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Morrill v. Clarke

United States District Court, Fourth Circuit

November 6, 2013

GENE RAYMOND MORRILL, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

REPORT AND RECOMMENDATION

LAWRENCE R. LEONARD, Magistrate Judge.

Before the Court is the Petitioner Gene Raymond Morrill's ("Morrill") Petition for a Writ of Habeas Corpus [1] filed pursuant to 28 U.S.C. § 2254 ("Petition"), ECF No. 1, and the Respondent's Motion to Dismiss, ECF No. 6. The Motion was referred for disposition to the undersigned U.S. Magistrate Judge ("undersigned") pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. After reviewing the briefs, the undersigned DENIES Morrill's request for appointment of counsel and for an evidentiary hearing on his Petition, ECF No. 11, and disposes of the Motion on the papers without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned finds Morrill's claims are procedurally defaulted and time-barred and, therefore, RECOMMENDS the Respondent's Motion to Dismiss, ECF No. 6, be GRANTED and Morrill's Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE.

I. FACTUAL AND PROCEDURAL BACKGROUND

After pleading guilty, Morrill was convicted August 28, 2008 in the Prince William County Circuit Court of two counts of distributing child pornography in violation of Va. Code § 18.2-374.1, for which he was sentenced to an active term of five years in prison. He did not appeal these convictions or sentences.

Morrill also never filed a state habeas petition. Instead, he submitted the instant Petition, ECF No. 1, his first § 2254, alleging the following: (1) Petitioner was not present in Virginia to commit any crimes (ground one); (2) Petitioner's defense attorney was ineffective for (a) not properly advising Petitioner about pleading guilty (grounds two, four, and eight), (b) failing to insist on the court holding an "exculpatory evidence hearing" (ground five), and (c) not challenging the accuracy of the pre-sentence investigation report (ground six); (3) the nature of Petitioner's current incarceration violates his constitutional rights (ground three);[2] and (4) Petitioner timely filed his Petition because various Dumfries police officers were charged with crimes themselves. ECF No. 1 at 1-3. The Virginia Attorney General, on behalf of the Respondent, submitted a Rule 5 Answer, Motion to Dismiss, memorandum in support, and Roseboro notice on August 12, 2013. ECF Nos. 5-8. Morrill responded to the Respondent's Motion to Dismiss on August 22, 2013, ECF No. 9, with an affidavit in support, ECF No. 10. The Respondent has not replied, and the time to do so has passed. Therefore, the Motion is ripe for disposition.

II. PROCEDURAL ISSUES

A. Exhaustion and Procedural Default

Section 2254 petitions challenge a state's custody of a prisoner "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "In the interest of giving the state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing, a state prisoner must exhaust all available state remedies before he can apply for federal habeas relief." Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998) (citing 28 U.S.C. § 2254(b); Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997)). "To exhaust state remedies, a habeas petitioner must fairly present the substance of his claim to the state's highest court." Id. (citing Matthews, 105 F.3d at 911). In Virginia, that court is the Virginia Supreme Court. "The burden of proving that a claim is exhausted lies with the habeas petitioner." Id. (citing Mallory v. Smith, 27 F.3d 991, 994 (4th Cir. 1994)).

"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard, 134 F.3d at 619. This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id . (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). "A state procedural rule is adequate if it is regularly or consistently applied by the state court' and is independent if it does not rely on a rule of federal constitutional law." Silk v. Johnson, No. 3:08cv271, 2009 WL 742552, at *2 (E.D. Va. Mar. 20, 2009) (quoting Mu'Min v. Pruett, 125 F.3d 192, 196 (4th Cir. 1994) (citing Ake v. Oklahoma, 470 U.S. 68, 75 (1985))). "After determining that a state court relied on an adequate and independent state-law ground for decision, [courts] may... not [inquire] into whether the state court properly applied its own law.'" Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998) (citing Barnes v. Thompson, 58 F.3d 971, 974 n.2 (4th Cir. 1995)).

The Respondent maintains that Morrill did not exhaust his available state court remedies because he failed to present the substance of his claims to the Virginia Supreme Court. ECF No. 7 at 4, 18. However, "the exhaustion requirement for claims not fairly presented to the state's highest court... is met when a state procedural rule would bar consideration if the claim was later presented to the state court." Matthews, 105 F.3d at 911. Virginia Code § 8.01-654(A)(2) provides that "[a] habeas corpus petition attacking a criminal conviction or sentence... shall be filed within two years from the date of final judgment in the trial court or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later." This provision offers an independent and adequate state law ground that bars federal habeas review. See, e.g., Sparrow v. Dir., Dep't of Corr., 439 F.Supp.2d 584, 587-88 (2006). As all of the instant claims concern convictions and sentences from 2008 that Morrill never directly appealed, nor did he initiate collateral review habeas proceedings in any state court, let alone the Virginia Supreme Court, these claims, if now presented to the Virginia Supreme Court, would clearly be time-barred under Virginia Code § 8.01-654(A)(2) and, therefore, are procedurally defaulted.

Morrill may overcome procedural default by "showing [] cause and prejudice or a fundamental miscarriage of justice due to [his] actual innocence." Silk, 2009 WL 742552, at *3 (citing Bousley v. United States, 523 U.S. 614, 622 (1998), and Harris v. Reed, 489 U.S. 255, 262 (1989)). "[C]ause" refers to "some objective factor external to the defense [that] impeded counsel's [or the petitioner's] efforts to comply with the State's procedural rule." Strickler v. Greene, 527 U.S. 263, 283 n.24 (1999) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Morrill acknowledges that he has not previously filed a petition in state court, ECF No. 1 at 1, 3 ("[H]ave you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court? No.... This is my first effort to seek justice...."), and he offers no reason or explanation for why he failed to present his claims to the Virginia Supreme Court. Instead, he claims ignorance of the law, and asks "this humble court to please waive all limits in the name of justice." ECF Nos. 1 at 3; 9 at 1-2. However, Morrill's pro se status and lack of familiarity with Virginia law and federal law are not sufficient cause to overcome procedural default. See Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir. 1991) (citing Smittie v. Lockhart, 843 F.2d 295 (8th Cir. 1988) (petitioner's pro se status and educational background are not sufficient cause under the cause and prejudice test) (additional citations omitted). Absent cause, a prejudice analysis is unnecessary. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995) (noting that courts should not consider the issue of prejudice absent cause to avoid the risk of reaching an alternative holding).

In addition, Morrill cannot demonstrate a fundamental miscarriage of justice because conclusory statements of actual innocence are insufficient, see, e.g., ECF Nos. 3 at 6-7, ¶ I; 9 at 2-3, and he offers no argument, new reliable evidence, or factual contentions to substantiate such a claim. Royal v. Taylor, 188 F.3d 239, 244 (4th Cir. 1999) ("In order to use an actual innocence claim as a procedural gateway to assert an otherwise defaulted claim, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. ") (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)) (emphasis added). Accordingly, the undersigned finds the above claims are procedurally defaulted and, thus, must be dismissed.

B. Statute of Limitations

Section 2254 petitions are subject to a one-year statute of limitations that begins to run from the latest of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" or "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."[3] 28 U.S.C. § 2244(d)(1)(A), (D). Pursuant to § 2244(d)(1)(D), the limitation period "commences when the factual predicate [of the petitioner's claim] could have been discovered through the exercise of due diligence, ' not when it was actually discovered by" him. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000); see also Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004); Carter v. Virginia, No. 3:09cv121, 2010 WL 331758, at *3 (E.D. Va. Jan. 26, 2010). The relevant inquiry, therefore, is "when the petitioner knows, ...


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