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Green v. Clarke

United States District Court, Fourth Circuit

January 3, 2014

GEORGE JUNIOR GREEN, #1018973, Petitioner,
v.
HAROLD W. CLARKE, Director of the Virginia Department of Corrections, Respondent.

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

TOMMY E. MILLER, Magistrate Judge.

This matter was initiated by petition for writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia.

I. STATEMENT OF THE CASE

Petitioner George Junior Green ("Green") is in state custody pursuant to convictions in the Circuit Court for the City of Petersburg on June 16, 1998, of conspiracy, four counts of robbery, and four counts of use of a firearm. Commonwealth v. Green, Nos. CR98-004, CR98-005, CR98-0010 through 016 (Va. Cir. Ct. June 16, 1998). Green was also convicted that day of felony murder and use of a firearm during the commission of murder, although those convictions were later overturned pursuant to a writ of habeas corpus. See Green v. Young, 571 S.E.2d 125 (Va. 2002). On October 13, 1998, he was sentenced to a term of 65 years imprisonment, allocated as follows: (a) felony murder (25 years); (b) use of firearm in the commission of murder (3 years); (c) conspiracy to commit robbery (5 years); (d) robbery (4 counts × 5 years = 20 years); (e) use of firearm in the robberies (4 counts × 3 years = 12 years). Commonwealth v. Green, Nos. CR98-004, CR98-005, CR98-008 through 016 (Va. Cir. Ct. Oct. 13, 1998).

Green's direct appeal to the Court of Appeals of Virginia was denied initially on August 6, 1999, and by a three judge panel on November 8, 1999. Green v. Commonwealth of Va., Record No. 0976-99-2 (Va. Ct. App. Aug. 6, 1999 and Nov. 8, 1999). The Supreme Court of Virginia refused Green's petition for appeal on March 28, 2000. Green v. Commonwealth of Va., Record No. 992775 (Va. Mar. 28, 2000).

Green filed a timely petition for writ of habeas corpus with the Circuit Court for the City of Petersburg, which was dismissed on July 31, 2001. Green v. Young, No. CL00000199-00 (Va. Cir. Ct. July 31, 2001). On November 1, 2002, Green's petition for appeal to the Supreme Court of Virginia was granted. Green v. Young, 571 S.E.2d 135 (2002). Green's convictions for felony murder, and use of a firearm in commission of that felony, were set aside, and the case was remanded for a new trial on these charges. Id. at 140-41.[1] The Commonwealth elected not to retry Green on the charges, and the Department of Corrections recalculated Green's sentence by subtracting twenty-eight years, the sentence imposed for the two convictions that were vacated.

Green petitioned for writ of habeas corpus in this court challenging the convictions not vacated by the Supreme Court of Virginia, and the petition was denied and dismissed on December 10, 2003. Green v. Johnson, No. 2:03cv104 (E.D. Va. Dec. 10, 2003).

Green filed a petition for writ of mandamus in the Supreme Court of Virginia, in part seeking a new sentencing hearing, which was dismissed on September 14, 2007. In re Green, Record No. 071761 (Va. Sept. 14, 2007). Green also filed a petition for writ of mandamus in this court requesting that the original trial judge be ordered to re-sentence him, which was dismissed for lack of jurisdiction on November 13, 2007. Green v. D'Alton, No. 2:07cv49 (E.D. Va. Nov. 13, 2007).

Green filed a second petition for writ of habeas corpus with the Circuit Court for the City of Petersburg, asserting he was entitled to a new sentencing hearing following the vacation of his felony murder conviction by the Supreme Court of Virginia in 2002. The circuit court dismissed the petition as untimely and successive. Green v. Watson, No. CL07000899-00 (Va. Cir. Ct. March 7, 2008). Green's petition for appeal to the Supreme Court of Virginia was refused on September 18, 2008. Green v. Watson, No. 080670 (Va. Sept. 18, 2008).

On October 12, 2008, Green filed a petition for writ of habeas corpus in this court, which was granted in part on July 21, 2009, and the court ordered Petersburg Circuit Court to conduct a resentencing within 120 days of the court's order. Green v. Johnson, No. 2:08cv506 (E.D. Va. July 21, 2009).

On November 16, 2009, the Circuit Court for the City of Petersburg, without a jury, an evidentiary hearing, or a pre-sentence report, resentenced Green on his robbery, firearm and conspiracy convictions by imposing the thirty-seven year sentence recommended by the 1998 jury on Green's remaining convictions.[2] Comm. of Va. v. Green, CR98-004, CR98-005, CR98-0010-16 (Va. Cir. Ct. Nov. 16, 2009). On February 3, 2010, Green filed a petition for a writ of habeas corpus in the Supreme Court of Virginia alleging ineffective assistance of counsel and due process violations. Respondent acknowledged that the November 16, 2009 resentencing did not comply with Virginia Code § 19.2-295.1 and this Court's order. The Supreme Court of Virginia agreed and remanded the matter on December 14, 2010, for another resentencing hearing. Green v. Warden of the Wallens Ridge State Prison, No. 100227 (Va. Dec. 14, 2010).

On June 28, 2011, the Circuit Court for the City of Petersburg conducted the first of two resentencing hearings. See Resp. Ex. 1, Affidavit of Wendy K. Brown, Manager of the Court and Legal Services Section for the Virginia Department of Corrections, ¶ 11; Comm. of Va. v. Green, CR98-004, CR98-005, CR98-0010-16 (Va. Cir. Ct. June 28, 2011). During the hearing, the Commonwealth and Green agreed that Green would not be resentenced on four out of the nine convictions. Id. Instead, the Court imposed Green's original sentence of 18 years for those four convictions, and considered his sentence for those convictions as fully served. Id. On September 12, 2011, the Circuit Court for the City of Petersburg sentenced Green to a total active sentence of twenty years on the five remaining convictions. See Resp. Ex. 1 at ¶ 12; Comm. of Va. v. Green, CR98-0011, CR98-0012, CR98-0014-16 (Va. Cir. Ct. Sept. 12, 2011). Green did not appeal to the Court of Appeals of Virginia, or to the Supreme Court of Virginia from the resentencing hearings held June 28, 2011 and September 12, 2011.

Green filed a petition for a writ of habeas corpus in the Supreme Court of Virginia asserting the same claims asserted in the present federal petition on May 18, 2012, which was refused on December 11, 2012. Green v. Warden of the Wallens Ridge State Prison, No. 120929 (Va. Dec. 11, 2012).

On February 19, 2013, Green filed a petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. ECF No. 1. Green asserts that he is entitled to relief ...


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