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Howell v. Clarke

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

July 9, 2015

David Junior Howell, Petitioner,
v.
Harold W. Clarke, Respondent.

MEMORANDUM OPINION

T. S. ELLIS, III, District Judge.

David Junior Howell, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, challenging the validity of his convictions in the Circuit Court for the County of Henrico, Virginia of one count of grand larceny and two counts of construction fraud. Respondent has 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 replies on January 14 and January 15, 2015. For the reasons that follow, petitioner's claims must be dismissed.

I. Background

On October 1, 2009, petitioner pled guilty to one count of grand larceny, Commonwealth v. Howell, Case No. CR09-1040. On December 17, 2009, petitioner pled guilty in the same court to two counts of construction fraud. Commonwealth v. Howell, Case Nos. CR09-3937, 3938. The court conducted a consolidated sentencing hearing and, by final order dated May 24, 2010, sentenced petitioner to twenty years' incarceration with fifteen years suspended on the grand larceny charge, and five years' incarceration with four years suspended on each construction fraud charge, for a total of seven years' incarceration. Although the instant petition challenges both convictions, petitioner challenged them separately in state court, and they therefore have separate procedural histories.

Petitioner did not note a direct appeal of his construction fraud conviction. On September 2, 2010, however, he filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, alleging ineffective assistance of trial counsel. The court dismissed the petition on its merits on January 13, 2011. Howell v. Dir. of the Dep't of Corr., R. No. 101783. Petitioner did not file any additional challenges to his construction fraud conviction until he filed a petition for a writ of habeas corpus in the Circuit Court on March 7, 2013, challenging all of his convictions.

Petitioner noted a direct appeal of his grand larceny conviction on June 1, 2010. The sole ground petitioner raised in this appeal was that he received ineffective assistance of counsel. By order dated April 26, 2011, the Court of Appeals of Virginia dismissed the appeal, finding that claims of ineffective assistance of counsel are not cognizable on direct appeal. Howell v. Commonwealth, R. No. 1157-10-2. Petitioner then filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on June 14, 2011, alleging in relevant part that (1) appellate counsel rendered ineffective assistance by denying petitioner the right to pursue a direct appeal; and (2) appellate counsel rendered ineffective assistance by not pursuing an appeal to the Supreme Court of Virginia. The Supreme Court of Virginia found that petitioner had adequately alleged that he was denied the right to file a direct appeal. Accordingly, by order dated December 7, 2011, the Supreme Court of Virginia granted petitioner the right to file a delayed appeal. Howell v. Warden of the Deep Meadow Corr. Cntr., R. No. 11161. The court stated that its decision was "without prejudice to the petitioner's right to file a subsequent petition for a writ of habeas corpus limited to the ground or grounds raised in the present petition." Id. at 1. Petitioner then filed a notice of appeal to the Court of Appeals of Virginia on January 23, 2012. By published opinion, the court affirmed petitioner's conviction. Howell v. Commonwealth, 60 Va.App. 737, 732 S.E.2d 722 (Va. Ct. App. 2012). The Supreme Court of Virginia refused petitioner's petition for appeal on March 19, 2013. Howell v. Commonwealth, R. No. 121934.

On or about March 7, 2013, petitioner filed a petition for a writ of habeas corpus in the Circuit Court for the County of Henrico, challenging both his construction fraud and grand larceny convictions. Petitioner alleged the following grounds for relief:

A. His guilty pleas to the construction fraud counts were "invalid" due to ineffective assistance of counsel;
B. His guilty pleas to the construction fraud counts and his Alford[1] plea to the grand larceny count were "void" because the trial court did not conduct an adequate plea colloquy;
C. His Alford plea to his grand larceny count was involuntary because counsel misrepresented the nature of the offense;
D. Counsel rendered ineffective assistance during his direct appeal from the grand larceny charge by failing to challenge the sufficiency of the evidence used to convict him;
E. Trial counsel rendered ineffective assistance in his construction fraud cases by failing to object when petitioner was ordered to pay restitution "for crimes of which he was not convicted;
F. Restitution in his construction fraud cases was ordered for charges which were dismissed, rendering this restitution "null and void;"
G. His pleas to both the construction fraud and grand larceny counts were involuntary because counsel failed to advise him that he ...

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