United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Markham Andrew Burke, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his Roanoke County Circuit Court convictions and twenty-year sentence for abduction and sexual offenses related to the molestation of a minor, C.W. This court has carefully reviewed the parties' pleadings and the state court record, including the video transcript of the trial proceedings and the Supreme Court of Virginia's recent refusal to address the merits of Burke's claims of ineffective assistance of counsel on the grounds of procedural default. The court concludes that the motion to dismiss Burke's federal habeas claims as procedurally barred from review of the merits must be granted.
Although the court has previously reviewed the procedural history in Burke's case, it offers a summary of that history here. Burke pleaded not guilty in the Roanoke County Circuit Court to charges of aggravated sexual battery, taking indecent liberties, and abduction with intent to defile. He stood trial before a jury on November 23, 2009, represented by court-appointed counsel, Valeria Cook, Esq.
The alleged victim, C.W., was the central witness for the Commonwealth and described Burke's offense conduct. 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.)
[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.
(Id. 1.) Cook raised no objection to the question or C.W.'s testimony and, on cross examination, questioned C.W. further about her conversation with her cousin.
After the Commonwealth rested, Cook asked the trial judge to instruct the jurors not to consider C.W.'s testimony about her cousin's allegations against Burke. The prosecutor objected, noting that Cook had been provided pretrial access to summaries of police interviews in which C.W. had 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 seeking any other remedial measure, but Cook asked only for a curative instruction. The trial judge granted her request and instructed jurors not to attribute any weight or significance to the allegations by C.W.'s cousin and to disregard them as irrelevant to the proceeding. In her closing, Cook again referred to C.W.'s conversation with her cousin.
After lengthy deliberations and an Allen charge by the trial judge, jurors found Burke guilty on all three counts. The trial judge denied Cook's post-verdict motion for a mistrial based on C.W.'s testimony about her cousin's allegations against Burke. Following the recommendations of the jury, the Court sentenced Burke to a total active sentence of twenty years in prison. On appeal, Burke challenged the propriety of the trial court's denial of his motion for a mistrial, among other things. In dismissing the appeal, the Court of Appeals of Virginia ruled, however, that this claim was barred from review under Supreme Court of Virginia Rule 5A:18, because Cook had not moved for a mistrial at the time C.W. made the objectionable comments. Through newly retained counsel, Stuart J. Pearson, Burke petitioned the Supreme Court of Virginia for review. In June 2011, however, the Court refused his petition for appeal.
Pearson then filed a timely petition for a writ of habeas corpus on Burke's behalf in the Roanoke County Circuit Court, claiming that trial counsel was ineffective by:
A) "failing to object to clearly objectionable testimony presented by the victim";
B) "fail[ing] to effectively voir dire the jury pool";
C) "fail[ing] to interview witnesses who would have aided in cross-examination of the victim";
D) "fail[ing] to effectively discuss and review the [Commonwealth's] plea offer"; and
E) on appeal, "failing to invoke either the good cause or meet the ends of justice exceptions" to Rule 5 A: 18 to allow the Court of Appeals to reach Question I in Burke's petition for appeal.
Respondent moved to dismiss, based on an affidavit from trial counsel. In response to Burke's allegations in claim A, Cook stated:
When the victim answered my question about why now did she come forward with this allegation over a decade after the alleged incident, her answer was a total surprise when she claimed it was ...