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Brizuela v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

June 18, 2015

ABEL BRIZUELA, Petitioner,
v.
HAROLD CLARKE, Respondent.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

Petitioner Abel Brizuela, a state inmate who was convicted by a jury of animate object sexual penetration in violation of Va. Code § 18.2-67.2, has filed a motion, by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on a number of claims of ineffective assistance of counsel, as well as a claim that the evidence adduced at trial was insufficient to convict petitioner of animate object sexual penetration. Petitioner's specific ineffective assistance of counsel claims are as follows:

(1) Counsel was ineffective after trial for failing to report to the trial judge, and then for failing to raise on appeal, an allegation of juror misconduct;
(2) Counsel was ineffective at trial for failing to challenge the victim's description of the sexual assault;
(3) Counsel was ineffective at trial for failing to subpoena mental health records of the victim; and
(4) Counsel was ineffective at trial for failing to subpoena records of Internet chats between the defendant and the victim and records of Internet chats between the victim and other individuals.

Petitioner filed his motion on June 25, 2014, and respondent filed a Rule 5 answer and motion to dismiss on September 5, 2014. Subsequently, however, petitioner was granted leave to file a supplemental petition and petitioner, by counsel, filed a supplemental petition on November 26, 2014. On March 2, 2015, respondent filed a Rule 5 answer and a motion to dismiss the supplemental petition. As the parties have fully briefed the issues presented and neither oral argument nor an evidentiary hearing would aid the decisional process, respondent's motion is ripe for disposition.[1] For the reasons that follow, respondent's motion to dismiss must be granted in all respects.

I.[2]

A brief summary of the factual and procedural history of the case places petitioner's motion in context. Thus, the record reflects that in 2009, the complaining witness, Catherine Whisenant, was introduced to petitioner through an online dating website called plenttyoffish.com. After communicating with each other over the telephone several times, petitioner and Ms. Whisenant met in person at an Applebee's parking lot in November 2009. Subsequent to that meeting, the two continued to communicate and in December 2009, the pair met for lunch at Applebee's. Thereafter, petitioner and Ms. Whisenant continued to speak on the phone and communicate through the plentyoffish.com website. Some of their conversations were sexual in nature.

On January 11, 2010, petitioner and Ms. Whisenant went on a date to Salsa's Restaurant, where they spent approximately three hours. During the date, Ms. Whisenant consumed two jumbo margaritas and began to get an "uneasy feeling" about petitioner. This unease apparently stemmed from the fact that petitioner represented online that he was 44 years old, when in fact he was 49 years old. Nevertheless, when the date ended, Ms. Whisenant held hands with petitioner as he drove her back to her house.

When the pair arrived at Ms. Whisenant's home, she invited him inside. During this time, Ms. Whisenant's son was sleeping upstairs. Petitioner and Ms. Whisenant stood in the kitchen for about twenty minutes smoking cigarettes and talking. While in the kitchen, they had their arms around each other and kissed. Subsequently, Ms. Whisenant thanked petitioner for taking her out, told him she had a nice time, and then informed him that it was getting late and that she had to work the next day. It was at this point that petitioner began to make sexual advances towards Ms. Whisenant. She testified that "[a]t one point he grabbed my right hand, so I had a cigarette in my left hand. He brought it around behind me, because he was standing behind me and placed it, my hand, on top of his pants." Ms. Whisenant immediately grabbed her hand back but did not say anything further. In response to petitioner's continued sexual advances, Ms. Whisenant reiterated that she "wasn't ready" and needed to go to work the next day. Ms. Whisenant further testified that petitioner told her "I know you like me and I like you, so why fight it" and that she "might as well just go ahead and let it happen." According to Ms. Whisenant, petitioner eventually threw her against the wall in her kitchen, immobilizing her. He then fondled Ms. Whisenant's breasts, put his hand down her pants, and put his fingers inside her vagina. During this time, Ms. Whisenant testified that she was unable to resist because petitioner was "taller, " "bigger, " and "had me pinned. I could not move."

Petitioner then said "lets go upstairs" to which Ms. Whisenant responded, "no, my son is asleep." Ms. Whisenant testified that she did not cry out or fight petitioner because she feared that her son, who had mental and emotional difficulties, would wake up and would be "devastated" by the situation. She further testified that she was scared that petitioner would severely hurt her if she resisted. Thus, the pair went to the couch in the living room with petitioner's hand on Ms. Whisenant's neck and Ms. Whisenant disrobed. Petitioner then performed oral sex on Ms. Whisenant, and the two had sexual intercourse. Afterwards, the pair went back into the kitchen and smoked a cigarette.

Once petitioner left, Ms. Whisenant took a shower, washed her clothes, and called petitioner on his cell phone; according to Ms. Whisenant, the reason for the call was to ensure that he did not remain in the vicinity of her home. Two days later, Ms. Whisenant told her friend, Marrot Blake, about the incident. According to Ms. Whisenant, petitioner had left numerous phone messages demanding that she meet him, and Ms. Whisenant was fearful for both her and her son's lives. The next day, Ms. Whisenant went to stay with another friend, Kim Hopkins, and told her about the incident. With Hopkins' encouragement, Ms. Whisenant called the police and reported the incident. On January 14, 2010, Ms. Whisenant was examined by a forensic nurse at Riverside Regional Medical Center. The nurse found redness in Ms. Whisenant's genital area that was consistent with sexual intercourse. The nurse further testified that a visual inspection of Ms. Whisenant's body did not reveal any abrasions, bruises, marks, or scratches on her back.

On or about May 17, 2010, a Grand Jury for the Matthews County Circuit Court charged petitioner with one count of committing rape by sexual intercourse accomplished through force, threat, or intimidation; one count of committing forcible sodomy by engaging in oral sex accomplished by force, threat, or intimidation; and one count of committing animate object sexual penetration accomplished by force, threat, or intimidation, in violation of Va. Code § 18.2-67.2. On March 9, 2011, a jury acquitted petitioner on the first two charges, but found petitioner guilty of the third count - animate object sexual penetration. On June 22, 2011, petitioner was sentenced to five years' imprisonment for this offense.

Thereafter, petitioner appealed his conviction, arguing that the evidence adduced at trial was insufficient to support his conviction of animate object sexual penetration. A three-judge panel of the Court of Appeals of Virginia denied this appeal on December 21, 2011.[3] Petitioner then appealed this ruling to the Supreme Court of Virginia. On July 5, 2012, the Supreme Court of Virginia affirmed the Court of Appeals of Virginia's decision[4] and on September 24, 2012, the Supreme Court of Virginia denied petitioner's motion for reconsideration of the ruling denying petitioner's appeal. One year later, on September 23, 2013, petitioner filed a petition for writ of habeas corpus in the Supreme Court of Virginia. In this petition, petitioner asserted the four ineffective assistance of counsel claims that are the subject of petitioner's present motion. On March 28, 2014, the Supreme Court of Virginia denied petitioner's habeas corpus petition in its entirety.[5] On April 26, 2014, petitioner filed a motion for reconsideration of this ruling which was also denied by the Supreme Court of Virginia on June 12, 2014.

Two days later, on June 14, 2014, petitioner filed his original § 2254 motion in this Court.[6] The bases for relief asserted in this motion are petitioner's four ineffective assistance of counsel claims that he asserted in his state court habeas petition. On September 5, 2014, respondent filed a timely Rule 5 answer and motion to dismiss. Thereafter, on September 25, 2014, John C. Kiyonaga, Esq., filed a notice of appearance as petitioner's counsel. On that day, petitioner filed a motion for leave to supplement his § 2254 motion; this motion was granted on October 2, 2014, and petitioner was given sixty days to supplement his § 2254 motion.[7] Pursuant to this Order, on November 26, 2014, petitioner filed a supplement to his § 2254 motion.[8] This supplement added a claim attacking the validity of petitioner's conviction on the ground that the evidence was insufficient to support petitioner's conviction and also added an argument that petitioner's first, third, and fourth claims raised in his original § 2254 motion are subject to de novo review. On March 2, 2015, respondent filed a Rule 5 answer and motion to dismiss petitioner's supplemented § 2254 motion. The parties have fully briefed respondent's motion, and, as such, the motion is now ripe for disposition.

II.

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 is based on an unreasonable application of, clearly established federal law, or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is (i) "contrary to" or (ii) "an unreasonable application of" federal law is based on an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

A state court 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 only if the federal court finds that the state court "identifies the correct governing legal principle from [the United States 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. Moreover, in evaluating whether a state court's determination of the facts is unreasonable, a federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts the presumption of correctness by clear and convincing evidence." Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (internal quotation marks and citations omitted). In other words, this standard "is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015) (citing Cullen, 131 S.Ct. at 1398). The state court "must be granted a deference and latitude that are not in operation when the case involves review under the [applicable] standard itself." Id. (citing Harrington v. Richter, 562 U.S. 86, 101 (2011)). In sum, under § 2254(d), ...


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