeas claims pertaining to (1) the instruction on flight (§ 2254 Claim I), (2) the admission of evidence of Petitioner's prior handling of firearms (§ 2254 Claim III), and (3) the admission of the state of mind declarations of the victim (§ 2254 Claim IV) were the same state law claims that he had advanced on direct appeal. Id. at *3. "Understandably, the Supreme Court of Virginia rejected these claims on the ground that they had previously been decided on direct appeal." Id. "Permitting review of the federal constitutional aspects of Claims I, III, and IV, under the present circumstances, would inappropriately ' signal[] litigants that they may ignore state procedures and still expect the federal courts to hear [their] claims.'" Id. at *4 (alterations in original) (quoting Mallory, 27 F.3d at 996). Therefore, in his state habeas petition, Petitioner did not fairly present the federal constitutional aspects of Claims I, III, and IV.³

Petitioner next contends that he fairly presented the federal constitutional aspects of Claims I, III, and IV to the Supreme Court of Virginia because, during the proceedings on his state habeas petition, he made a passing reference to due process at the end of his Reply Brief to Respondent's Motion to Dismiss. Petitioner's Reply at 17, Reyes v. Warden, Sussex I State Prison, No. 081267 (Va. filed Sept. 4, 2008). Petitioner fails to demonstrate that, under Virginia's "chosen procedural scheme," a reference to due process in such a reply constitutes a proper method for raising a federal constitutional claim on state habeas. Mallory, 27 F.3d at 995. "Supreme Court of Virginia Rule 5:7 specifies the pleadings permitted in an original jurisdiction habeas corpus case: a verified petition and a responsive pleading. A memorandum of law may be filed along with either of these pleadings. Absent court authorization, no other documents may be filed." Strong v. Johnson, 495 F.3d 134,139 (4th Cir. 2007) (citing Va. Sup. Ct. R. 5:7 and Virginia cases interpreting that rule). Petitioner did not obtain authorization to file his Reply Brief to Respondent's Motion to Dismiss or additional documents in his state habeas proceedings. Thus, Petitioner did not fairly present the federal constitutional aspects of Claims I, III, and IV by his reference to the Constitution in his unauthorized filing in the Supreme Court of Virginia. Id.; s...