Slavek v. Hinkle

Decision Date10 March 2005
Docket NumberNo. 1:03CV1439.,1:03CV1439.
Citation359 F.Supp.2d 473
PartiesRobert J. SLAVEK, Petitioner, v. George HINKLE, Warden, Respondent.
CourtU.S. District Court — Eastern District of Virginia

Robert Joseph Slavek, Pro Se, Jarratt, VA.

Virginia Bidwell Theisen, Office of the Attorney General, Richmond, VA, for Respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

Petitioner, Robert J. Slavek ("Slavek"), a Virginia inmate proceeding pro se, filed this petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his state court convictions. On July 23, 2004, respondent filed a Motion to Dismiss and Rule 5 Answer. Slavek was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), and did so by filing a response on November 23, 2004. Accordingly, this matter is now ripe for disposition. For the reasons that follow, this petition must be dismissed.

I.

The record reflects that on August 18, 1999, the Norfolk Police Department was conducting surveillance of Slavek at the Kirn Memorial Library. In the course of this surveillance, Slavek was observed using library computers to access child pornography websites with the use of a stolen credit card. He was then observed printing four sexually explicit images of children from these websites. On exiting the library, Slavek was approached by police officers, who found the four printed pictures on his person. Slavek was arrested and charged with one count of "possession of sexually explicit visual material utilizing or having as a subject a person less than eighteen years of age," a misdemeanor proscribed by Virginia Code § 18.2-374.1:1,1 and with one count of "reproducing sexually explicit material of persons under eighteen years of age," a class 5 felony, Virginia Code § 18.2-374.1. A subsequent consensual search of Slavek's room at the Norfolk Union Mission yielded four plastic grocery bags containing numerous photographs of sexually explicit images of children printed from a computer.

On November 15, 1999, Slavek pled guilty in the Norfolk General District Court to the misdemeanor charge of child pornography possession with regard to the four plastic grocery bags and was sentenced to twelve months in jail. On the same day, the General District Court held a preliminary hearing on the felony production charge and dismissed this charge.

Subsequently, on March 1, 2000, a grand jury indicted Slavek on eight counts of possession of child pornography, four counts of production of child pornography,2 one count of credit card forgery and one count of credit card theft. Thereafter, Slavek filed two pre-trial motions: (i) a Motion to Quash Indictments based on the Commonwealth's violation of his rights under the Double Jeopardy Clause; and (ii) a Motion to Dismiss the charges pursuant to a violation of his speedy trial rights under Virginia Code § 19.2-243, which requires that a defendant, held continuously in custody, must be tried within five months of a finding of probable cause. The Circuit Court of the City of Norfolk denied both motions. Commonwealth v. Slavek, CR00001143-00 through 13 (Va. Cir. Ct. Sept. 13, 2000, and Sept. 18, 2000). Ultimately, Slavek entered a conditional plea, reserving his right to appeal the adverse rulings on his pre-trial motions. Slavek pled guilty to eight counts of possession of child pornography, four counts of reproduction of child pornography, one count of credit card forgery and one count of credit card theft. In accordance with the plea agreement, which provided for a sentence of five years for each conviction with four years suspended for each count, the Circuit Court sentenced Slavek to seventy years imprisonment with fifty-six years suspended to be followed by an indeterminate period of supervised probation. Commonwealth v. Slavek, CR00001143-00 through 13 (Va.Cir.Ct. Sept. 25, 2000).

Thereafter, Slavek filed a petition for appeal in the Court of Appeals of Virginia, raising the following claims: (i) that the indictment for eight counts of possession of child pornography violated his rights under the Double Jeopardy Clause; (ii) that the trial court erred in ruling that the printing of a pornographic image from a computer screen satisfied the statutory language and intent of Virginia Code § 18.2-374.1; and (iii) that the trial court erred in denying his motion to dismiss the indictments based on a statutory speedy trial violation. The Court of Appeals of Virginia reversed and vacated the eight possession convictions, but affirmed the four reproduction convictions. Slavek v. Commonwealth, R. No. 2452-00-1, 2001 WL 1182397 (Va.Ct.App. Oct. 9, 2001). Slavek, by petition for appeal, then sought review in the Supreme Court of Virginia, which denied the petition. Slavek v. Commonwealth, R. No. 012463 (Va. Mar. 14, 2002).

On March 17, 2003, Slavek filed a state habeas petition in the Supreme Court of Virginia asserting the following claims:

A. His conviction must be set aside on the grounds that the statute, under which he was convicted, namely Virginia Code § 18.2-374.1(B)(3), is unconstitutional because computer-generated images are a form of protected speech. Furthermore, Slavek alleged the Commonwealth failed to establish that the four images found on his person were of real people.

B. His conviction must be set aside because his constitutional and statutory rights to a speedy trial were violated.

C. His conviction must be set aside because his rights under the Double Jeopardy Clause were violated when the Commonwealth charged him with four counts of production of child pornography and eight counts of possession of child pornography.

D. His conviction must be set aside because his indictment was flawed as it did not specify which portions of Virginia Code § 18.2-374.1 he was accused of violating.

E. His conviction must be set aside because on two counts he was sentenced outside the Virginia sentencing guidelines to indeterminate probation.

F. His conviction must be set aside as his counsel was ineffective for the following reasons:

1. Counsel failed to provide an adequate defense because counsel did not present an argument on the lack of profit motive, which, according to Slavek, was the paramount goal of the legislature in enacting Virginia Code § 18.2-374.1. Furthermore, counsel did not present an argument on whether the individuals, represented in the images, were real people and Virginia citizens.

2. Counsel failed to prepare for the July 17, 2000 hearing and counsel was unaware of the pertinent facts from the General District Court proceeding of November 15, 1999. Furthermore, counsel confused Slavek's name with the prosecutor's name.

3. Counsel failed to have Slavek present at the entry of the trial court's July 27, 2000 continuance order.

4. Counsel failed to object to the trial court's July 27, 2000 continuance order.

5. Counsel failed to preserve the attorney-client privilege by discussing the facts of the plea agreement in the presence of nine other inmates awaiting trial, instead of securing a private interview room.

6. Counsel displayed a prejudicial attitude by his unsolicited description of the evidence as disgusting during the July 17, 2000, hearing, and by declaring in his letter of July 17, 2000, that Slavek must cooperate with the court and the prosecutor.

7. Counsel did not inform Slavek of the side bar discussion, which occurred during the July 17, 2000 hearing.

8. Counsel advised Slavek to reject a five-year plea bargain, and instead advised him to accept a seventy-year plea agreement.

9. Counsel unduly influenced Slavek into accepting the plea agreement by stating that he could not defend Slavek in a jury trial because he had pled guilty to the misdemeanor charge in the General District Court.

Slavek's state habeas petition was denied and dismissed on August 15, 2003. Slavek v. Warden, R. No. 288690 (Va. Aug. 15, 2003).

On November 4, 2003, Slavek filed the instant federal habeas petition, wherein he raises the same claims presented in his state habeas petition to the Supreme Court of Virginia. On July 23, 2004, respondent filed a Motion to Dismiss and Rule 5 Answer, and Slavek filed a response on November 23, 2004. Accordingly, this matter is now ripe for disposition.

II.

Where, as here, a petitioner mounts a constitutional collateral attack on a state conviction stemming from a guilty plea, three threshold inquiries are required:

(i) whether the constitutional claim was exhausted in state court;

(ii) whether the constitutional claim was procedurally defaulted by application of an adequate and independent state procedural rule; and

(iii) whether defendant's constitutional challenge to the claim has been foreclosed by entry of a guilty plea.

First, state exhaustion has long and sensibly been a prerequisite for federal habeas review of constitutional challenges to state convictions for, as the Supreme Court has recognized, the exhaustion requirement "is rooted in considerations of federal-state comity" and Congress' determination in 28 U.S.C. § 2254(b) that exhaustion of adequate state remedies will "best serve the policies of federalism." Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). This exhaustion requirement is satisfied so long as "a claim has been `fairly presented' to the state courts." See Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir.2000), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 110 (2001). In this case, the exhaustion inquiry is easily resolved because the record clearly reflects that Slavek properly presented all of the claims asserted here in his state habeas petition presented to the Supreme Court of Virginia.3 It follows, therefore, that Slavek has met the exhaustion requirement as to all of his claims. The next two inquiries require more extensive analysis.

The...

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