Ricks v. Clarke
| Decision Date | 06 January 2022 |
| Docket Number | 2:21-cv-00378 |
| Parties | IZHAN RICKS #1462332, Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
REPORT AND RECOMMENDATION
Petitioner Izhan Ricks ("Petitioner" or "Ricks") filed this federal habeas petition (the "Petition") under 28 U.S.C. § 2254, and the Petition was referred to the undersigned pursuant to the provisions of 28 U.S.C §§ 636(b)(1)(B) and (C) and Rule 72(b) of the Federal Rules of Civil Procedure. Respondent moved to dismiss the Petition, arguing that Ricks had failed to exhaust his state remedies and that his claims were procedurally defaulted. Resp't Br. Supp. Mot. Dismiss ("Resp't Br.") (ECF No. 15). Along with the motion, Respondent provided the notice to pro se parties required by Local Rule 7(K) and the Fourth Circuit's decision in Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). (ECF No. 16). Because the Petition contains habeas claims that are procedurally defaulted, and which default is not otherwise excused, this Report recommends that it be dismissed without prejudice.
On August 21, 2019, Petitioner was convicted in the Circuit Court for Virginia Beach City of burglary, robbery, use of a firearm in commission of felony, conspiracy to commit a felony, and possession of a firearm by a violent felon. Resp't Br. Ex. A (ECF No. 15-1, at 1). He was sentenced to forty years, with all but fifteen years suspended. Id.
Defense attorney Kristin Paulding ("Paulding") represented Ricks at trial. Am. Pet. (ECF No. 8, at 13). During the trial, Paulding unsuccessfully moved to suppress Ricks's statements to law enforcement on the grounds that he was in custody when he made them. Resp't Br. Ex. F (ECF No. 15-6, at 1, 3). However, Paulding chose not to file several constitutional challenges (the "Challenges") that Ricks presented pro se to the trial court and forwarded to the Virginia Attorney General. The Challenges consist of several handwritten pages seeking rulings on purported constitutional questions as well as a trial delay until the Supreme Court of Virginia could resolve them. Resp't Br. Ex. G (ECF No. 15-7, at 2-3). The Challenges are varied and include, by way of example, alleged search warrant and arrest warrant violations, discovery failures, unauthorized taking of photographs and fingerprints, and a "sovereign citizen" claim. Resp't Br. Ex. G (ECF No. 15-7). Ricks' pro se filings also sought money damages and requested a remedy in admiralty. Id.
Ricks appealed his conviction to the Court of Appeals of Virginia. Am. Pet. (ECF No. 8, at 13). In his appeal, Ricks argued that the trial court erred in denying his motions to suppress and that the evidence was insufficient to prove his identity as one of the perpetrators. Ricks v. Virginia. No. 0473-20-1 (Va. Ct. App. Sept. 10, 2020), affd, (Va. Ct. App. Dec. 17, 2020), Resp't Ex. B (ECF No. 15-2, at 6, 10). The court denied the appeal, first by per curiam order and then by a three-judge panel. Id. Petitioner did not appeal this denial to the Supreme Court of Virginia.
Ricks thereafter executed a state petition for a writ of habeas corpus, which he filed in the Circuit Court of the City of Virginia Beach. No. CL21-2516 (Va. Cir. Ct. July 29, 2021), Resp't Ex. C (ECF No. 15-3).
Ricks was not represented by counsel on his state habeas petition. Id. In his petition, Ricks alleged that his pro se Challenges were Id. at 1. Thus, Petitioner "allege[d] that he [was] entitled to habeas corpus relief because no response was filed to pro se motions that he asserts he filed . . . regarding his criminal case." Id. The respondent moved to dismiss the petition, Am. Pet. Ex. A (ECF No. 8, at 16), which the circuit court granted, No. CL21-2516 (ECF No. 15-3). The circuit court noted that "any failure of the Commonwealth or any of her agents to answer [Ricks's] motions does not provide a ground for habeas corpus relief." Id at 1.
Ricks thereafter filed a second state petition for writ of habeas corpus with the Supreme Court of Virginia raising allegations identical to those raised in the circuit court. Va. (R. 1-4).[1]Ricks also submitted additional challenges in several new handwritten pages.[2] Id. at 12-20, 23-26. The Court dismissed Ricks's petition without addressing it merits because he did "not allege he [was] detained without lawful authority." Resp't Br. Ex. D (ECF No. 15-4).
In this federal petition filed September 28, 2021, [3] Ricks challenges his convictions by asserting ineffective assistance of counsel, summarized from the Petition as follows: (1) counsel "failed to raise" the Challenges he eventually filed pro se; and (2) counsel's failure prejudiced him because raising the Challenges would have led to dismissal of all charges. Am. Pet. (ECF No. 8, at 5, 7). Ricks alleges that Paulding "convinced" him that the Challenges "would only work in federal court," and so he "felt no need to pursue the matter" in state court. Id. at 5. Ricks also alleges that he provided appellate counsel with the Challenges, but counsel only "raised [grounds] . . . related to the trial court verdict" and that "he believed were helpful to Petitioner." Id. at 7.
Respondent filed his Rule 5 Answer and Motion to Dismiss, along with a brief in support, on November 12, 2021. Resp't Br. (ECF Nos. 14, 15). Ricks failed to respond to the Motion, which is now ripe to resolve.
Habeas petitions filed pursuant to 28 U.S.C. § 2254 challenge a state's custody over a petitioner on the grounds that such custody violates "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In this case, Ricks challenges his state custody on the grounds that he did not receive effective trial representation as required under the Sixth Amendment. Am. Pet. (ECF No. 8). However, Ricks is procedurally barred from raising those claims now. Furthermore, the Supreme Court's holding in Martinez v. Ryan, 566 U.S. 1 (2012), does not excuse the default of his inefficient assistance of counsel claims. This Report thus RECOMMENDS GRANTING Respondent's Motion to Dismiss, (ECF No. 14), and DISMISSING with prejudice Rick's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, (ECF No. 8).
Before applying for federal habeas relief, a petitioner must first exhaust the remedies available in state court or demonstrate the absence or ineffectiveness of such remedies.
28 U.S.C. § 2254(b)(1). This requirement gives "state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing . . . ." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). The prisoner must "invoke[] one complete round of the State's established appellate review process." O'Sullivan v. Boerckel. 526 U.S. 838, 844-45 (1999). Furthermore, "[e]xhaustion generally requires that the essential legal theories and factual allegations advanced in federal court be the same as those advanced at least once to the highest state court." Pruett v. Thompson. 771 F.Supp. 1428, 1436 (E.D. Va. 1991), afFd, 996 F.2d 1560 (4th Cir. 1993). The habeas petitioner bears the burden of proving that all claims are exhausted. Breard. 134 F.3d at 618 (citing Mallorv v. Smith. 27 F.3d 991, 994 (4th Cir. 1994)). Ricks did not present his ineffectiveness claims to the Virginia courts in either of his state habeas petitions but raises them for the first time now with this Court.
A claim may be treated as exhausted if it clearly would be procedurally defaulted if presented in state court. Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland. 518 U.S. 152, 161 (1996)). Ricks's ineffective assistance of counsel claims are procedurally defaulted because Virginia law prohibits successive petitions alleging grounds that were available when a petitioner first filed. Va. Code § 8.01-654(B)(2) ("No writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition."). Ricks previously filed a state habeas petition, in which he did not claim ineffective assistance of counsel. No. 0473-20-1, Resp't Ex. B (ECF No. 15-2, at 13). Because his ineffectiveness claims relate to his attorney's performance at trial, they were clearly available to him when he filed the state petitions. Virginia's successive petitions bar would prevent him from raising them in a new petition. This rule is well-established as an "adequate and independent state-law ground for decision." Mackall v. Angelone. 131 F.3d 442, 446 (4th Cir. 1997) (citing cases).
Failure to comply with state procedures bars a petitioner from raising that claim in a federal habeas petition unless the petitioner can show cause for the default and resulting prejudice. Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). Ricks has not shown cause or prejudice. He alleges that trial counsel told him that the Challenges "would only work in federal court," and he thus "felt no need to pursue the matter." Am. Pet. (ECF No. 8, at 5). He also noted that appellate counsel only raised issues "related to the trial court's verdict," and not the Challenges. Id. at 7. Ricks did not explain why a claim for ineffective assistance of counsel was not raised in his state habeas petition. Therefore, there are no "objective factor[s] external to the defense" that impeded his...
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