Wynn v. Clarke

• Decision Date: 12 August 2022
• Docket Number: 2:21cv90
• Parties: CALVIN W. WYNN, #1767237 Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

CALVIN W. WYNN, #1767237 Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

No. 2:21cv90

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

August 12, 2022

REPORT AND RECOMMENDATION

Lawrence R. Leonard, United States Magistrate Judge.

This matter is before the Court on Petitioner Calvin W. Wynn'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 Harold W. Clarke's (“Respondent”) Motion to Dismiss, ECF No. 18. 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. 18, be GRANTED, and the Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE.

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I, PROCEDURAL BACKGROUND

On August 11, 2016, Petitioner was convicted of Sex Trafficking and Participating in a Racketeering Enterprise in Henrico County Circuit Court (the “Trial Court”). ECF No. 1 at 1. The Trial Court sentenced Petitioner to forty years in prison, with twenty-three years suspended. Id. Petitioner appealed his convictions to the Court of Appeals of Virginia. ECF No. 19, attach. 2; see also ECF No. 1 at 2. According to the factual findings of the Court of Appeals of Virginia, Petitioner's conviction arises out of the following factual background:

On September 20, 2015, Detective Richardson viewed an advertisement in the escort section of Backpage.com Richardson testified the advertisement was for a ‘young lady' posting as ‘Savannah.' Richardson asked ‘Savannah' if she was available to meet him that day, and she directed him to Room 140 at a hotel located in Henrico County. In subsequent text messages, Richardson asked ‘Savannah' if she would perform oral sex on him “Savannah” stated she would do that for an additional $40

As Richardson approached Room 140, a woman exited the room. He asked the woman if she was ‘Savannah,' and the woman replied no. Richardson knocked on the door of Room 140, and Crabill answered. Richardson identified himself as a police officer, and he questioned Crabill about ‘why she was at the hotel.' Richardson identified Crabill as the person depicted in the Backpage.com advertisement as ‘Savannah.'

Richardson identified four other individuals at the hotel-appellant, Jacqueline Mitchell, Jennifer Wagner, and Corrine Griffin. Mitchell was with appellant as they walked into the hotel together. Surveillance units stopped appellant after he knocked on the door of Room 135 where Griffin was located. Richardson testified they found condoms and lubricant in Rooms 135 and 140. He identified Wagner as the person he encountered walking out of Room 140. According to hotel records, Wagner had rented Room 140. Richardson found $390 in cash in a black duffle bag in Room 140. Crabill stated the bag did not belong to her.

Richardson stated a cell phone identified as belonging to appellant contained text messages to and from Crabill's phone. Appellant's cell phone also contained a screen shot of a Backpage.com advertisement. Richardson testified appellant's cell phone contained an outgoing text message, stating in part, ‘I have hoes to tend to.' Also on appellant's phone were text messages that stated in part, ‘[M]y program consists of five women.... I run my show,' and ‘I'm a pimp, not a gigolo.' Another screen shot of text messages on appellant's phone began, ‘Are

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you a pimp?' The response was from ‘Macmoet' and stated, in part, ‘You already know that, you know me, why you acting.' Crabill testified ‘Macmoet' was a name appellant used.

Crabill testified she met appellant on September 5, 2015 at a smoke shop in Houston, Texas. Crabill stated the smoke shop was located on a ‘known track,' or where women engage in prostitution. Crabill stated she was a prostitute at the time, and she testified appellant ‘was trying to get [her] to come be one of his girls, to come work for him and give him [her] money.' She also stated she and appellant participated in a ‘pimp circle' where pimps ‘stand around you and holler' things like, ‘I want you on my team.' Crabill testified appellant ‘was just like, come on, just come get some money with me, I'll be good to you ... we can do this.' She stated, ‘And I believed him and I went.' Crabill, a convicted felon, had pending charges related to this incident.

Crabill stated she began working for appellant in Houston. Wagner, Mitchell, and Griffin were also working with appellant in Houston. Crabill, appellant, and the other women then began to travel together in one vehicle, and the women engaged in prostitution in the cities where they stopped. Three of the women shared a room together, and two of the women would leave when one had ‘a date' ‘because a trick could get scared if there was another girl in the room ... .' Richardson testified prostitutes referred to customers as ‘dates.' Crabill stated she advertised on Backpage.com, and she gave the money she earned to appellant.

Crabill described the travels of the group, and she testified she gave appellant ‘everything' she earned. She also saw the other women give appellant money. If appellant was asleep or unavailable, Crabill gave her money to Wagner who was ‘second in command.' Appellant paid for lubricant and condoms for Crabill.

Crabill stated she traveled to Henrico County from North Carolina with appellant and the other three women. Wagner rented the room in which Crabill, Wagner, and appellant stayed. Crabill stated she began to perform acts of prostitution upon their arrival. Crabill stated she made ‘roughly $700' on September 19, 2015, and she gave the money to appellant.

Crabill stated that on September 20, 2015, appellant took her to Walmart to buy some lingerie. She stated appellant told her she ‘was doing good and to keep it up.' Crabill was buying lingerie to ‘take more pictures and entice.' Appellant gave Crabill the money to pay for the lingerie. While Crabill was away from the hotel, she received text messages from Richardson. Crabill testified she told appellant she had a ‘date,' and appellant drove her back to the hotel, parking at the restaurant, connected to the hotel.

Crabill testified she had told appellant she was unhappy with ‘the way things were going.' She said they were moving too frequently, they were not

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making enough money, and appellant had not kept the promises he made to her. Crabill also stated appellant once hit her in the face when one of her dates ‘went over.'

On cross-examination, Crabill testified appellant would tell the women to post messages in certain cities, but if they did not get enough call volume from their advertising, they would not travel to those locations.

ECF No. 19, attach. 2 at 2-4.

Specifically, on appeal, Petitioner argued that: (1) “the evidence was insufficient to prove he violated the commercial sex trafficking statute because the testimony of Brittni Crabill was not credible and was insufficient to prove [he] caused her to engage in prostitution”; (2) “the evidence was insufficient to prove he committed a racketeering offense because the evidence failed to prove two or more relevant offenses to establish racketeering activity”; and (3) “the evidence was insufficient to prove he committed a racketeering offense where there was no evidence of an ‘enterprise due to no evidence of racketeering activity by three or more people, to include appellant, in the County of Henrico at the hotel where... Crabill was arrested.'” ECF No. 19, attach. 2 at 1, 6, 7; see also ECF No. 1 at 2.

On May 23, 2017, the Court of Appeals denied Petitioner's appeal and found that, with respect to Petitioner's first two grounds for appeal: Crabill's testimony was credible, and the Trial Court could conclude that the evidence was sufficient to prove beyond a reasonable doubt that Petitioner was guilty of sex trafficking and racketeering. ECF No. 19, attach. 2 at 6-7. As for the third ground for appeal, the Court of Appeals denied that ground because Petitioner did not present the argument to the Trial Court as required by Rule 5A:18, and Petitioner could not demonstrate that a miscarriage of justice occurred at the Trial Court. Id. at 7-8.

Petitioner appealed to the Supreme Court of Virginia, and the Supreme Court of Virginia refused Petitioner's appeal on July 11, 2018. Wynn v. Commonwealth, Record No. 171501 (Va. July 11, 2018).

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Petitioner also filed a petition for writ of habeas corpus in the Circuit Court of the County of Henrico (the “State Habeas Court”). ECF No. 19, attach. 3. Therein, Petitioner raised the following claims:

1. a. Petitioner's double jeopardy protections were violated by his conviction for the two offenses:

b. Petitioner's trial and appellate attorneys were ineffective for not raising a double jeopardy challenge to his convictions;

2. a. Petitioner's convictions were supported by insufficient evidence; his indictments were defective;

b. Petitioner's trial and appellate attorneys were ineffective for not raising these claims;

3. a. Petitioner's convictions were based on inadmissible evidence; he was denied the right to confront witnesses; the prosecutor was guilty of misconduct b. Petitioner's trial and appellate attorneys were ineffective for not raising these

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