United States District Court, W.D. Virginia, Roanoke Division
DONNA J. HOCKMAN, Petitioner,
PHYLLIS BASKERVILLE, Respondent.
MICHAEL F. URBANSKI, District Judge.
Donna J. Hockman, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging her convictions entered by the Circuit Court of Rockingham County. Respondent filed a motion to dismiss, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, the court grants Respondent's motion to dismiss because Petitioner procedurally defaulted all but two of the instant 240 habeas claims and the two remaining claims do not entitle her to relief.
A jury found Petitioner guilty of first-degree murder and using a firearm in the commission of murder for fatally shooting her boyfriend, despite her arguments that she acted in self defense and defense of her son. The Circuit Court followed the jury's sentencing recommendation and sentenced petitioner to life imprisonment plus three years.
On direct appeal to the Court of Appeals of Virginia, Petitioner argued that the evidence was insufficient to sustain her convictions; the trial court erred in denying a pretrial motion for a continuance; and the trial court erred by admitting evidence from a witness about a wager for sexual favors between Petitioner and the victim. The Court of Appeals of Virginia considered and denied the merits of these claims, and the Supreme Court of Virginia rejected the appeal consisting of the same claims.
Petitioner subsequently filed a 236-claim state habeas petition pro se with the Circuit Court, which dismissed the petition on January 6, 2012, via a one-page order. Because the order did not identify the substance of the claims or contain findings of facts, conclusions of law, or specific reasons for the denial of each claim as required by Virginia Code § 8.01-654(B)(5), the Circuit Court entered a new order on January 18, 2012, that vacated the one-page dismissal order. That same day, the Circuit Court also entered a second, thirty-nine page order that dismissed the petition because the claims were procedurally defaulted or meritless.
Petitioner's subsequent petition for appeal to the Supreme Court of Virginia listed seven enumerated claims, each describing how the Circuit Court erred in only the habeas proceeding. The seven enumerated claims were preceded by the unenumerated foreword, "[Petitioner] reincorporates all previous claims listed in the original Habeas and Supplement to the Habeas Petition, as error." The Supreme Court of Virginia refused the appeal, noting, "Upon review of the record in this case and consideration of the argument submitted in support of granting the appeal, the Court is of opinion there is no reversible error in the judgment complained of" Hockman v. Hobbs, No. 120567, slip op. at 1 (Va. Nov. 15, 2012). Petitioner argued in a petition for rehearing that the Circuit Court erred by initially issuing the simple, one-page denial of her 232-claim habeas petition. The Supreme Court of Virginia denied the petition for rehearing, and the Supreme Court of the United States declined to issue a writ of certiorari.
A federal court "may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted [..] state remedies by presenting [the] claims to the highest state court." Baker v. Corcoran , 220 F.3d 276, 288 (4th Cir. 2000). An exhausted claim is one that is fairly presented to the state's highest court, meaning that the essential legal theories and factual allegations advanced in federal court are the same as those presented to the highest state court. Pruett v. Thompson , 771 F.Supp. 1428, 1436 (E.D. Va. 1991), aff'd, 996 F.2d 1560 (4th Cir. 1993) (citing Picard v. Connor , 404 U.S. 270, 275-76 (1971)).
Petitioner argued to the Supreme Court of Virginia on direct appeal that the evidence was insufficient to sustain her convictions and that the Circuit Court's denial of a pretrial motion for a continuance was error. Consequently, these two instant habeas claims are exhausted. However, Petitioner did not present any other instant habeas claim to the Supreme Court of Virginia via direct appeal.
In the appeal to the Supreme Court of Virginia from the habeas proceeding, Petitioner presented seven enumerated claims after writing her foreword, "[Petitioner] reincorporates all previous claims listed in the original Habeas and Supplement to the Habeas Petition, as error." Per Virginia law, the Supreme Court of Virginia considers only those errors presented in assignments of error. See Va. Sup.Ct. R. 5:17(c)(1)(i)-(iii); Yeatts v. Murray , 249 Va. 285, 290-91, 455 S.E.2d 18, 21 (1995). An assignment of error must "list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely." Va. Sup.Ct. R. 5:17(c)(1). Furthermore, the assignments of error must "address the findings or rulings in the trial court or other tribunal from which an appeal is taken, " and an assignment of error that "merely states that the judgment... is contrary to the law and the evidence is not sufficient." Va. Sup.Ct. R. 5:17(c)(1)(iii).
In accordance with Virginia law, the foreword was not sufficient to present "all previous [habeas] claims" to the Supreme Court of Virginia. Petitioner's foreword was not an assignment of error because it was not clear or concise and did not allege specific errors in the Circuit Court's order that dismissed the habeas petition, and Virginia law prohibits incorporating arguments made to an inferior court into a petition for appeal by a mere reference. Va. Sup.Ct. R. 5:26(g); Lenz v. Warden , 265 Va. 373, 376-77, 579 S.E.2d 194, 196 (2003), rev'd on other grounds, 267 Va. 318 , 593 S.E.2d 292 (2004). Consequently, the Supreme Court of Virginia would not review "all previous [habeas] claims listed" in the petition filed with the Circuit Court. See Va. Sup.Ct. R. 5:17(c)(1)(i) ("Only assignments of error assigned in the petition for appeal will be noticed by this Court."). After the Supreme Court of Virginia denied her habeas appeal, Petitioner referenced the aggregate 232 state habeas claims in a petition for rehearing, but such a simple reference in a petition for rehearing does not fairly present each claim to the Supreme Court of Virginia. Hedrick v. True , 443 F.3d 342, 365 n.1 (4th Cir. 2006). Furthermore, the court "will not go further and determine whether the Virginia Supreme Court should have seen another claim in h[er] filings." Mallory v. Smith , 27 F.3d 991, 996 (4th Cir. 1994). Therefore, Petitioner failed to present "all previous [habeas] claims" to the ...