United States District Court, E.D. Virginia, Richmond Division
NORMAN T. JOHNSON, Petitioner,
EDDIE PEARSON, Respondent.
MEMORANDUM OPINION (GRANTING
RESPONDENT'S MOTION TO DISMISS)
HENRY E. HUDSON, District Judge.
Norman T. Johnson, a Virginia inmate proceeding pro se and in forma pauper's, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition"). Respondent moves to dismiss the § 2254 Petition. Johnson has responded. The matter is ripe for disposition. In his § 2254 Petition, Johnson argues entitlement to relief upon the following grounds:
Claim I(A)(1) The Circuit Court violated Johnson's due process rights by accepting his guilty plea because the Circuit Court erred in conducting an inadequate plea colloquy.
Claim I(A)(2) The Circuit Court erred by allowing him to plead guilty to robbery of a residence instead of bank robbery.
Claim I(B) The trial court erred in denying Johnson's motion to withdraw his guilty plea because "did not feel he was guilty." (§ 2254 Pet. 17.)
Claim I(B)(1) The Indictment was defective because it failed to allege the stolen property belonged to a victim.
Claim I(B)(2) The Indictment failed to state a material element of the offense.
Claim I(B)(3) The Circuit Court failed to amend the Indictment to allege bank robbery instead of robbery of a bank teller.
Claim II(A)(1) Trial counsel rendered ineffective assistance by not properly advising Johnson about his guilty plea.
Claim II(B) Trial counsel rendered ineffective assistance by not preparing a defense and calling witnesses.
As outlined below, the majority of Johnson's claims arise from Johnson's attempts to take advantage of immaterial clerical errors in the arrest warrant and in the order entering Johnson's guilty plea.
I. PROCEDURAL HISTORY
A grand jury in the Circuit Court of the County of Dinwiddie, Virginia ("Circuit Court") charged Johnson with robbery under section 18.2-58 of the Virginia Code. The Indictment provided that "[o]n or about July 14, 2009, Norman T. Johnson did unlawfully and feloniously rob Chestney Simmons by assault or otherwise putting a person in fear of serious bodily harm, in violation of § 18.2-58...." Indictment at 1, Commonwealth v. Johnson, No. CR10000118-00 (Va. Cir. Ct. filed May 18, 2010). On July 27, 2010, after the Commonwealth recounted the factual basis to support a conviction for robbery of Simmons, a bank teller, with a firearm, Johnson entered a plea of guilty to robbery under section 18.2-58 of the Virginia Code. The August 24, 2010 order reflecting the July 27, 2010 guilty plea, however, mistakenly listed the offense description as "Robbery: Residence." See Commonwealth v. Johnson, No. CR10000118-00, at 1-2 (Va. Cir. Ct. Aug. 24, 2010). After pleading guilty, Johnson inundated the Circuit Court with pro se, ex parte motions. On May 5, 2011, the Circuit Court entered final judgment, sentencing Johnson to a twenty-year active term of incarceration. See Commonwealth v. Johnson, No. CR10000118-00, at 1-2 (Va. Cir. Ct. May 5, 2011).
Counsel filed a petition for appeal arguing that the Circuit Court erred by not allowing Johnson to withdraw his guilty plea based on the Circuit Court's clerical error in the August 24, 2010 order. The Court of Appeals of Virginia denied the petition for appeal and Johnson's separately filed pro se petition for appeal. Johnson v. Commonwealth, No. 0668-11-2, at 1-3 (Va. Ct. App. Nov. 17, 2011). The Court of Appeals of Virginia explained:
Appellant argues the original warrant, upon which he was arrested, indicated a Virginia Crime Code of "ROB-1215-F9, " the code for robbery in a residence. The indictment to which he pled guilty listed a Virginia Crime Code of "ROB-1211-F9, " the code for robbery of a bank with a firearm. The Virginia Crime Codes are used for administrative purposes only, as stated on the warrant, and do not render Indictments invalid for failure to include or correctly state the code. See Code § 19.2-226. Appellant was arraigned on the indictment on July 27, 2010, at which time he entered a plea of guilty. The Commonwealth summarized the evidence in support of conviction, clearly indicating the robbery occurred in a bank, with the threat of use of a firearm. At that time, appellant did not express any surprise or misunderstanding as to the nature of the charge or facts of the case. Appellant made no objection to the indictment or summary of evidence.
The indictment contained the correct Virginia Crime Code for the facts. Further, both the warrant and indictment contained reference to Virginia Code § 18.2-58, the governing statute, whether the robbery was in a residence or a bank. The face of the indictment named the bank teller and cited the proper Virginia Crime Code and controlling Virginia Code section. The indictment, coupled with the Commonwealth's proffer of evidence, provided sufficient information to put appellant on notice as to the nature of the offense. Appellant did not enter his plea under mistake of any material fact or misconception of the nature of the charge. Therefore, the trial court did not abuse its discretion in denying appellant's motion to withdraw his guilty plea.
Id. at 2. Johnson filed no appeal to the Supreme Court of Virginia.
On October 9, 2012, Johnson filed a petition for writ of habeas corpus in the Supreme Court of Virginia. Petition for Writ of Habeas Corpus 1, Johnson v. Warden of the Greensville Corr. Ctr., No. 121702 (Va. Oct. 9, 2012). In his state petition, Johnson raised the same claims as in his instant § 2254 Petition.
By Order entered April 12, 2013, the Supreme Court of Virginia dismissed Johnson's habeas petition. Johnson v. Warden of the Greensville Corr. Ctr., No. 121702, at 1-5 (Va. Apr. 12, 2013). The Supreme Court of Virginia found that Johnson defaulted Claim I(A)(1), I(A)(2) and I(B) under the rule in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because Johnson failed to raise these claims on direct appeal. Id. at 1-2. The Supreme Court of Virginia further found Claims I(B)(1), I(B)(2), and I(B)(3) were foreclosed by Johnson's validly entered guilty plea. Id. at 2 (citing Peyton v. ...