Wilson v. Clarke

• Decision Date: 12 August 2020
• Docket Number: Civil Action No. 3:19CV657
• Court: U.S. District Court — Eastern District of Virginia
• Parties: DELVIN JAMES WILSON, Petitioner, v. HAROLD W. CLARKE, Respondent.

DELVIN JAMES WILSON, Petitioner, v. HAROLD W. CLARKE, Respondent.

Civil Action No. 3:19CV657

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

August 12, 2020

MEMORANDUM OPINION

Delvin James Wilson, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (ECF No. 5) challenging his convictions in the Circuit Court of Hampton, Virginia (the "Circuit Court"). Wilson demands relief on the following grounds:

Claim One: "Sixth Amendment [V]iolation - Ineffective assistance of [appellate] counsel for failing to raise . . . the involuntariness of [Wilson's] plea on appeal." (ECF No. 5, at 5.)¹

Claim Two: "Ineffective assistance of counsel," "coercion" of counsel, "duress" from the Commonwealth's Attorney, and a lack of understanding caused Wilson to "ma[k]e pleas that were not knowing[], voluntar[y], or intelligent," and resulted in a "denial of due process." (Id. at 7.)

Claim Three: "Sixth Amendment - [I]neffective assistance of counsel for failing to show evidence of defense at motion to withdraw hearing." (Id. at 8.)

Claim Four: "Sixth Amendment - I[neffective] A[ssistance] [of] C[ounsel] for failing to cross-examine witnesses and making prejudicial statements of crime." (Id. at 10.)

Claim Five: "Fourteenth Amendment - Denial of Due Process because of a Brady² violation." (Id. at 12.)

Claim Six: "Fourteenth Amendment Violation - Due Process for not giving adequate means to raise issue of sanity and challeng[e] adverse conclusion." (Id. at 13.)

Claim Seven: "Sixth Amendment Violation - Counsel waive[d] jury trial without my consent." (Id. at 15.)

Respondent answers and moves to dismiss, inter alia, on the ground that Wilson's claims were procedurally defaulted. Wilson filed a reply. (ECF No. 17.) For the reasons stated below, the Motion to Dismiss (ECF No. 12) will be GRANTED.

I. PROCEDURAL HISTORY

On December 31, 2014, following an argument in their home, Wilson shot his wife several times causing her permanent injury, including permanent scars and loss of function in her right arm and hand.³ (VCAR at 70, n.3; VSCR at 48.)⁴ Prior to trial, a mental health evaluation was ordered, and by May, 2015, Wilson was found competent to stand trial. (VCAR at 69, n.1.) On January 14, 2016, the day before he was scheduled to stand trial, Wilson requested a second mental health evaluation. (Id. at 69.) After the trial court denied that request, Wilson entered guilty pleas to Aggravated Malicious Wounding, Use of a Firearm in a Felony, and Discharge of a Firearm in an Occupied Dwelling. (Id.) At that time, the Commonwealth dropped a fourth charge for being a Felon in Possession of a Firearm. (Id. at 69, n.2.)

During his plea colloquy, Wilson indicated to the Circuit Court that he:

1. was thirty-seven years old and had a GED (ECF No. 14-8, at 7);

2. was the person charged in the indictments that were read to him (id.);

3. fully understood the charges against him (id. at 7-8);

4. had discussed the charges and the elements with his attorney (id. at 8);

5. understood what the state had to prove before he could be found guilty (id.);

6. had enough time to discuss any possible defenses with his attorney (id.);

7. discussed how he should plead with his attorney (i.e., guilty or not guilty) (id.);

8. decided for himself that he should plead guilty (id.);

9. entered his pleas freely and voluntarily (id. at 8-9);

10. was pleading guilty because he was "in fact" guilty (id. at 9);

11. knew he was giving up a jury trial (id.);

12. knew he was giving up the right to remain silent (id.);

13. knew he was giving up the right to confront and cross-examine his accusers (id.);

14. knew he was giving up the right to defend himself against the charges (id.);

15. had not been threatened or promised anything concerning his pleas (id.);

16. understood he could receive a sentence of twenty years to life for the aggravated malicious wounding charge (id. at 10-11);

17. understood he could receive a sentence of two to ten years for the shooting in an occupied dwelling charge (id. at 11);

18. understood he would receive a "mandatory" three-year sentence for the use of a firearm in a felony charge (id.);

19. understood there was no parole in Virginia (id.);

20. was "entirely satisfied with the services of [his] lawyer (id. at 11-12); and,

21. understood that he was waiving appellate rights by pleading guilty (id. at 12).

Prior to accepting Wilson's guilty pleas, the Court asked the Commonwealth to summarize the evidence against Wilson. The Commonwealth's attorney stated:

"[On] December 31st of 2014, Jacqueline Wilson was preparing to go out to celebrate New Years with some friends. She and [Wilson] had been arguing for most of the day and [Wilson] had been drinking for most of the day. Mrs. Wilson was sitting at the kitchen table fixing her hair when she overheard [Wilson] yelling at her children in the living room. She ran into the living room and told [Wilson] not to yell at her children and told them to get dressed so they could leave the home for the evening. Mrs. Wilson returned to the kitchen table. While [she] was sitting there [Wilson] walked into the kitchen and began shooting her with a .380 [caliber] firearm. [Wilson] fired all of the bullets in the gun striking Ms. Wilson in various parts of her body. All three of Mrs. Wilson's children were present inside of the home during the shooting. As a result of the shooting Mrs. Wilson has undergone multiple surgeries and is currently involved with occupational therapy for an indefinite period of time. She has suffered permanent scars and bruising and no longer has full functionality of her right arm and hand . . . . [Wilson] had previously been convicted of a felony . . . in 2002.

(Id. at 12-13 (alterations in spacing).) Wilson acknowledged that the Commonwealth's evidence would have been sufficient to convict him if he had gone to trial. (ECF No. 14-7, at 5.) Following the plea colloquy, the Circuit Court accepted Wilson's pleas, found him guilty of the three offenses to which he had pled, and continued the matter for sentencing. (VCAR at 10, 70.)

Following his convictions, but before he was sentenced, Wilson filed motions, both pro se, and through counsel, seeking to withdraw his guilty pleas. (Id. at 70.) On April 28, 2016, a hearing was held on the issue, at which Wilson testified. (Id.) Following the hearing, the Circuit Court rejected Wilson's claims and denied his motion to withdraw his guilty pleas. (Id. at 9, 70.) On June 20, 2016, Wilson returned to the Circuit Court, at which time, he was sentenced to twenty-five years of active incarceration. (Id. at 10-11.) Wilson appealed. (Id. at 12-14, 17.)

On direct appeal, Wilson argued that the Circuit Court had erred by: 1) denying his request for a second mental health evaluation; and 2) denying his motion to withdraw his guilty pleas. (Id. at 13.) The Court of Appeals of Virginia denied Wilson's petition for appeal. (Id. at 12-14.) The Court addressed the merits of Wilson's argument concerning his request for a second mental health evaluation and found it to be lacking. (Id. at 13-14.) The Court, however, did not address the merits of his argument concerning the withdrawal of his guilty pleas, finding instead that the record was insufficient because Wilson had failed to provide a necessary transcript. (Id. at 13.)

Wilson, through his attorney, requested leave "to file the proper transcripts so [that] his assignment of error relating to his motion to withdraw his guilty plea may be considered on the merits." (Id. at 3.) The Court of Appeals granted Wilson leave to file a replacement notice of appeal, which he subsequently did. (Id. at 16, 17.) Wilson's attorney filed a new brief on the issue. (Id. at 18-33.) Wilson, acting pro se, also filed his own "amended" brief to supplement his attorney's brief. (Id. at 39-54.)

On December 29, 2017, the Court of Appeals issued a per curiam order denying Wilson's petition for appeal. (Id. at 69-73.) The Court of Appeals determined that the Circuit Court had not erred when it denied Wilson's motion to withdraw his guilty pleas because Wilson had not met his burden of showing that the motion was made in good faith, and was not merely dilatory, and because he had failed to proffer "any evidence of a reasonable basis for contesting guilty." (Id. at 72.) The Court pointed out that in both his pro se filings, and in the filings presented by his attorney, Wilson failed to attach any affidavits or point to any other specific piece of evidence to support his position. (Id. at 72, n.5.) Wilson's "bare assertion," that he had shot his wife while in the heat of passion, as opposed to with malice, was insufficient, the Court reasoned, to satisfy his burden and allow him to withdraw his guilty plea. (Id.)

Wilson filed a demand for a three-judge review. (Id. at 74 - 76.) On April 9, 2018, a three-judge panel denied Wilson's petition for appeal for the reasons stated in the December 29, 2017 per curiam order. (Id. at 80.) Wilson appealed to the Supreme Court of Virginia. (Id. at 81.) In his Petition for Appeal, Wilson raised one assignment of error concerning the denial of his motion to withdraw his guilty plea.⁵ (VSCR at 116.) On August 23, 2018, the Supreme Court of Virginia refused his petition for appeal. (Id. at 127.)

On or about November 1, 2018, Wilson filed a petition for a writ of habeas corpus in the Circuit Court. (Id. at 41-45.) Wilson raised six claims. (Id. at 43.) As stated in his memorandum in support, the claims were as follows:

Claim One: "[Counsel] provided ineffective representation when he failed to raise the involuntariness of Mr. Wilson's guilty plea on appeal." (Id. at 47, 52.)

Claim Two: "Ineffective assistance of counsel," "coercion," "duress," and a lack of understanding caused Wilson to enter a guilty plea that "was not knowing[], voluntar[y], or intelligent," and violated his "rights of the Due Process Clause." (Id. at 47, 57.)

Claim Three: "[Counsel]

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