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Talbert v. Clarke

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

January 27, 2014

RICHARD M. TALBERT, #1150117, Petitioner,
v.
HAROLD CLARKE, Dir. VDOC, 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. The Court recommends denying the petition for writ of habeas corpus.

I. STATEMENT OF THE CASE

A. Procedural Background

Petitioner Richard M. Talbert was detained pursuant to convictions, following a bench trial in the Circuit Court for Middlesex County on March 22, 2010, for assault on a law enforcement officer, refusal to submit to a blood or breath test, speeding 39 in a 25 mile per hour zone, and second offense driving under the influence. Commonwealth v. Talbert, CR09000186-CR09000189 (Va. Cir. Ct. Apr. 21, 2010).[1] Petitioner was sentenced to five years, twelve months and ninety days in prison with two years and six months suspended.

Charles Hadden, Esq., appointed to represent Petitioner during his direct appeal, filed a Notice of Appeal on June 7, 2010. On direct appeal, Petitioner alleged (1) the trial court erred in ruling the evidence was sufficient to prove Petitioner was guilty of second offense DUI within five years, refusal to take a blood or breath test, speeding, and assault and battery on a police officer, and (2) the trial court erred in denying Petitioner's motion to dismiss for lack of a speedy trial. Petitioner's direct appeal to the Virginia Court of Appeals was denied on January 11, 2011. Commowealth v. Talbert, No. 1199-10-2 (Va. Ct. App. Jan. 11, 2011). Petitioner's petition for appeal to the Supreme Court of Virginia was refused on July 28, 2011. Commonwealth v. Talbert, No. 110465 (Va. July 28, 2011).

Petitioner then filed a petition for a writ of habeas corpus with the Supreme Court of Virginia on June 21, 2012. Talbert v. Clarke, No. 121047 (Va. June 21, 2012). The Supreme Court of Virginia dismissed Petitioner's petition on January 9, 2013, finding many claims were barred under Slayton v. Parrigan, 205 S.E. 680 (Va. 1974), and denying the remaining claims of ineffective assistance of counsel on the merits. Petitioner's petition for rehearing was denied on March 7, 2013. Talbert v. Dir. of Dept. of Corrections, No. 121047 (Va. Jan. 9, 2013).

Petitioner filed a petition for writ of habeas corpus in this Court on April 15, 2013, along with a Motion for the Judicial Notice of Petitioner's Assertion of His Actual Innocence. ECF Nos. 1, 2. Petitioner filed an Affidavit on April 17, 2013. ECF No. 3. Respondent filed a Rule 5 Answer and Motion to Dismiss on May 20, 2013. ECF Nos. 7-9. Petitioner filed his Response to the Motion to Dismiss on May 23, 2013. ECF No. 11. On the same day, Petitioner filed a Motion for Leave to Submit a Brief in Support of Allegations, with a brief attached. ECF No. 12. Petitioner filed a second Motion for Leave to Submit a Brief in Support of Allegations with a brief attached on June 7, 2013. ECF No. 15. On December 10, 2013, Petitioner filed a Motion for Leave to Submit December 23, 2009 Transcript. ECF No. 22. On January 21, 2014, Petitioner filed a Motion for Leave to Submit Newly Discovered Evidence. ECF No. 26. Petitioner's motions to supplement the record have been granted, and the additional materials have been filed.

Petitioner's request for an evidentiary hearing is DENIED, as purely legal issues are presented and the Court may adequately resolve the issues as presented in the briefs and the record. See Rule 8 of the Rules Governing Section 2254 Cases. Accordingly, this matter is ripe for review.

B. Factual Background

On February 5, 2009, Petitioner was pulled over by Deputy A.J. Miller of the Middlesex County Sherriff's Office for driving 39 miles per hour in a 25 mile per hour zone. Transcript of Bench Trial at 13, Commonwealth v. Talbert, CR09000186-CR09000189 (Va. Cir. Ct. Mar. 22, 2010) ("Trial Tr."). Petitioner failed a number of field sobriety tests, and was placed under arrest. Trial Tr. 20-24. Petitioner became verbally abusive, though he physically complied with the officer. Trial Tr. 23-24.

After arriving at the sheriff's office, Deputy Miller attempted to read Petitioner the implied consent form. Trial Tr. 24. Petitioner interrupted with abusive language, would not be quiet, and refused to submit to a breath test. Trial Tr. 24-25. Petitioner asked to sit in a holding cell "for a couple of hours" to think about whether he wanted to take the breath test. Trial Tr. 25. Petitioner was handcuffed behind his back, and placed on a bench while Deputy Miller, seated at a desk nearby, filled out the criminal complaint form for refusal to take a breath test. Trial Tr. 26. Petitioner charged across the room towards Deputy Miller. Trial Tr. 26. Deputy Miller attempted to force Petitioner to sit, so that he could be handcuffed to the bench. Trial Tr. 26-28. During the scuffle, Petitioner bit Deputy Miller on his right shoulder, tearing his uniform. Trial. Tr. 28-29. Deputy Miller was wearing a bullet proof vest, and the skin was not broken, but his shoulder was swollen and discolored. Trial Tr. 28-29. A photograph of the right shoulder was admitted into evidence at trial. Trial Tr. 33-34. At some point during the scuffle, Lieutenant James Ellis entered the room. Trial Tr. 26. Deputy Miller placed Petitioner in a modified headlock, but Petitioner remained agitated until Lieutenant Ellis sprayed him with pepper spray. Trial Tr. 28-29.

Petitioner was charged with assault on a law enforcement officer, refusal to take a blood or breath test, speeding, and second offense DUI. He was released on February 6, 2009, on a recognizance bond. On March 16, 2009, Petitioner requested appointment of counsel in Middlesex General District Court, and Richard West, Esq., was appointed to represent him. On June 1, 2009, a preliminary hearing was held in General District Court for the County of Middlesex on Petitioner's assault charge. Petitioner was indicted on July 27, 2009, for felony assault and battery on a law enforcement officer, and trial was set on all charges in the Circuit Court for the County of Middlesex for October 21, 2009. On October 21, 2009, Petitioner's counsel Richard West, Esq., moved for a continuance of the trial and for substitution of counsel. The motions were granted, and the trial was continued to December 2, 2009. Jason Atkins, Esq., was substituted as court appointed counsel for Petitioner. On December 2, 2009, Mr. Atkins moved for a continuance of the trial. The motion was granted, and the trial was continued to January 11, 2010. Petitioner placed his signature on the order indicated he was signing "under duress."

Petitioner filed a Motion for Appointment of Competent Counsel with an affidavit in support on December 21, 2009. A hearing was held on the motion on December 23, 2009. During the hearing, Mr. Atkins's motion to withdraw as counsel was denied. Further, the Commonwealth's attorney and Mr. Atkins made a joint motion for a mental evaluation of Petitioner to determine his competency to stand trial and to determine his sanity at the time of the offense. A commitment order was entered, and Petitioner was taken into custody for the evaluation. The case was continued to January 29, 2010.

On January 20, 2010, Petitioner appealed the denial of his motion for appointment of competent counsel to the Court of Appeals of Virginia. The appeal was dismissed on March 11, 2010, without prejudice to Petitioner's appealing from the final order in his case.

On January 29, 2010, Petitioner was found competent to stand trial, and was released on pre-trial supervision. His trial was set for March 22, 2010. On February 4, 2010, Petitioner, proceeding pro se filed a motion for discovery, a motion to dismiss for violation of the speedy trial act, and a petition for alias writ regarding the Commonwealth's failure to produce any potential video recording from the Sheriff's office on the night of Petitioner's arrest. Mr. Atkins, signing as counsel for Petitioner, requested a hearing on the motions.

On March 17, 2010, a hearing was held on Petitioner's motions. Petitioner appeared with Mr. Atkins as stand-by counsel. Hr'g Tr. 3, March 17, 2010. Petitioner's motion to dismiss for lack of speedy trial was denied. Hr'g Tr. 11. Petitioner's motion for discovery was granted in part (Hr'g Tr. 21, 24, 32), and his motion for a petition for alias writ was denied after an official from the county testified about the video recording system and retention policy. Hr'g Tr. 34-40.

Petitioner's bench trial was held on March 22, 2010. Petitioner indicated he was going to represent himself, and Mr. Atkins was present serving as stand-by counsel. Trial Tr. 5.[2] The following colloquy took place:

Court: Have you had enough time to talk with Mr. Atkins about any defenses that you might have to the charges?
Petitioner: Yes, sir, I believe I have.
...
Court: Are you entirely satisfied with the services of standby counsel?
Petitioner: At this time, yes, sir.

Trial Tr. 8-9. Petitioner was found guilty of all charges. At Petitioner's sentencing, held on May 24, 2010, Mr. Atkins was present as stand-by counsel.

C. Grounds Alleged

Petitioner asserts that he is entitled to relief under 28 U.S.C. § 2254 for the following reasons:

Ground (1) his constitutional rights were violated when "State/Actors" denied his request for transcripts;[3]
Claim (1) prosecutorial misconduct as a result of the prosecutor's infringement of his constitutional rights, privileges, and immunities;
(2) prosecutorial misconduct as a result of the prosecutor's failure to act "with the required competency of an attorney" on behalf of the Commonwealth as required by Part Six of the Rules of the Supreme Court of Virginia;
(3) prosecutorial misconduct as a result of the prosecutor's failure to "inquire into and analyze the factual and legal element(s) of the matter" during Petitioner's prosecution;
(4) prosecutorial misconduct as a result of the prosecutor's decision to conduct the DUI and refusal hearings simultaneously, which prejudiced Petitioner;
(5)-(6) prosecutorial misconduct as a result of the prosecutor's failure to comply with the "professional responsibilities and obligation(s)" of his office;
(7) prosecutorial misconduct as a result of the prosecutor's violation of Petitioner's due process rights;
(8) prosecutorial misconduct as a result of the prosecutor's testifying against Petitioner "in violation of the 1984 Bail Reform Act;"
(9) prosecutorial misconduct as a result of the prosecutor's act of disobeying the trial court's ruling by "directly argu[ing] against this Petitioner gaining access to evidence for his defense;"
(10) prosecutorial misconduct as a result of the prosecutor's failure to advise Petitioner that bail could be revoked or that "any psychological evidence was going to be alleged against him;"
(11) prosecutorial misconduct as a result of the prosecutor's attempt to manipulate the court into incarcerating Petitioner;
(12) prosecutorial misconduct as a result of the prosecutor's attempt to "induce" Petitioner's counsel to "manipulate" the court into incarcerating Petitioner;
(13)-(14) prosecutorial misconduct as a result of the prosecutor's attempt to violate the attorney-client relationship between Petitioner and counsel;
(15) prosecutorial misconduct as a result of the prosecutor's attempt to control counsel during pre-trial hearings;
(16) prosecutorial misconduct as a result of the prosecutor's abuse of his power to isolate and influence Petitioner;
(17) prosecutorial misconduct as a result of the prosecutor's coercion and intimidation of Petitioner to prevent him from contacting other authorities "to report violations of law;"
(18) prosecutorial misconduct as a result of the prosecutor's obstruction of the discovery process;
(19) prosecutorial misconduct as a result of the prosecutor's act of taking advantage of Petitioner because he represented himself;
(20)-(22) and (56) prosecutorial misconduct as a result of the prosecutor's decision to permit Deputies Miller and Ellis to testify untruthfully;
(23) prosecutorial misconduct as a result of the prosecutor's manipulation and misstatement of evidence during closing arguments;
(24) prosecutorial misconduct as a result of the prosecutor's failure to determine if Petitioner requested counsel when Deputy Ellis testified he overheard Petitioner repeating his Miranda rights to himself;
(25) prosecutorial misconduct as a result of the prosecutor's failure to correct the trial court's misstatement of the evidence;
(26) prosecutorial misconduct as a result of the prosecutor's use of Petitioner's repetition of his Miranda rights against him at trial, despite the fact that "the very core [of those rights] consists of the right to remain silent;"
(27) prosecutorial misconduct as a result of the prosecutor's failure to act on the fact that he knew Deputies Miller and Ellis failed to provide Petitioner with ...

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