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Harper v. Director of Department of Corrections

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

February 12, 2016



RODERICK C. YOUNG, Magistrate Judge.

Alfred Allen Harper, a Virginia inmate proceeding pro se, filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254 (hereinafter "§ 2254 Petition") (ECF No. 1) challenging his convictions in the Circuit Court of the County of Henrico (hereinafter "Circuit Court"). The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Harper argues entitlement to relief on the following grounds:[1]

Claim 1 "Violation of petitioner['s] constitutional right to face his accusers in court and be present at this trial." (§ 2254 Pet. 5.)

Claim 2 "Failure to disqualify judge for bias and prejudice...." ( Id. at 7.)

Claim 3 "Ineffective assistance of counsel." ( Id. at 8.)

Claim 4 "Convictions obtained by plea of guilty that was unlawfully induced and not made with [an] understanding of [the] charges or [the] consequences of [the] plea." ( Id. at 10.)

Claim 5 "Ineffective assistance of counsel (appeal attorney)." ( Id. at 11.)

Claim 6 "Denial of discovery and inspection." ( Id. ).

Claim 7 "Denial of competency determination." ( Id. ) Respondent has moved to dismiss on the grounds that Claims 1, 2, and 7 are procedurally defaulted and the remaining claims lack merit.[2] For the reasons that follow, it is RECOMMENDED that the Motion to Dismiss be GRANTED.

A. Factual and Procedural History

Harper was charged with multiple counts of credit card theft, credit card fraud, and conspiracy to commit credit card fraud in the Circuit Court. Prior to trial, Harper waived the right to be represented by counsel, and the Circuit Court appointed Gregory Cassis to act as Harper's standby counsel. Harper v. Commonwealth, No. 1369-12-2, at 2 (Va. Ct. App. Nov. 28, 2012). On May 10, 2012, Harper pled guilty to one count of credit card theft, two counts of credit card fraud, and one count of conspiracy to commit credit card fraud. Id. at 1. Harper then waived his right to a jury trial with respect to the remaining four charges of credit card theft. Id. at 1, 3.

Thereafter, the Circuit Court took a recess to excuse the jury. Id. at 3. When the proceedings resumed, Harper

stated that he wanted to withdraw his guilty pleas because he was not "feeling all right about them." [Harper] explained that he felt pressured to enter the guilty pleas because he was not given his clothes to wear to court, he was not given his paperwork, and he was forced into court wearing stripes. The trial judge denied [Harper's] request and found that his guilty pleas to four charges were entered knowingly and voluntarily. After the trial judge asked for opening statements, [Harper] stated he was not going to participate in the trial and he wanted to go back to the bullpen. The trial judge again asked for opening statement, and appellant made several vile and racially offensive statements to the trial judge and threw his papers. The trial judge found [Harper] in contempt and excluded [Harper] from the courtroom. The trial judge found that the vile and offensive statements were made voluntarily by [Harper].


Thereafter, in Harper's absence, the Circuit Court tried Harper on the four remaining charges of credit card theft. The Circuit Court found Harper guilty of three more charges of credit card theft. Id. at 1. The Circuit Court sentenced Harper to an active term of eight years of imprisonment for the credit card related charges. Commonwealth v. Harper, Nos. CR11-3122, 3123, 3125, through 3127, 3129, 3130-00F, at 1-2 (Va. Cir. Ct. May 17, 2012). The Circuit Court also found Harper in contempt of court for his offensive conduct and imposed thirty-five months of incarceration for six counts of contempt. Id. at 2-3. The Circuit Court appointed Mr. Cassiss to represent Harper on appeal. (May 10, 2012 Tr. 140.)

On direct appeal to the Supreme Court of Virginia, Harper asserted that the Circuit Court exceeded its sentencing authority when it imposed the sentence for summary contempt. Petition for Appeal at 1, Harper v. Commonwealth, No. 122208, at 4 (Va. filed Dec. 27, 2012). The Supreme Court of Virginia refused Harper's petition for appeal. Harper v. Commonwealth, No. 122208, at 1 (Va. June 7, 2013).

Subsequently, Harper filed a petition for a writ of habeas corpus with the Supreme Court of Virginia wherein he raised many of the same claims that he presents in this § 2254 Petition. On July 11, 2014, the Supreme Court of Virginia denied the petition. Harper v. Dir., Dep't of Corr. of Va., No. 140213, at 1 (Va. July 11, 2014).

B. Analysis

1. Exhaustion and Procedural Default

State exhaustion "is rooted in considerations of federal-state comity, '" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted). "To provide the State with the necessary opportunity, ' the prisoner must fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. (quoting Duncan, 513 U.S. at 365-66). Fair presentation demands that a petitioner must present "both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when he or she "fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.1).[3] The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citations omitted). Absent a showing of cause and prejudice or his actual innocence, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).

Here, the Supreme Court of Virginia found that Harper procedurally defaulted Claims 1, 2, and 7 pursuant to the rule in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because Harper could have, but failed, to raise these claims at trial and on direct appeal. Harper v. Dir., Dep't of Corr. Va., No. 140213, at 1-2, 4 (Va. July 11, 2014) (citing Slayton, 205 S.E.2d 682). Slayton constitutes an adequate and independent state procedural rule when so applied. See Mu'Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Thus, Harper has procedurally defaulted Claims 1, 2, and 7 unless he demonstrates cause and prejudice to excuse his default or his actual innocence. Harper obliquely suggests that the ineffective assistance of counsel ...

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