United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
Michael Lee Everage, 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 first degree murder entered in the Circuit Court for the City of Virginia Beach. After respondent moved to dismiss the petition, Everage was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Civil Rule 7(K), and he has filed a reply. Accordingly, the matter is now ripe for disposition. After careful review, the petition will be dismissed with prejudice.
On December 22, 2008, a jury convicted Everage of first degree murder for the bludgeoning death of his wife, Robyn. Case No. CR07-2653. The facts underlying the conviction were described by the Court of Appeals of Virginia as follow:
On February 19, the day the victim was last seen alive, appellant received a taxi ride from his car, parked approximately thirty minutes away, to the victim's residence. Appellant later traveled to an automotive supply store and bought a side-view mirror for a Ford vehicle. The receipt for the item and its packaging were located on the victim's property, and appellant's fingerprints were on the packaging. Appellant was seen at the victim's house that day. He operated a loud generator and loaded something into the victim's car, which was backed into the driveway. A neighbor saw appellant drive away in the victim's car between 2:30 and 3:00 p.m. He dropped off his young child at Dana Barnes' house. At 4:00 that afternoon, a vehicle matching the description of the victim's car was seen stopped along the side of the road near where the victim's body was later recovered. A witness saw the vehicle parked with its back hatch open and saw a man standing by the front passenger door, which was also open. At approximately 4:30, appellant bought twenty bundles of firewood at a nearby convenience store. Later, the victim's car was again seen by the side of the road. The following morning, the car was still there with two flat tires. At 6:00 p.m., appellant returned to Barnes' house to pick up his daughter. Barnes explained appellant seemed nervous and shaken and smelled like bleach.
On February 20, 2007, appellant reported the victim missing. Appellant. Barnes. and David Jantzen searched for the victim and located her car along Shore Drive in Virginia Beach. The next day, the three searched the area around where the victim's car had been parked and Barnes came across the victim's body in a clearing approximately thirty feet from the road. The spot was approximately a quarter of a mile from where appellant had left his car and been picked up by the taxi on February 19. Near the victim's body was a Ford side-view mirror with the victim's DNA on it.
Appellant was arrested on February 25, 2007. Timothy Gurley testified that he was an inmate with appellant. He explained that in May 2007, appellant admitted having killed his wife. Appellant asked Gurley to assist him in covering up the crime and sought to have Gurley help him implicate another in the murder by planting evidence in a neighbor's truck. Gurley presented letters with appellant's fingerprints on them which included instructions for Gurley to follow. Gurley contacted the police. Gurley also explained appellant stated he was motivated to kill the victim because she possessed pictures of him which he believed jeopardized his military career.
Appellant provided conflicting accounts to the police and later admitted he lied to the police and others about the events surrounding the victim's disappearance and death.
Everage v. Commonwealth. R. No. 2032-10-1 (Va. Ct. App. Apr. 13, 2011), slip op. at 2-3; Resp.'s Ex. B.
Prior to trial, Everage filed a pro se motion for substitution of his appointed counsel, Daniel Goode, stating: "I feel that I need a lawyer that can handle this case that has had experience with this type of situation." (T. 1/12/08 at 9). The court inquired if Everage had evidence of a particularized concern regarding his lawyer, and Everage stated that lie did not. (Id. at 9-10). Defense counsel told the court that he had a good relationship with Everage and that Everage was actively involved in the defense, and the prosecutor stated that defense counsel had "worked very diligently in pursuing the investigation." (Id. at 10). The court determined that Everage had expressed only "inchoate concerns" with counsel which the court did not share and which had "no substantial or material basis in fact, " and the motion for substitution was denied. (Id. at 11)
During voir dire, three jurors made statements which are relevant here. Juror Carpenter admitted to having some familiarity with the case after hearing news stories about it, but she stated that she was capable of setting aside such information and rendering a verdict based solely on the evidence presented at trial. (T. 12/9/08 at 132). Everage's motion to strike juror Carpenter for cause was denied on the basis that she had affirmed her ability to base a judgment solely upon the trial, evidence. (Id. at 138). Juror Thomas stated that the case sounded "vaguely familiar" because he read the newspaper. but he was capable of deciding the matter based solely upon the evidence and applicable law. (Id. at 193). Everage did not move to strike Thomas. Juror Corbliss informed the court that she had known the prosecutor because their children had played on opposing Little League teams for one season, but they did not socialize. She affirmed that nothing about their acquaintance would cause her to be more or less favorable to Everage. (Id. at 279-71). Defense counsel did not move to strike Corbliss, noting that her contacts with the prosecutor seem[ed] to be perfunctory and normal, " and the court responded, "I would concur in that sentiment." (Id. at 273).
By final order dated September 28, 2009, Everage was convicted of first degree murder and sentenced to 25 years incarceration. Id . Two months later, Everage's appointed counsel Goode moved to withdraw on the ground that he had just discovered that another attorney in his office had represented the informant. Gurley, more than two years earlier. The court granted Goode's motion and appointed Thomas Reed to represent Everage. (T. 3/10/09 at 9-10). Everage moved for a mistrial based on counsel Goode's conflict of interest, and at an evidentiary hearing on the motion Goode conceded the conflict but testified that he was unaware of its existence until two months after the trial ended. (T. 7/27/09 at 15-16). Goode also stated that he never had any personal contact with the informant prior to Everage's trial. (Id.) The trial court denied the motion for mistrial, holding that "if Mr. Goode did not know there was a conflict then it could have no impact on [Everage's] trial and his defense." (Id. at 66)
Everage pursued a direct appeal, assigning the denial of the motion for mistrial as error. Noting that "the factual and legal bases were fully developed in the hearing on the motion for mistrial, " the appellate court held that its denial was not error, and observed that Everage "cannot assert that the prior representation of the informant by the Virginia Beach Public Defender's Office led Goode to avoid fully challenging [the informant] on the defendant's behalf' because "Goode conducted the trial just as he would have had his office not had any prior interaction with the informant." Resp. Ex. B, slip op. at 5. Everage sought further review by the Supreme Court of Virginia, but his appeal was refused on October 17, 2011. No. 110919.
On June 21, 2012, Everage filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the same claims he makes in this federal proceeding. The Court dismissed the petition on January 3, 2013. Everaue v. Warden, Greensville Corr. Ctr., R. No. 121059 (Va..lan. 3, 2013); Resp. Ex. A. The court subsequently denied a motion for rehearing. R. No. 121059, and Everage timely filed the instant application for § 2254 relief on or about April 16, 2013.
II. Claims Raised
Everage makes the following claims:
1. The trial court erred in denying his Motion to Appoint New Counsel, which "constructively" deprived him of his constitutional right to effective assistance of counsel. In this regard, the trial court failed to:
(a) consider the extent of the conflict between Everage and his counsel;
(b) make adequate inquiry into his concerns regarding his counsel; and
(c) hear available witnesses and other evidence supporting petitioner's concerns.
2. He was denied effective assistance of counsel during voir dire because his attorney:
(a) refused to withdraw after Everage expressed his doubts to the court;
(b) refused to seek guidance and assistance from an experienced criminal trial attorney during jury selection;
(c) refused to consult with Everage during jury selection:
(d) failed to familiarize himself with state statutes relating to jury selection; and
(e) failed to use peremptory strikes to remove potentially biased jurors.
In an unnumbered portion of claim 2, petitioner claims that he was denied due process when the court denied a motion to transfer venue due to adverse media publicity, ' denied his motion to strike a potentially biased juror, and committed errors during jury selection. He also asserts that counsel's aggregate errors during jury selection amounted to ineffective assistance.
3. He was denied effective assistance because his trial counsel failed to:
(a) subpoena exculpatory evidence as Everage requested;
(b) call witnesses who would have provided critical testimony;* and
(c) investigate the facts of the case and develop a defense.
In an unnumbered portion of claim 3, Everage alleges that his rights to due process and effective assistance were violated when the Commonwealth failed to produce audio recording or transcripts of his 911 calls to the police. He also alleges that the Commonwealth was negligent in failing to advise him during discovery that one of its witnesses previously testified as a paid informant and to produce records which would have discredited the witness' testimony.
4. He was denied effective assistance because his trial counsel:
(a) suffered from hearing loss which impaired his ability to communicate;
(b) suffered from mental confusion which affected his ability to recall pertinent information:
(c) failed to present a coherent closing argument:
(d) failed to object at critical moments' in the trial: and
(e) had an aggregate of performance errors which cumulatively impaired [Everage's] defense, denying [him] his right to a fair trial.'
In an unnumbered portion of claim (4), Everage asserts that he was denied effective assistance because counsel was "unprepared, unskilled, and unprofessional."
5. He was denied effective assistance of counsel because counsel failed to inquire about potential conflicts of interest with a key prosecution witness.' In addition, he was denied his right to due process because the trial court denied his motion for mistrial after acknowledging the existence of a conflict. Further, he was denied due process when the Commonwealth failed to disclose during discovery a prosecution witness' prior representation by the Virginia Beach Public Defender's Office, which also employed Everage's counsel, Goode.
6. He was denied effective assistance by appellate counsel Reed because the Virginia State Bar reprimanded him for his handling of Everage's appeal. He also received ineffective assistance from appellate counsel Dorsk, who failed to:
(a) communicate with Everage concerning appealable issues,
(b) provide Everage with a copy "of his own appeal;"
(c) notify Everage that his appeal was dismissed due to attorney error;'
(d) notify Everage when the Court of Appeals denied the appeal; and
(e) address specific errors' made by the Court of Appeals in accordance with state procedures and timelines.'
On October 4, 2013, respondent filed a Rule 5 Answer and a Motion to Dismiss, along with a supporting brief and exhibits. Everage filed a brief in opposition. Respondent acknowledges that petitioner's present claims have been exhausted in the state forum. Accordingly, the petition is now ripe for disposition.
III. Procedural Default
Everage's claims 1(a), 1(b). 1(c), and the unnumbered portions of claims 2, 3 and 5 are procedurally barred from review on the merits. A state court's finding of procedural default is entitled to a presumption of correctness on federal habeas corpus review, 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 explicitly rely on the procedural ground to deny petitioner relief. See Ylst v. Nunnemaker , 501 U.S. 797. 802-03 (1991): Harris , 489 U.S. at 259. Second, the state procedural rule used to default petitioner's claim must be an independent and adequate state ground for denying relief. See Harris , 489 U.S. at 260; Ford v. Georgia , 498 U.S. 411. 423-24 (1991). The Fourth Circuit has held consistently that "the procedural default rule set forth in Slayton constitutes an adequate and independent state law ground for decision." Mu'Min v. Pruett , 125 F.3d 192, 196-97 (4th Cir. 1997).
When these two requirements are met, federal courts may not review the barred claim absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris. 489 U.S. at 260. The existence of cause ordinarily turns upon a showing of (1) a denial of effective assistance of counsel, (2) a factor external to the defense which impeded compliance with the state procedural rule, or (3) the novelty of the claim. See Coleman v. Thompson , 501 U.S. 722, 753-54 (1991); Clozza v. Murray , 913 F.2d 1092, 1104 (4h Cir. 1990); Clanton. 845 F.2d at 1241-42. Importantly, a court need not consider the issue of prejudice in the absence of cause. See Kornahrens v. Evan. 66 F.3d 1350 . 1359 (4'h Cir. 1995), cert. denied. 517 U.S. 1171 (1996).
The Supreme Court of Virginia held that Everage's claims 1(a), 1(b), 1(c), and the unnumbered portions of claims 2, 3 and 5 were procedurally defaulted pursuant to Slayton v. Parrigan. 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied. 419 U.S. 1108 (1975). See Everage v. Warden, Resp. Ex. A, slip op. at 2-19. As the Fourth Circuit has held that Slayton is an independent and adequate state law ground to bar federal review, those claims likewise are now barred from ...