Winston v. Clarke

• Decision Date: 12 May 2023
• Docket Number: 2:18cv577,2:20cv423
• Parties: LEANTHONY T. WINSTON, #977597, Petitioner, v. HAROLD W. CLARKE, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

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LEANTHONY T. WINSTON, #977597, Petitioner, v. HAROLD W. CLARKE, Respondent.

Nos. 2:18cv577, 2:20cv423

United States District Court, E.D. Virginia, Norfolk Division

May 12, 2023

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

ROBERT J. KRASK UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on a supplemental motion to dismiss LeAnthony Winston's (“Winston”) pro se amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Winston's motion for a temporary restraining order or preliminary injunction, motion for declaratory judgment, and motion pursuant to Rule 60(b). The matter was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Local Civil Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia. For the following reasons, the Court RECOMMENDS that respondent's supplemental motion to dismiss, ECF No. 122, be GRANTED, Winston's amended petition, ECF No. 59, be DISMISSED WITH PREJUDICE, and Winston's motion for a temporary restraining order or preliminary injunction, ECF No. 127, motion for declaratory judgment, ECF No. 128, and motion pursuant to Rule 60(b), ECF No. 129, be DENIED.

I. STATEMENT OF THE CASE

Winston previously a Virginia inmate,^[1] submitted an amended pro se habeas petition, pursuant to 28 U.S.C. § 2254 on July 20, 2020. ECF No. 59. Winston alleges his federal rights were violated when he was prosecuted in the Circuit Court for the City of Norfolk between 2014 and 2016 for offenses occurring on October 18, 2014. Id. Specifically Winston challenges his convictions for distribution of a Schedule II narcotic substance and possession of cocaine (“drug convictions”), for which he was sentenced on July 14, 2017, to five years and five months, with two years suspended. Commonwealth v. Winston, Nos. CR 16001001-00, -01 (Va. Cir. Ct. July 14, 2017). Winston also challenges his conviction for possession of a firearm by a non-violent felon (“firearm conviction”), for which he was sentenced on July 28,2017, to three years in prison with one year suspended. Commonwealth v. Winston, No. CR 15002834-00 (Va. Cir. Ct. July 28, 2017).

For a summary of Winston's state court proceedings, including his direct appeal and habeas appeal, see the report and recommendation entered December 23,2020. ECF No. 95 (“December R&R”).

Winston listed four grounds for relief in his amended form petition-vindictive prosecution, selective prosecution, double jeopardy, and contempt of court. ECF No. 59, at 611. At the top of the four handwritten pages following Winston's form petition, Winston states, “Additional Claims CR15-2834 selective & vindictive prosecution, double jeopardy, plain error, prosecutorial misconduct, pre[-]accusational delay, discrimination, speedy trial, beyond a reasonable doubt clause, and ineffective counsel, as well as due process.” ECF No. 59, at 17. The rest of the four handwritten pages contain Winston's recitation of the facts surrounding his firearm conviction, his drug convictions, and his prison conditions, without numbering or separately identifying the claims to which the information applies.^[2] Id. at 17-20.

The Court granted respondent's second motion to dismiss the petition, ECF No. 67, and dismissed Winston's amended petition on February 19,2021. ECF No. 102. The United States Court of Appeals for the Fourth Circuit dismissed Winston's appeal of that order finding the Court failed to address all claims raised in Winston's amended petition, remanding for consideration of the unresolved and unnumbered claims, and referencing “prosecutorial misconduct, discrimination, violation of his speedy trial and due process rights, and ineffective assistance of counsel.” ECF No. 111, at 2.

Pursuant to the Court's order following remand, respondent filed a supplemental motion to dismiss the amended petition on March 6,2023. ECF No. 122. Parsing each sentence of the four handwritten pages, the respondent labelled the potential claims as “A” through “J.” ECF No. 123, at 4-5. The Court adopts respondent's listing of the grounds for ease of reference.

In his unnumbered grounds, Winston asserts the following entitle him to relief:

A. that he was the subject of prosecutorial misconduct in the form of vindictive prosecution due to the prosecutor informing his attorney that Winston could either plead guilty to a misdemeanor charge of carrying a concealed weapon or she would nolle prosequi the charges and reindict him (ECF No. 59, at 17);

B. that he received ineffective assistance of counsel where counsel waived his appearance and permitted the entry of a nolle prosequi without Winston being present (ECF No. 59, at 17); C. that he was the subject of vindictive prosecution where the prosecution reindicted Winston following the nolle prosequi with the addition of a disorderly conduct charge (ECF No. 59, at 17);

D. that the prosecutor committed misconduct by destroying evidence by performing a “NIBBIN test” that would make DNA irretrievable (ECF No. 59, at 18);

E. that there was insufficient evidence to convict Winston of possession of a firearm by a felon as no one testified to seeing Winston with a firearm (ECF No. 59, at 18);

F. that the court violated his speedy trial rights with respect to his drug convictions as he objected to every continuance (ECF No. 59, at 18);

G. that the court discriminated against him by “thwart[ing]” Winston's “every effort to be heard and defend [his] right to a speedy trial,” stating the “selective and vindictive reasons” during Winston's sentencing (ECF No. 59, at 18);

H. that the prosecutor committed misconduct by expressing “personal” opinions about Winston that were outside the scope of the evidence during his sentencing (ECF No. 59, at 19);

I. that the Virginia Department of Corrections discriminated against him by subjecting him to hardship for participating in “certain types of religious exercise” (ECF No. 59, at 19); and

J. that the Virginia Department of Corrections retaliated against him “for legal activity” (ECF No. 59, at 20).^[3]

Winston filed a response to the supplemental motion to dismiss on March 22,2023. ECF No. 126.

II. ANALYSIS

As detailed below, Winston fairly presented ground E, alleging insufficient evidence for the firearm conviction, to the Supreme Court of Virginia in his direct appeal, exhausting his state remedies. The state court's decision to dismiss this claim on the merits is entitled to deference.

Grounds I and J, challenging actions of the Virginia Department of Corrections during Winston's incarceration, are not cognizable in a petition for a writ of federal habeas corpus.

Winston failed to fairly present grounds A through D and F through H to the Supreme Court of Virginia, and the grounds are simultaneously exhausted and procedurally defaulted as Winston would now be precluded from bringing these grounds in state court due to the state statute of limitations and prohibition on successive petitions. Winston has failed to show cause and prejudice sufficient to excuse his procedural default of these grounds.

A. Winston exhausted his state court remedies with respect to ground E by fairly presenting the ground to the Supreme Court of Virginia, and the state court decision denying the claim is entitled to deference.

A federal court cannot grant a writ of habeas corpus to a person in custody pursuant to a state court judgment unless that person “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The exhaustion doctrine ensures that state courts have a meaningful opportunity to consider claims alleging constitutional violations before those claims are presented to a federal court. Rose v. Lundy, 455 U.S. 509, 515 (1982). To be exhausted, a claim must have been fairly presented to the highest state court, with the relevant operative facts and legal theories provided. Pruett v. Thompson, 771 F.Supp. 1428,1436 (E.D. Va. 1991). Fair presentation means that a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Fair presentation does not require that the highest state court decide a properly presented issue, just that it have a chance to do so. See Baker v. Corcoran, 220 F.3d 276, 291 (4th Cir. 2000).

Winston exhausted ground E, alleging insufficient evidence to support his firearm conviction, by fairly presenting the ground to the Supreme Court of Virginia in his direct appeal. ECF No. 68-7, at 41-43.

1. Section 2254 provides the standard of review for habeas claims adjudicated in state court.

When a claim has been properly exhausted and adjudicated on the merits in state court, this Court assesses the state court adjudication pursuant to 28 U.S.C. § 2254(d), rather than reviewing the merits of such a claim de novo. Section 2254(d) provides that a federal court may not grant relief on any claim that was adjudicated on its merits in state court, unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

A state court decision is “contrary to” clearly established federal law when a state court applies a rule different from the governing law articulated by the United States Supreme Court or arrives at a conclusion opposite that of the Supreme Court on...