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White v. Director, Virginia Department of Corrections

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

March 10, 2014

Nekita Antonio White, Petitioner,
v.
Director, Virginia Department of Corrections, Respondent.

MEMORANDUM OPINION

T. S. ELLIS, III, District Judge.

Nikita Antonio White, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254, challenging the constitutionality of his conviction of multiple offenses following a bench trial in the Circuit Court of the City of Suffolk. Respondent has filed a Rule 5 Answer and a Motion to Dismiss with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and he has filed various documents in response. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed.

I. Background

On July 11, 2011, petitioner was convicted of two counts of threatening to bomb or burn, as well as one count each of making an annoying telephone call and violating a protective order. Case Nos. CR XXXXXXXX-XX through-1422-00.[1] Petitioner appealed the convictions to the Court of Appeals of Virginia, raising the sole claim that the evidence was insufficient to sustain the convictions of threatening to bomb or burn. In its opinion affirming the convictions, the Court of Appeals described the evidence as follows:

[T]he evidence proved that Tarina Parker and appellant have a son and on December 28, 2009, Parker was at her mother's house. Parker testified she heard her mother, Annie White, on the telephone and Annie White sounded upset. Parker testified she took the telephone from Annie White, she spoke to the caller, and the caller cursed and threatened to kill her and to bring her house down. Parker testified appellant was the caller and the caller ID showed COMMVA. Parker testified she hung up, she called the number on caller ID, appellant answered, and she hung up. Parker testified appellant immediately called Annie White's house, appellant told her not to call him, and appellant threatened to kill her. Parker testified she was afraid when appellant threatened her and she was not sure where he was when he made the calls. Parker testified she hung up and called the police. Officer Protzeller arrived, she answered two phone calls from appellant, and appellant repeatedly called Annie White's house while Officer Protzeller was there. Parker testified appellant called thirty-two times that day. Parker had a protective order against appellant. Parker testified she never threatened to shoot appellant and she did not call appellant first on December 28, 2009.
Annie White testified she answered the telephone and she heard someone cursing and threatening to kill Parker. Annie White testified she did not recognize the male voice and the caller hung up. Annie White testified she checked caller ID, called the number, and the man from the prior phone call answered. Annie White testified the man stated, I'm going to kill you, and burn your house up cause you her f-ing mother.' Annie White testified she did not recognize the voice and Parker took the telephone from her. Annie White testified she was afraid and believed appellant would follow through on his threats.
Audrey White, appellant's mother, testified when appellant arrived home on December 28, 2009, he was very upset. Audrey White testified Parker called on December 28, 2009 and she spoke to Parker. Audrey White testified she told appellant that Parker had called and appellant yelled and was angry. Audrey White testified she heard appellant yelling and screaming while on the telephone.
Appellant testified he was at the courthouse trying to get a protective order against Parker because she had called his cell phone. Appellant testified the court gave him Parker's number and he admitted he called Parker, but he explained that he called Parker to ask her not to shoot him. Appellant denied threatening to kill Parker or to burn the house. Appellant denied calling Parker thirty-two times and testified he called her one time on December 28, 2009. Appellant admitted he spoke to Officer Protzeller.

White v. Commonwealth, R. No. 1426-11-1 (Va. Ct. App. Jan. 18, 2012); Resp. Ex. 1. Petitioner sought further review by the Supreme Court of Virginia, and his petition was refused on June 28, 2012. White v. Commonwealth, R. No. 120277 (Va. June 28, 2012); Resp. Ex. 2.

On May 8, 2013, White filed a petition for a state writ of habeas corpus in the trial court in which he raised the following claims verbatim:

1. I'm innocent of the two counts of threaten to burn and bom[b]. There's no evidence to support these claims of me making any threat to burn or bom[b]. They have no evidence to state these claims on. I'm actually innocent of those charges. They have no proof and can't produce any.
2. My accusers are lying and lied to the authorities. There is no scientific evidence that can prove that I made threats to burn and bom[b]. Tarina Parker and Annie L. White lied to the courts and to the authorities.
3. Material fact. They have no evidence and cannot produce any. They have no facts to state there [sic] grounds. I'm innocent of the allege[d] allegations.
4. They have me falsely and unlawfully imprisoned. I didn't commit any threats to burn or bom[b] on December 28, 2009 and it's against the law to ...

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