United States District Court, E.D. Virginia
JAMES C. CACHERIS, District Judge.
Karsten Obed Allen, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of abduction, attempted robbery, and other offenses in the Circuit Court for the City of Richmond. On October 20, 2013, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Allen was provided the opportunity to file responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and he filed a reply on October 30, 2013. Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will he dismissed, with prejudice.
On January 6, 2010, following a jury trial, Allen was convicted of abduction with intent to extort money, attempted robbery, possession of a firearm by a convicted felon, wearing body armor while possessing a firearm, and two counts of use of a firearm in the commission of a felony. Case No. CRO9F-3295-3300. Prior to trial, the Commonwealth's request to try petitioner and his codefendant, Carol Norman Drew, Ill. jointly was granted. At trial, petitioner represented himself with the assistance of standby counsel. Following a hearing on April 9, 2010, petitioner was sentenced to thirty-four (34) years incarceration. Ed.
Allen took a direct appeal of his convictions, raising six (6) assignments of error. A single judge of the Court of Appeals of Virginia granted an appeal as to petitioner's contention that the trial court erred in granting the Commonwealth's motion for joinder where the joint trial created actual prejudice. Allen v. Commonwealth , R. No. 0755-10-2 (Va. Ct. App. Nov. 23, 2010); Resp. Ex. A. A three-judge panel subsequently declined to grant petitioner any additional assignments of error and gave reasons for its concurrence that those issues right fully were denied. Allen v. Commonwealth , R. No. 0755-10-2 (Va. Ct. App. Jan. 19, 2011); Resp. Ex. B. Following briefing and oral argument, the judgment of conviction was affirmed in a published opinion. Allen v. Commonwealth , 58 Va.App. 618, 712 S.E.2d 748 (2011); Resp. Ex. C. Allen's petition for further review by the Supreme Court of Virginia was refused without written opinion on December 14, 2011. Allen v. Commonwealth . R. No. 111597 (Va. Dec. 14, 2011); Resp. Ex. D.
Allen thereafter petitioned the Supreme Court of Virginia for a writ of habeas corpus, raising multiple claims. The petition was denied and dismissed on April 23, 2013. Allen v. Warden, Keen Mountain, R. No. 121727 (Va. Apr. 23, 2013); Resp. Ex. E.
Allen next turned to the federal forum and timely filed the instant application for relief pursuant to 28 U.S.C. § 2254 on June 2, 2013. Allen makes the following claims:
1. He was denied his right to effective assistance of counsel where the trial court failed adequately to inquire as to the conflict between petitioner and his appointed counsel, failed to appoint new counsel, and forced petitioner either to represent himself or to proceed to trial with counsel with whom a conflict existed.
2. His right to self-representation was violated where the trial court made a ruling that prevented petitioner from acting on unsolicited participation by standby counsel.
2A. He was denied effective assistance of counsel where standby failed to assert the prejudice that would result when the court read a modified version of an Allen charge to the jury and thus failed to preserve the issue for appellate review.
3. He was denied his right to a fair trial when the trial court denied his motion for severance and the joinder resulted in actual prejudice arising from the presentation of mutually exclusive and antagonistic defenses.
4. The trial court denied him a fair trial when it read a modified Allen charge and made coercive comments on the jury's choice to continue deliberations.
5. His right to due process was violated when the court failed to read in open court a verdict for each charge on which he was tried.
6. His right to due process was violated because the evidence was insufficient to sustain the conviction of attempted robbery.
7 He received ineffective assistance of appellate counsel because meritorious issues were not presented,
Petition, Att. 1, "Claims Presented." As noted above, respondent has filed a Rule 5 Answer and a Motion to Dismiss the petition, along with the notice required by Roseboro , 528 F.2d at 309, and petitioner has filed a reply. Petitioner's present claims have been exhausted in the state forum. Accordingly, this matter is now ripe for review.
II. Procedural Default
Several of petitioner's claims are procedurally defaulted from federal consideration. On federal habeas corpus review, a state court's finding of procedural default is entitled to a presumption of correctness, Clanton v. Muncy , 845 F.2d 1238, 1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)), provided two foundational requirements are met. Harris v. Reed. 489 U.S. 255 , 262-63 (1989). First, the state court must have relied explicitly on the procedural ground to deny petitioner relief Id . Second, the state procedural rule relied on to default petitioner's claim must be an independent and adequate state ground for" denying relief Id. at 260; Ford v. Georgia , 498 U.S. 411, 423-24 (1991). When these two requirements have been met, federal courts may not review the barred claims absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris , 489 U.S. at 260. Based upon these principles, a portion of petitioner's Claim 1 (trial court's failure to inquire into petitioner's conflict with counsel) as well as Claim 2 (denial of right to self-representation by preventing him from acting on counsel's unsolicited participation), Claim 3A (misconduct by Commonwealth in moving for joinder), Claim 4 (denial of a fair trial due to modified Allen charge), and Claim 5 (denial of due process when all verdicts were not read aloud) are procedurally barred from federal review.
When petitioner raised the substance of the foregoing claims in his state habeas corpus application, the Supreme Court of Virginia expressly found them to be defaulted pursuant to Slayton v. Parrigan , 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108 (1975) as "non-jurisdictional issue[s that] could have been raised at trial and on direct appeal and, thus, are not cognizable in a petition for a writ of habeas corpus." Allen v. Dir., sum. The Fourth Circuit has consistently held that "the procedural default rule set forth in Slayton constitutes an adequate and independent state law ground for decision." Mit'min v. Pruett , 125 F.3d 192, 196-97 (4th Cir. 1997). Therefore, the ...