Lawrence R. Leonard United States Magistrate Judge
his
matter is before the Court on Petitioner Eric Donnell
Saunders's (“Petitioner”) pro se Petition for
a Writ of Habeas Corpus (the “Petition”) filed
pursuant to 28 U.S.C. § 2254, ECF No. 1, and Respondent
the Commonwealth of Virginia's (“Respondent”)
Motion to Dismiss, ECF No. 9. The matter was referred for a
recommended disposition to the undersigned United States
Magistrate Judge (“undersigned”) pursuant to 28
U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of
Civil Procedure 72(b), Eastern District of Virginia Local
Civil Rule 72, and the April 2, 2002, Standing Order on
Assignment of Certain Matters to United States Magistrate
Judges. The undersigned makes this recommendation without a
hearing pursuant to Federal Rule of Civil Procedure 78(b) and
Eastern District of Virginia Local Civil Rule 7(J). For the
following reasons, the undersigned RECOMMENDS that the
Respondent's Motion to Dismiss, ECF No. 9, be GRANTED
and the Petition, ECF No. 1, be DENIED and DISMISSED WITH
PREJUDICE.
I.
PROCEDURAL BACKGROUND
As
explained by the Supreme Court of Virginia, the Petition
arises out of the following set of facts:
Petitioner was convicted in 1990 of sodomy, abduction, and
rape and was sentenced to seventy years' imprisonment
with fifty years suspended for life, conditioned on
indefinite probation. In 1991, while incarcerated, petitioner
committed and was convicted of forcible sodomy and was
sentenced to ten years' imprisonment. In 2014, after
release from custody of the Virginia Department of
Corrections, petitioner was civilly committed in the Circuit
Court of Southampton County as a sexually violent predator
(SVP) and committed to the custody of the Department of
Behavioral Health and Developmental Services (DBHDS).
Petitioner was granted conditional release from DBHDS and
also began supervised probation pursuant to his 1990
convictions in September 2017. Petitioner was supervised by
Angelena M. Bertolini-Alley (Bertolini), a sex offender
specialist probation and parole officer who monitored both
his probation and his conditional release. See Code §
37.2-912 (‘[I]f the respondent is on parole or
probation, the respondent's parole or probation officer
shall implement the court's conditional release
orders'). As part of petitioner's conditional
release, he was required to ‘comply with all provisions
of [his] Conditional Release Plan,' including that he be
subject to electronic monitoring by means of a GPS tracking
device, participate in and successfully complete sexual
offender assessment and treatment and substance abuse
treatment, be truthful and cooperative with his supervising
officer and follow her instructions, not have any
unauthorized possession or use of any electronic device
capable of accessing the internet without the permission of
his supervising officer or the court and, if authorized to
use the internet, install monitoring software, ‘not
purchase, look at, nor possess any sexually explicit
pornographic, or suggestive material, though any medium of
print, photo, or any form of electronic format,' not
establish or visit any electronic social networking sites
‘attend mental health treatment with a licensed mental
health provided who is aware of his offending history and
approved by his supervising officer,' take his prescribed
medication, obtain approval from his supervising officer for
any employment, not work in any place where he would have
access to minors or other vulnerable persons unless approved
by his supervising officer, and fully inform his employers,
relatives, and other persons in his social circle, in the
presence of his supervising officer, ‘of his history of
sexual aggression.'
ECF No. 1, attach. 3 at 1-2. On March 19,2018, Probation
Officer Bertolini filed a major violation report seeking an
emergency custody order (“ECO”), which was
granted. ECF No. 10, attach. 2 at 1-3. Therein, Probation
Officer Bertolini asserted that Petitioner violated condition
number three requiring him to seek and maintain employment,
and condition number six requiring Petitioner to follow the
instructions of his probation officer and to be truthful and
cooperative. ECF No. 10, attach. 3 at 2-3. On November 27,
2018, the Circuit Court of the County of
Southampton (the “Trial Court”) held a hearing
“to determine whether the Respondent violated the terms
of his conditional release as a sexually violent predator and
if so, whether the Respondent remains suitable for
conditional release under the Code of Virginia §
37.2-913” (the “Hearing”). ECF No. 10,
attach. 4 at 1. After reviewing the evidence and Hearing
testimony, the Trial Court found by clear and convincing
evidence that Petitioner violated the conditions of his
release, and that his violation of his conditions rendered
him no longer suitable for conditional release. Id.
Petitioner
appealed the Trial Court's Order to the Supreme Court of
Virginia on February 25,2019. ECF No. 10, attach. 5. Therein,
Petitioner raised three assignments of error:
1. The Trial Court erred because the evidence was
insufficient, as a matter of law under a clear and convincing
evidentiary standard, to find Respondent in violation of the
rules of his conditional release and to recommit him to the
Virginia Center for Behavioral Rehabilitation.
2. The Trial Court erred in qualifying the probation officer
as an expert and allowing the probation officer to give an
opinion as an expert witness on one of the ultimate issues.
3. The Trial Court erred in not considering Respondent's
motion to quash on the merits.
Id. at 4. The Supreme Court of Virginia summarily
refused the appeal on July 1, 2019, stating “[u]pon
review of the record in this case and consideration of the
argument submitted in support of and in opposition to the
granting of an appeal, the Court is of opinion there is no
reversible error in the judgment complained of.”
Saunders v. Commonwealth, Record No. 190246 (Va.
July 1, 2019).
Petitioner
then filed a petition for a writ of habeas corpus in the
Supreme Court of Virginia, raising the following claims:
(a) Violations of constitutional prohibitions against ex post
facto laws, cruel and unusual punishment, double jeopardy,
equal protection, and due process.
(b) Ineffective assistance of counsel during his 2014
commitment proceedings because (i) Counsel failed to inform
him of the consequences of admitting to being a sexually
violent predator; (ii) Counsel advised him that the
Commonwealth would agree to his conditional release if he
admitted to being a sexually violent predator (iii) Counsel
failed to research and advise petitioner on the factors the
Commonwealth had to prove before he could be found to be an
SVP (iv) Counsel failed to “establish any objective of
representation” for his defense.
(c) The conditions of conditional release violates his First
and Fourteenth Amendment Rights because they limit his access
to the internet
(d)(i) Insufficient evidence to prove he met the criteria for
civil commitment as a sexually violent predator (ii)
Insufficient evidence to prove he should be recommitted as a
sexually violent predator
(e)(i) The Circuit Court erred in failing to consider the
merits of petitioner's motion to quash the emergency
commitment order (ii) Ineffective assistance of counsel
because counsel only raised three issues in the petition for
appeal from petitioner's recommitment.
(f) Prosecutorial misconduct because the Commonwealth did not
have sufficient evidence to revoke his conditional release
but did so anyway in violation of his constitutional rights,
and the Commonwealth failed to correct false testimony from
his probation officer
(g) Insufficient evidence to find he violated the conditions
of his conditional release
(h)(i) Ineffective assistance of counsel because
“counsel failed to abide by petitioner's decisions
concerning the objectives of representation” because
counsel refused to argue his pro se motion to quash on the
grounds that he could not make the arguments petitioner
wanted him to in good faith.
(h)(ii) Ineffective assistance of counsel because counsel
failed to investigate the Commonwealth's allegation that
petitioner failed to follow Bertolini's instructions to
apply for and follow up with job opportunities,
(h)(iii) Ineffective assistance of counsel because counsel
failed to challenge the Commonwealth's evidence that
petitioner failed to follow up with mental health services
(h)(iv) Ineffective assistance of counsel because counsel
failed to investigate the Commonwealth's allegation that
petitioner removed the Covenant Eyes program without
notifying Bertolini.
(h)(v) Ineffective assistance of counsel because counsel
failed to investigate the Commonwealth's allegation that
the petitioner accessed Facebook in March 2018.
(h)(vi) Ineffective assistance of counsel because counsel
failed to investigate the Commonwealth's allegation that
petitioner remained an SVP in need of treatment.
ECF No. 1, attach. 3 at 2-14. The Supreme Court of Virginia
reviewed Petitioner's claims and found that claim (a)
and claim (f) were barred by Slayton v. Parrigan
because they were non-jurisdictional issues that could have
been raised at trial and on direct appeal; claim (b), claim
(c), and the portion of claim (d) alleging the evidence was
insufficient to prove he met the criteria for civil
commitment as a sexually violent predator were all
time-barred pursuant to Virginia Code § 8.04-654(A)(2);
the portion of claim (d) alleging the evidence was
insufficient to prove he should be recommitted as a sexually
violent...
