United States District Court, E.D. Virginia, Alexandria Division
CLAUDE M. HILTON, District Judge.
Melvin Eugene Cagle, 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 malicious wounding in the Circuit Court of Prince George County. On June 16, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he filed a Brief in Opposition to Motion to Dismiss on June 27, 2014. For the reasons that follow, respondent's Motion to Dismiss will be granted, and this petition will be dismissed with prejudice.
On January 10, 2011, a jury found petitioner guilty of malicious wounding after he stabbed another man in an argument over a woman. On June 6, 2011, petitioner was sentenced to serve six years in jail and to pay a fine of $50, 000. Case No. CR10000176-00. Petitioner appealed his conviction to the Court of Appeals of Virginia, where it was affirmed by a judge of that court in a written opinion on December 29, 2011. Cagle v. Commonwealth, R. No. 1312-11-2 (Va. Ct. App. Dec. 29, 2011). A three judge panel denied a petition for further review on March 15, 2012. The Supreme Court of Virginia refused petitioner's subsequent appeal on September 27, 2012. Cagle v. Commonwealth, R. No. 120615 (Va. Sept. 27, 2012).
On June 3, 2012, Cagle filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the following claims:
1. He received ineffective assistance because his attorney: (a) was inexperienced and "woefully deficient;" (b) was not supposed to act as lead counsel; (c) advised petitioner not to testify; (d) failed to introduce medical toxicology reports that the victim was highly intoxicated; (e) failed to disclose to the court that Commonwealth's Attorney had once been a member of his law firm and had been fired; (f) failed to investigate the preliminary hearing testimony of the investigating officer; (g) failed to object to the jury instruction on "malice and heat of passion;" and (h) failed to introduce the element of self-defense.
2. He was denied due process where: (a) lead counsel was absent from trial and no motion for continuance was made; (b) trial counsel had a conflict of interest with the prosecutor, who had once been a member of his law firm; (c) the court refused a proposed jury instruction that was relevant to the defense; (d) "logical evidence that was relevant to establish a fact at issue in the case was not allowed to be entered;" (e) counsel would not introduce self-defense; (f) counsel would not allow petitioner to testify; and (g) a toxicology report showing that the victim was under the influence of drugs was not produced.
3. The court abused its discretion by: (a) denying defense motions to strike and set aside the verdict where the Commonwealth failed to prove malice and to disprove heat of passion; (b) giving a jury instruction on flight to avoid prosecution; (c) giving a jury instruction on "heat of passion" that included a reference to a "cooling off period;" and (d) refusing to give proposed instructions on duress and self-defense.
4. He was the victim of prosecutorial misconduct in that the prosecution: (a) influenced the victim to commit perjury by suggesting that it would help him prevail in a civil suit against petitioner; (b) withheld exculpatory evidence that the victim was intoxicated; (c) was "unprofessional and unethical" and labored under a conflict of interest; and (d) wrongfully sent the actual victim to prison.
The Supreme Court dismissed the petition on December 5, 2013. Cagle v. Warden, Green Rock Corr. Center, R. No. 130890 (Va. Dec. 5, 2013).
Cagle next turned to the federal forum and timely filed the instant application for § 2254 relief on March 19, 2014 in the United States District Court for the Western District of Virginia. By Order dated March 21, 2014, it was transferred to this court as the district where the underlying conviction was entered. As noted above, respondent has filed a Rule 5 Answer to the petition, as well as a Motion to Dismiss with a supporting brief and exhibits. (Docket ## 7-9) Cagle was provided with the notice required by Roseboro and Local Rule 7(K), and he has filed a reply, captioned as a Brief in Opposition to Motion to Dismiss. (Docket # 13) Accordingly, this matter is now ripe for disposition.
I. Exhaustion and Procedural Default
In his application for § 2254 relief, petitioner principally reiterates the same claims he made in the state habeas corpus action. To the extent that he does so, his claims are exhausted. As a general rule, a federal petitioner must first exhaust his claims in state court, and failure to exhaust a claim requires its dismissal by the federal court. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515-19 (1982). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, in Virginia, a § 2254 petitioner must first have presented the same factual and legal claims to the Supreme Court of Virginia either by way of a direct appeal, a state habeas corpus petition, or an appeal from a circuit court's denial of a state habeas petition. Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275-78 (1971) for the proposition that for a claim to be exhausted, "both the operative facts and the controlling legal principles' must be presented to the state court."); see Pruett v. Thompson. 771 F.Supp. 1428, 1436 (E.D.Va. 1991), aff'd, 996 F.2d 1560 (4th Cir. 1993) (exhaustion requirement is satisfied when "allegations advanced in federal court... [are] the same as those advanced at least once to the highest state court.").
However, in addition to reiterating the claims that have been adjudicated by the Virginia courts, petitioner includes additional arguments in a section of his petition entitled "Conclusion." See Pet., Att. 2 "Table of Authorities and Claims" at 17-18. The arguments set out in this portion of the petition are procedurally barred from federal review. "A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)). Importantly, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim." Id. (quoting Gray, 518 U.S. at 162). Here, petitioner's unexhausted claims are incapable of exhaustion, as they now would be both untimely, Va. Code § 8.01-654(A)(2), and successive, Va. Code § 8.01-654(B)(2). Therefore, the arguments expressed in the "Conclusion" portion of the federal petition are simultaneously exhausted and defaulted for purposes of federal habeas review. See Bassette v. Thompson, 915 F.2d 932 (4th Cir. 1990).
In addition, in adjudicating petitioner's exhausted claims, the Supreme Court of Virginia expressly found certain portions to be defaulted pursuant to Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108 (1975). The Fourth Circuit Court of Appeals has consistently held 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). Therefore, the Virginia court's express finding that Slayton barred review of portions of petitioner's claims also precludes federal review of their merits.
Federal courts may not review barred claims absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris v. Reed, 489 U.S. 255, 260 (1989). 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 (4th Cir. 1990); Clanton v. Muncy, 845 F.2d 1238, 1241-42 (4th Cir. 1988). Importantly, a court need not consider the issue of prejudice in the absence of cause. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995), cert. denied, 517 U.S. 1171 (1996). As will be discussed below, petitioner has failed to establish cause and prejudice as to any of his defaulted claims.
III. Merits Standard of Review
When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court's adjudication is contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is "contrary to" or "an unreasonable application of federal law requires an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court's determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Importantly, this standard of reasonableness is an objective one. Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court decision that previously addressed the claims rather than the petitioner's free-standing claims themselves." McLee v. Angelone, 967 F.Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139 F.3d 891 (4th Cir. 1998) (table).
The facts underlying petitioner's conviction were described in detail in the opinion issued by the Virginia Court of Appeals. Briefly, at the time of the incident petitioner was dating a woman with whom he had a daughter. On the day of the incident, petitioner went to her home at the same time her former boyfriend, David Alonzo, was there to pick up a basket of laundry. Petitioner began shouting and cursing at Alonzo and accused Alonzo of coming to Virginia to take his woman. Cagle v. Commonwealth, supra, slip op. at 1. This went on for about fifteen minutes, during which petitioner also began to taunt Alonzo and to call him derogatory names. Petitioner then left the premises with his daughter, and warned Alonzo that he should be gone when they returned. Id., slip op. at 2. When petitioner returned about thirty minutes later the yelling continued, with petitioner telling Alonzo that the woman "belonged" to him, that he had "paid for" her, and that she was "his bitch." After petitioner began to gesture at his genital area and suggest that the woman perform a sex act with him, Alonzo told him, "Enough is enough." Petitioner cursed and said it would never be enough because he had a child with the woman. Alonzo told petitioner repeatedly to stop making nasty remarks because the child could hear him, and when Alonzo walked toward petitioner's truck petitioner struck Alonzo in the jaw using his fist. A skirmish ensued during which both men went to the ground. Petitioner eventually got to his feet and opened the passenger door of his vehicle, and the woman yelled to Alonzo to run because petitioner had a gun. Id. When Alonzo got about halfway to his truck he turned and saw that petitioner had a knife, and he grabbed a vinyl siding board and a hammer from his truck to defend himself. Petitioner, wielding the knife, approached Alonzo and said, "I'm going to kill you, m***f***, " and when the two men were about four feet part Alonzo swung the board at petitioner in an attempt to knock the knife away. Within seconds, petitioner swung the knife upward in a slashing motion, and Alonzo was stabbed in both the left forearm and the chest. He was hospitalized for a week for his injuries. Id., slip op. at 3.
Claim One: In his first claim, petitioner asserts that he received ineffective assistance of counsel for several reasons. To establish ineffective assistance of counsel, a petitioner must show that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defendant." Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove that counsel's performance was deficient, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness" id. at 688, and that the "acts and omissions" of counsel were, in light of all the circumstances, "outside the range of professionally competent assistance." Id. at 690. Such a determination "must be highly deferential, " with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also, Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court "must be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its] analysis"); Spencer v. Murray, 18 F.3d 229. 233 (4th Cir. 1994) (court must "presume that challenged acts are likely the result of sound trial strategy").
To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; accord, Lovitt v. True, 403 F.3d 171, 181 (4th Cir. 2005). The burden is on the petitioner to establish not merely that counsel's errors created the possibility of prejudice, but rather "that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension." Murray v. Carrier, 477 U.S. 478, 494 (1986) (citations omitted, emphasis original). The two prongs of the Strickland test are "separate and distinct elements of an ineffective assistance claim, " and a successful petition "must show both deficient ...