United States District Court, E.D. Virginia, Alexandria Division
Jerry E. Boyd, Petitioner,
Dir., Dep't of Corr., Respondent.
GERALD BRUCE LEE, District Judge.
This Matter comes before the Court upon review of the respondent's Motion to Dismiss. Jerry E. Boyd, 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 validity of his conviction in the Circuit Court for the County of Pittsylvania, Virginia of object sexual penetration and aggravated sexual battery. The petition was initially filed on March 27, 2014. On August 5, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits. 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 reply on August 25, 2014. For the reasons that follow, petitioner's claims must be dismissed.
On January 20, 2011, a jury convicted petitioner of one count of object sexual penetration and two counts of aggravated sexual battery in the Circuit Court for the County of Pittsylvania. Commonwealth v. Boyd, Case No. CR10000340-01; CR10000342-01. On March 9, 2011, he was sentenced to 25 years' incarceration. Petitioner pursued a direct appeal to the Court of Appeals of Virginia, alleging that the trial court erred: (1) in finding that the victim's testimony was sufficient to support the convictions, (2) in admitting prior consistent statements of the victim, (3) in affirming the jury's sentence recommendation, and (4) in refusing to set an appeal bond. On October 20, 2011, a single judge of the Court of Appeals denied the petition for appeal. Boyd v. Commonwealth, R. No. 0496-11-3 (Va. Ct. App. 2011) (per curiam). Petitioner's request for rehearing was granted, and a three-judge panel denied his appeal and affirmed his conviction on March 6, 2012. Boyd v. Commonwealth, R. No. 0496-11-3 (Va. Ct. App. 2012). On October 3, 2012, the Supreme Court of Virginia refused petitioner's petition for appeal. Boyd v. Commonwealth, R. No. 120558 (Va. 2012).
Petitioner then filed a petition for writ of habeas corpus in the Supreme Court of Virginia, claiming that: (1) his conviction and sentence for both object sexual penetration and aggravated sexual battery violated the Double Jeopardy Clause; (2) the failure of the jury to deliberate for a longer period of time before being discharged in his first trial violated his Due Process rights; (3) trial counsel was ineffective for failing to argue that his charges violated Double Jeopardy; and (4) appellate counsel was ineffective for raising arguments not properly preserved at trial on appeal. On December 20, 2013, the court dismissed the petition. Boyd v. Dir. of the Dep't of Corr., R. No. 131193 On March 27, 2014, petitioner filed the instant federal habeas petition,  alleging that his conviction and sentence for both object sexual penetration and aggravated sexual battery violated the Double Jeopardy Clause; that the failure of the jurors in his original trial to deliberate for a sufficient period of time violated his Due process rights; that trial counsel was ineffective for failing to properly examine all relevant statutes and argue that petitioner's trial violated Double Jeopardy; and that appellate counsel was ineffective for raising arguments not properly presented at trial on appeal.
On August 5, 2014, respondent filed a Motion to Dismiss petitioner's claims. Petitioner filed a response on August 25, 2014. Based on the pleadings and record before this Court, it is uncontested that petitioner exhausted all of his claims as required under 28 U.S.C. § 2254.
II. Procedural Default
A. Claim A
In Claim A, petitioner argues that his convictions and sentences for both object sexual penetration and aggravated sexual battery violate Double Jeopardy, because the offenses are "composed of entirely the same elements." Pet. Att. 3, at 3. The Supreme Court of Virginia, reviewing this claim in petitioner's state habeas petition, held that this claim was procedurally defaulted pursuant to Slayton v. Parrigan , 215 Va. 27, 205 S.E.2d 680 (1974) ((holding that a claim is procedurally defaulted if the petitioner could have raised it on direct appeal but did not). Boyd v. Dir. of the Dep't of Corr., slip op., at 1. If a state court finds, based on an adequate and independent state-law ground, that a claim is procedurally defaulted, the claim is not reviewable in federal habeas. See Coleman v. Thompson , 501 U.S. 722, 729-30 (1991); Williams v. French , 146 F.3d 203, 208-09 (4th Cir. 1998) (internal citations omitted). A state procedural rule is "adequate" if it is "regularly or consistently applied by the state court, "and is "independent" if its application does not depend on the federal Constitution. Williams , 146 F.3d at 209 (internal citations omitted). The only exception to this rule is if the petitioner can show cause and prejudice for the default, or a fundamental miscarriage of justice, such as actual innocence. See, e.g., Harris v. Reed , 489 U.S. 255, 262 (1989) (internal citations omitted).
The United States Court of Appeals for the Fourth Circuit has consistently found 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) (internal citations omitted): see also Vinson v. True , 436 F.3d 412, 417 (4th Cir. 2006) (citing Wright v. Angelone , 151 F.3d 151, 159-60 (4th Cir. 1998)). However, petitioner argues that this Court should review his claim on the merits, because the ineffective assistance of his trial counsel constitutes cause and prejudice for the procedural default. See Pet. Att. 3, at 5 (citing Murray v. Carrier , 488 U.S. 478 (1986)). Petitioner also argues that to not consider this claim would be a fundamental miscarriage of justice, as he is "actually] innocent of all offenses." Id. at 6.
Petitioner's arguments have no merit, however. Petitioner's punishment for both object sexual penetration and aggravated sexual battery did not violate Double Jeopardy. "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States , 284 U.S. 299, 304 (1932); see also United States v. Dixon , 509 U.S. 688, 696 (1993) (holding that the Blockburger test applies both to multiple prosecutions for the same crime and to multiple punishments for the same crime). The elements of object sexual penetration are: (1) penetration of the labia majora or anus of a complaining witness; (2) who is less than thirteen years of age; (3) against the complaining witness' will. See Va. Code § 18.2-67.2(A). The relevant elements of aggravated sexual battery are: (1) sexual abuse; (2) of a complaining witness less than thirteen years of age. See Va. Code § 18.2-67.3(A)(1). "Sexual abuse" is defined as "an act committed with the intent to sexually molest, arouse, or gratify any person, where... [t]he accused intentionally touches the complaining witness's [genitalia, anus, groin, breast, or buttocks]...." Va. Code § 18.2-67.10(2), (6). Therefore, object sexual penetration contains an element-penetration of a specific body part - not included in aggravated sexual battery. Likewise, aggravated sexual battery contains an element - intent - not included in object sexual penetration. The two crimes thus are not the same offense, and petitioner's punishment for both did not violate Double Jeopardy. Counsel was therefore not ineffective for failing to make such an argument, and petitioner has failed to show cause and prejudice for his procedural default.
In addition, petitioner's conclusory statement of actual innocence is not sufficient to show a fundamental miscarriage of justice that would excuse his procedural default. A petitioner who makes a "convincing showing of actual innocence" is entitled to review on the merits of a procedurally-barred claim. McQuiggen v. Perkins, ___ U.S. ___ 133 S.Ct. 1924 , 1928 (2013). To make such a "convincing" argument, however a petitioner must show, through "new reliable evidence... not presented at trial" that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo , 513 U.S. 298, 324, 327 (1995). Petitioner has not provided any evidence to support his statement that he is actually innocent of his charges. Accordingly, he has not met the threshold standard of actual innocence.
Because petitioner can show neither cause and prejudice for his procedural default, nor the existence of a fundamental miscarriage of justice, ...