United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONARD, District Judge.
Markham Andrew Burke, a Virginia inmate, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court criminal convictions and twenty-year sentence for abduction and sexual offenses related to the molestation of a minor victim. After careful review of the record and the parties' arguments on the respondent's motion to dismiss, the court will order that the case be stayed and held in abeyance to allow Burke, with counsel's assistance, to seek additional review of his habeas corpus claims in the state court.
A Roanoke County Circuit Court jury found Burke guilty on November 23, 2009, of aggravated sexual battery under Va. Code Ann. § 18.2-67.3; taking indecent liberties under Va. Code Ann. § 18.2-370; and abduction with intent to defile under Va. Code Ann. § 18.2-48(ii). (Case Nos. CR09-799, CR09-823, CR09-824.) At trial, the Commonwealth's central witness was the alleged victim ("C.W.") who testified that Burke molested her at some point in the summer of 1998 near the time of her eighth birthday. The Virginia Court of Appeals summarized her testimony as follows:
[C.W.] testified that she visited her grandparents' home for a family gathering during the summer of 1998. At one point, [C.W.] left the group and went downstairs alone to use the bathroom. As [C.W.] was leaving the bathroom, she was confronted by [Burke], who was her uncle. [Burke] pushed [C.W.] back into the bathroom. [C.W.] pushed [Burke] away and grabbed the panels of the bathroom door. However, [Burke] grabbed [C.W.] again and lifted her onto the counter beside the sink. [Burke] closed the door. [Burke] then rubbed [C.W.] on her vagina over her clothes. [Burke] pulled out his penis and began masturbating. [Burke] asked [C.W.] to touch his penis, but she did not. [C.W.] jumped off the counter and fled upstairs to her family. [C.W.] did not report the incident to anyone until 2009.
(Va. Ct. App. Opinion 3, Aug. 26, 2010, ECF No. 1-1.)
C.W. gave the following explanation on direct as to why she waited so long to come forward with her allegations against Burke:
[T]he prosecutor asked [C.W.] why she came forward with the allegations against [Burke] in 2009 for events that occurred in 1998. [C.W.] responded that she learned in 2009 that her cousin had made an allegation against appellant regarding sexual misconduct. [C.W.] said she felt she had to "do something" and did not want her cousin to have to testify by herself.
(Va. Ct. App. Opinion 1, Aug. 26, 2010, ECF No. 1-1.)
Burke's trial attorney, Valeria Cook, did not immediately object to either the prosecutor's question or to C.W.'s testimony about her cousin's allegations. On cross-examination, Cook questioned C.W. about her conversation with her cousin. Cook waited until after the Commonwealth rested its case in chief to ask the trial judge to instruct the jurors not to consider C.W.'s testimony about her cousin's allegations of being molested by Burke. The prosecutor objected and proffered that before trial, Cook had received summaries of police interviews of C.W., during which C.W. stated that she reported the incident in January 2009, because her cousin had recently confided that Burke had molested the cousin as a child. The trial judge asked Cook if she was asking the court to take any remedial measure other than the curative instruction she had requested. Cook answered that she was merely seeking a curative instruction.
The trial judge granted Cook's request and instructed jurors to disregard and not attribute any weight or significance to the allegations by C.W.'s cousin, as these allegations were irrelevant to the proceeding. During Cook's closing argument delivered after the Court had offered the curative instruction, Cook again referred to C.W.'s conversation with her cousin.
After six hours of deliberation, the jurors announced that they had reached an impasse, and the trial judge delivered an Allen charge. After resuming their deliberations, jurors sent out a written question for the Court about the sufficiency of the evidenced, to which the judge responded. About half an hour later, the jurors reached a verdict, finding Burke guilty on all three counts.
Cook subsequently moved for a mistrial based on C.W.'s testimony about her cousin's allegations against Burke, which the Court denied. Following the recommendations of the jury, the Court ultimately sentenced Burke to a total active sentence of twenty years in prison, consisting of concurrent sentences of five years for aggravated sexual battery, twenty years for abduction, and twelve months for indecent liberties.
Cook pursued an appeal on Burke's behalf, challenging the trial court's denial of his post-trial motion for a mistrial, based on C.W's testimony about her cousin's accusations of Burke, and the sufficiency of the evidence to support his conviction for abduction with intent to defile separate from the substance of the other offenses charged. (Record No. 0788-10-3.) On August 26, 2010, the Court of Appeals of Virginia denied Burke's appeal, finding that since Burke had not objected to C.W's testimony on direct until after the Commonwealth had rested, the issue was not preserved for appellate review as required under Rule 5A:18 of the Supreme Court of Virginia. Burke then ...